Chief Justice Suhartoyo (right) and Chief Registrar Muhidin (left) at the plenary ruling hearing on the Supreme Court Law and the KUHAP, Wednesday (11/29/2023). Photo by MKRI/Fauzan.

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JAKARTA (MKRI) — The judicial review examination by the Supreme Court (MA), although adjudicative at the first and final levels, does not imply that the Supreme Court functions as a judiciary reviewing legal facts, such as the authority of the first-instance and appellate courts. In scrutinizing these cases, the Supreme Court examines cases of a continuing nature originating from courts at all levels that have permanent legal force.

This legal opinion was delivered by Constitutional Justice Manahan M. P. Sitompul at a ruling hearing where the Court rejected the material judicial review of Article 50 paragraph (1) of Law No. 14 of 1985 as amended by Law No. 3 of 2009 on the Second Amendment to Law No. 14 of 1985 on the Supreme Court and Article 253 paragraph (3) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) on Wednesday, November 29, 2023.

On case No. 122/PUU-XXI/2023, filed by Asep Muhidin, Rahadian Pratama Mahpudin, and Asep Ahmad (Petitioners I-III), Justice Manahan clearly explained that the examination by the judicial review justice is limited to scrutinizing documents, especially those related to memorandum and counter-memorandum. Meanwhile, when examining judicial review cases based on new evidence, admissible new evidence is limited to determining documents. This means that at the time of the examination, such evidence was not found, and they are discovered only after they were submitted by the applicant to the first-instance court that examined the case. The first-instance court also takes an oath of the party presenting the new evidence in a public trial. Subsequently, the judicial review documents are handed over to the Supreme Court for examination (judicial review).

“Thus, the Court saw no relevance to the Petitioners’ argument that the judicial review trial at the Supreme Court should be attended by the parties in an open public trial. The Court cannot accept the Petitioners’ claim that the judicial review examination can led to validity in scrutinizing new evidence if verified by the parties and the public. Meanwhile, the obligation to appear at the judicial review trial, besides imposing a heavy financial burden on justice seekers who must appear in the Supreme Court, will also result in an accumulation of cases and hinder the resolution of cases in the Supreme Court,” Justice Manahan said at the plenary hearing presided over by Chief Justice Suhartoyo and the other eight constitutional justices. Top of Form

Case Examination Procedure

The Court believes the Petitioners’ argument requesting that the examination of trial proceedings in the appellate court to be conducted with the presence of the parties involved in a public trial has been accommodated within the legal norms governing the procedure for case examination in the appellate court. As elucidated and affirmed by the Petitioners in the petition, based on Article 15 paragraph (1) of Law No. 20 of 1947 on Retrial Courts applicable to Java and Madura, the high court is fundamentally empowered to conduct a retrial and render decisions with three judges, and if deemed necessary, by hearing both parties or witnesses firsthand.

“Without obligating parties and witnesses to appear in the appellate court examination if deemed sufficient by the respective appellate judges and [that they are] capable of deciding the case fairly, there is no urgency to accommodate the Petitioners’ argument. On the contrary, doing so would contravene the principles of expeditious and cost-effective justice, as desired by the Petitioners with regard to case examinations at the cassation and judicial review levels,” Justice Manahan explained.

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Provision on Cassation Hearing Questioned

Advocate, Lecturer Assistant, Journalist Revises Petition on Cassation

Petitioner I is an advocate; Petitioner II is an assistant lecturer at the Garut College of Law; and Petitioner III is a journalist. In order to fight for justice if deemed necessary, the Petitioners submitted a cassation petition to the Supreme Court on unfair decisions. However, in reality, they found either for cassation or judicial review petitions, no supreme justices who examined, tried, and decided the cases had been requested to provide any information and explanation. There has never even been any decision pronounced in an open, public hearing, which is required by Article 40 paragraph (2) of the Supreme Court Law and its elucidation.

Therefore, in their petitum, the Petitioners requested that the Constitutional Court grant the petition by declaring Article 50 paragraph (1) of the Supreme Court Law and Article 253 paragraph (3) of the KUHP unconstitutional and not legally binding; declare the phrase “only if it is deemed necessary” in Article 50 paragraph (1) of the Supreme Court Law not legally binding insofar as it is not interpreted as “mandatory” so that Article 50 paragraph (1) should read, “Examination to the cassation shall be conducted by the Supreme Court, based on the letters and the Supreme Court shall hear the parties or witnesses, or instruct the Court of First Instance or Appeal Court to pass judgment upon the case to hear the parties or the witnesses.”

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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