Legal counsel Aswar at another judicial review hearing of Law No. 8 of 1981 on Criminal Procedure Code (KUHAP), Wednesday (1/31/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court’s (MK) decided to reject the entire material judicial review petition of Law No. 8 of 1981 on Criminal Procedure Code (KUHAP) by Arwan Koty. The ruling hearing for Decision No. 158/PUU-XXI/2023 in the Court on Wednesday, January 31, 2024.

“[The Court] adjudicated: to reject the Petitioner’s petition in its entirety,” said Chief Justice Suhartoyo delivering the verdict alongside the other constitutional justices in the plenary courtroom.

Having examined the petition, the Court is of the opinion that the Petitioner’s claim about the criminal act that led to his six-month imprisonment was based on an investigation termination warrant was a groundless assumption. That is because sentencing someone for libel is not based on whether there is an investigation termination warrant, but based on at least two valid, incriminating pieces of evidence as the Criminal Procedure Code stipulates.

“Without judging the concrete case that the Petitioner was involved in, in which he was sentenced by a court verdict that has legal force, on the basis of evidence and the judge’s conviction as is regulated in Law No. 8 of 1981, the Court is of the opinion that the fact that the Petitioner experienced was not an issue of norm constitutionality, but of the implementation of the norm,” said Constitutional Justice Ridwan Mansyur delivering the Court’s opinion.

The Court also believes that Article 108 paragraph (1) of the Criminal Procedure Code gives anyone the right to make a report to a criminal examiner and/or investigator after they have experienced, seen, observed, and/or become a victim of a crime. Anyone in this case is literally anybody, while the phrase ‘experiences, sees, observes, and/or becomes a victim of an event which constitutes a criminal act’ means the complainant is the person who ‘experiences, sees, observes, and/or becomes a victim.’ Meanwhile, the phrase ‘has the right’ in the a quo article shows that the person who ‘experiences, sees, observes, and/or becomes a victim of an event which constitutes a criminal act’ has an interest, which is protected by law, to report the criminal act.

Meaning of “Right” in Criminal Report

The Court also argues that the meaning of the phrase ‘has the right’ is not a legal obligation but a choice for the person who ‘experiences, sees, observes, and/or becomes a victim’ of a criminal act, so the right can be used but can also be waived. There is no legal consequence for not reporting a criminal act that one experiences, sees, observes, and/or becomes a victim of.

The right granted by the Criminal Procedure Code to anyone who experiences, sees, observes, and/or becomes a victim of a criminal act is the acknowledgement and protection of human rights as guaranteed in the 1945 Constitution, so its implementation cannot be restricted, unless it is expressly regulated in the legislation.

The Petitioner requested that the right of anyone who experiences, sees, observes, and/or becomes a victim of a criminal act to make a report to an examiner and/or investigator orally or in writing if an investigation termination warrant on the act has been issued be restricted, as he believed it does not warrant a counter-report. Without any intention to judge the Petitioner’s concrete case and the court decisions relating to it, the Constitutional Court argues that if the Petitioner’s claim was accurate, examiners and/or investigators should note this so that they would not easily charge someone when the report has been withdrawn so that there would be no violation of human rights against anyone who experiences, sees, observes, and/or becomes a victim of a criminal act. Failure to do so can lead to people hesitating to report alleged crimes.

Based on those legal considerations, the Court declared Article 102 paragraph (1) and Article 108 paragraph (1) of the Criminal Code to have provided recognition, guarantees, protection, and fair legal certainty, as well as ensured the enforcement of human rights, which are guaranteed in Article 28D paragraph (1), Article 281 paragraph (5), and Article 28J paragraph (2) of the 1945 Constitution—unlike what the Petitioner had claimed. Therefore, the Petitioner’s entire argument was ruled legally groundless.

Also read:

Provision on Investigation Termination Warrant Challenged

Petitioner of Provision Investigation Termination Warrant Revises Petition

The Petitioner challenged Article 102 paragraph (1) (“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) and Article 108 paragraph (1) of the Criminal Procedure Code (“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”). 

Author       : Utami Argawati
Editor        : Nur R.
PR            : Andhini S.F.
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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