Legal counsel Azwar presenting the petition’s subject matter at the preliminary hearing of the judicial review of the Criminal Procedure Code (KUHAP), Monday (12/18/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a material judicial review hearing of Law No. 8 of 1981 on Criminal Procedure Code (KUHAP) for case No. 158/PUU-XX/2023 on Monday, December 18, 2023 in the plenary courtroom. This case was filed by Arwan Koty, who was convicted of the crime of slander based on Supreme Court Decision No. 897 K/Pid.Sus/2022 on September 29, 2022. He was sentenced to 6 months after becoming a wanted person and had only been arrested on September 12, 2023. He challenged Article 102 paragraph (1) and Article 108 paragraph (1) of the KUHAP.

Article 102 paragraph (1) of the KUHAP reads, “An interrogator who knows, receives a report or complaint about the occurrence of an event which can reasonably be presumed to be a criminal act is obliged to immediately carry out the necessary examination.” Meanwhile, Article 108 paragraph (1) reads, “Anyone who experiences, sees, observes, and/or becomes a victim of an event which constitutes a criminal act has the right to submit a report or complaint to the examiner and/or investigator orally as well as in writing.”

The hearing was presided over by Deputy Chief Justice Saldi Isra alongside Constitutional Justices Enny Nurbaningsih and Ridwan Mansyur. The Petitioner’s legal counsel, Azwar, said that the subject matter of the petition is related to Article 102 paragraph (1) and Article 108 paragraph (1) of the KUHAP.

“The constitutional loss due to the enforcement of this article, which we consider to be in contradiction with due process of law, includes the lack of legal certainty for the Petitioner related to Article 1 paragraph (3) of the 1945 Constitution,” he explained.

The Petitioner filed this petition because there was a difference in treatment before the law based on “investigation termination warrant,” which resulted in the Petitioner being convicted for a crime. There has never been any person prosecuted based on such a letter or be followed by law enforcement (pro justitia) if the police report is terminated after investigation, except at the investigation stage, or when there is a legally binding court decision as the basis for a slander complaint report. Therefore, the Petitioner feels that his constitutional rights have been violated if this form of law enforcement only applied to him.

“The Petitioner has been processed by the law enforcement based on an investigation termination warrant, so he was sentenced to six months for the criminal offense of slander,” he said.

In addition, based on the principles of law enforcement and human rights protection that have been decided by the Constitutional Court in Decision No. 34/PUU-XI/2023 on March 6, 2014, it can be concluded that Article 102 paragraph (1) and Article 108 paragraph (1) of the KUHAP are not in accordance with the principle of due process of law and do not provide fair legal certainty.

“We believe Article 102 paragraph (1) of the KUHAP only focuses on the investigation process in terms of searching for and discovering criminal events. This means that if the process is terminated at the investigation stage, there is no criminal event, there is no loss, and no coercive measures have been taken,” explained Azwar.

Based on these reasons, the Petitioner requests the Court to grant the Petitioner’s petition and declare Article 102 paragraph (1) and Article 108 paragraph (1) of the KUHAP unconstitutional and not legally binding if not interpreted as “except on the basis of an investigation termination warrant.”

Justices’ Advice

In response to the petition, Justice Enny Nurbaningsih stated that although the Petitioner had never filed a petition to the Constitutional Court, the petition had followed the format stipulated in the Court’s regulation (PMK).

“You just need to strengthen and sharpen the substance. Sharpen your arguments starting from the authority of the Court, please bring up Articles 102 and 108. So, before the legal standing you input the substance of Article 102 paragraph (1) and Article 108 paragraph (1). Then, present the touchstone of Article 1 paragraph (3) and so on, it will make it easier to find. Please write it down here,” Justice Enny said.

Meanwhile, Constitutional Justice Ridwan Mansyur advised the Petitioner to elaborate his losses.

“Is it true that what the Petitioner experienced is a constitutional loss or a norm implementation problem? This is important because the Court is not a normative adjudication body [for] concrete cases. Therefore, we advise the Petitioner to elaborate more clearly on the form of loss,” he said.

Next, Constitutional Justice Saldi Isra said that the Petitioner must be able to differentiate the use of constitutional articles to explain the constitutional rights loss and as a touchstone for review.

“To explain the loss of constitutional rights, look for articles in the Constitution that concern the citizens’ constitutional rights. For example, the right to fair legal certainty, the right to equality before the law. Those are used as the basis to claim that you have suffered a constitutional loss. However, the basis for the review is when the article you are challenging is contested with the articles used as touchstones,” Justice Saldi said to the Petitioner’s legal counsel.

Before concluding the hearing, Justice Saldi informed that the Petitioner would have 14 days to revise his petition and submit it by Tuesday, January 2, 2024. The revised petition should be received by the Constitutional Court no later than 09:00 WIB.

Author       : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Andhini S.F.
Translator  : Najwa Afifah Lukman/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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