Pretrial Deadline Serves to Ensure Legal Certainty
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Constitutional Justice M. Guntur Hamzah delivering the Court’s legal opinions at the ruling hearing for the material judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP), Wednesday (1/31/2024). Photo by MKRI/Ifa.


JAKARTA (MKRI) — The Constitutional Court (MK) dismissed and reject the petitums by Imam Subekti, A bricklayer from Malang, East Java Province, on Article 82 paragraph (1) letter d and Article 83 paragraph (1) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP).

“[The Court] declares the Petitioner’s petition on the judicial review of Article 83 paragraph (1) of Law No. 8 of the KUHAP inadmissible; rejects the Petitioner’s petition for the rest and remainder,” said Chief Justice Suhartoyo at the ruling hearing for case No. 163/PUU-XXI/2023 on Wednesday, January 31, 2024 in the plenary courtroom.

In its legal considerations delivered by Constitutional Justice M. Guntur Hamzah, the Court stated that in Decision No. 102/PUU-XIII/2015, the Court has interpreted the deadline referred to by Article 82 paragraph (1) letter d of the KUHAP, i.e. a pretrial motion is dismissed when the first trial of has commenced, regardless of the agenda of the first trial. The Court’s stance in that decision was affirmed in Decisions No. 66/PUU-XVI/2018 and No. 27/PUU-XXI/2023.

In connection with this, continued Justice Guntur, if a quo the norm is interpreted as “judicial review as desired by the Petitioner cannot be requested,” it would lead to legal uncertainty as referred to in the Decision No. 102/PUU-XIII/2015. This is because the function of a pretrial institution is to control the implementation of the authority of investigators and public prosecutors before the main case is examined by the court. Therefore, seven days is a rational and sufficient time limit to hold a pretrial hearing, because the object and scope of pretrial has been determined in both the KUHAP and Constitutional Court Decision No. 21/PUU-XII/2014.

“Therefore, judicial review of pretrial decision is irrelevant to request,” Justice Guntur said.

Moreover, he added, if a seven-day deadline from the first examination to complete the examination and pretrial hearing is associated with Article 82 paragraph (1) letter d of the KUHAP as interpreted in Decision No. 102/PUU-XIII/2015—i.e. pretrial motions are dismissed when the first hearing has commenced on the subject matter, they are related to each other and are complementary, so the pretrial institution does not require a review mechanism. Therefore, the a quo norm also set a clear deadline for pretrial examinations because the pretrial institution actually carries out the principle of speedy trial. 

Legal Certainty

The Court asserts that both norms are also intended to provide fair legal certainty on the subject matter of cases that previously went through pretrial. In other words, the period of examination and handling of pretrial cases has been regulated in a measurable and definite manner in the a quo article, including the new interpretation based on the Court’s decision. Moreover, the Petitioner’s wish that the main case be postponed until the completion of the pretrial decision would actually cause injustice and legal uncertainty because the main case is intertwined with, among others, a time-limited detention period where the defendant could potentially be released by law and other matters,” said Justice Guntur.

Therefore, the Court views the petition contrary to its stance in Decisions No. 102/PUU- XIII/2015, No. 66/PUU-XVI/2018, and No. 27/PUU-XXI/2023.

Also read:

Builder Challenges Pretrial Motion Dismissal in KUHAP

Bricklayer Revises Petition on Pretrial Motion Dismissal 

Norm Implementation

The Petitioner’s concern that the a quo norm can be used by the judiciary to act arbitrarily and thus harm the applicant of the pretrial motion, the Court stressed, was an issue of norm implementation that is not related to the constitutionality of the a quo norm. In this regard, if what is described in the petition was true, it would be important for the Court to emphasize that all relevant law enforcement officials, in this case judges, are not allowed to act arbitrarily, because such arbitrary actions, in addition to being a violation of procedural (formal) law, also violate code of ethics.

Therefore, in the event of arbitrary actions by law enforcement officials, in this case judges, there are legal mechanisms available to question those actions and unprofessional behavior of judges, such as by reporting the matter to the Judicial Commission. Moreover, by understanding Decision No. 102/PUU-XIII/2015, there should be coordination and synergy between law enforcers so that there is no reason for pretrial judges not to immediately conduct hearings on pretrial cases that have been filed and immediately decide them.

Likewise, the panel of judges examining the main case should carry out hearings procedurally regardless of pretrial. Therefore, if what the Petitioner requested was granted, the essence of the a quo norm and the spirit of the Court’s decisions will be lost and lead to legal uncertainty and injustice in criminal cases that are intertwined with the pretrial process. The Court emphasized that in relation to the a quo norm, there is no urgency for the Court to change its stance. Thus, the Petitioner’s argument was unreasonable according to law.

According to the Court, the provisions in Article 82 paragraph (1) letter d of the KUHAP have provided fair legal certainty and protection for person, family, honor, dignity, as well as the right not to be prosecuted on the basis of retroactive laws as guaranteed in Article 28D paragraph (1) and Article 281 paragraphs (1) and (5) of the 1945 Constitution as argued by the Petitioner. Thus, the Petitioner’s petitum concerning Article 82 paragraph (1) letter d of the KUHAP had no basis in law, while the petitum on Article 83 paragraph (1) of the KUHAP was obscure.

Author       : Utami Argawati
Editor        : Nur R.
PR            : Muhammad Halim
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.


Wednesday, January 31, 2024 | 18:42 WIB 77