Chief Justice Suhartoyo with Constitutional Justices Ridwan Mansyur and Arsul Sani at the judicial review hearing of the KUHAP and the KPK Law, Tuesday (2/13/2024). Photo by MKRI/Panji.
JAKARTA (MKRI) — The Constitutional Court (MK) held a material judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) and Law No. 30 of 2002 on the Corruption Eradication Commission (KPK) as amended by Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the KPK on Tuesday, February 13, 2024 in the plenary courtroom. The petition No. 25/PUU-XXII/2024 was filed by prosecutor Jovi Andrea Bachtiar.
The preliminary hearing was presided over by Chief Justice Suhartoyo and Constitutional Justices Ridwan Mansyur and Arsul Sani. The Petitioner challenges Article 1 point 1, Article 1 point 6 letter a, and Article 6 paragraph (1) of the KUHAP as well as Article 45 paragraph (1) of the KPK Law.
Legal counsel Ardi Langga said that according to logical reasoning, normative contradiction in both legal politics and the regulation in the KUHAP and the Prosecution Law will inevitably lead to potential legal uncertainty and even disputes on the prosecutor’s authority to investigate certain crimes, especially corruption crimes.
“This is because the normative contradiction of the definition of investigator in the KUHAP and the Prosecution Law leads to ambiguity (contradictio in terminis) on whether or not the prosecution’s authority to investigate certain crimes (especially corruption crimes) based on statutory laws is constitutional,” he reasoned.
Prosecutor’s Investigative Authority
The prosecutor’s investigative authority, the Petitioner argues, should be understood not as their capacity as civil service investigators (PPNS), who are one of the supporting elements to the Police in exercising its function, but as their attributive authority as the master of the case (dominus litis). Not to mention, the legal politics developed after the drafting and enactment of the KUHAP in 1981 shows that several institutions or officials were granted the investigative authority on corruption cases. These institutions and officials are Police investigators, prosecutors as investigators at the Prosecution Office, and Corruption Eradication Commission (KPK) investigators.
Ardi explained that one of the prosecutor’s investigative authority is based on the KPK Law and the Anti-Corruption Law. However, there are no explicit further regulations in the KPK Law that specifies that prosecutors have attributive authority to investigate corruption crimes. Article 45 paragraph (1) of the KPK Law even expressly (expressis verbis) states, “The Investigator shall be an Investigator of the Corruption Eradication Commission who is appointed and dismissed by the KPK.”
However, the Petitioner believes the KPK Law, which in the general provisions of the Prosecution Law is said to be a reference for prosecutors to investigate corruption crimes, explicitly declares prosecutors authorized to perform investigation into corruption cases. In other words, Article 45 paragraph (1) of the KPK Law should declare that the investigator is an investigator of the KPK who is appointed and dismissed by the KPK, Police officials of the Republic of Indonesia, or prosecutors. It is understandable that it is assumed that prosecutors do not have the authority to investigate corruption crimes. This is an interpretation ambiguity (contradictio in terminis) arising due to the lack of emphasis on the prosecutor’s authority to investigate corruption crimes in Article 45 paragraph (1) of the KPK Law. Therefore, the Petitioner argues, the article is against the principle of legal certainty in a rule of law as stipulated in Article 1 paragraph (3) of the 1945 Constitution.
Clarification of Prosecutor’s Authority
Ardi emphasized that the Petitioner wishes that the Court clarifies the prosecutor’s authority to investigate certain crimes, especially criminal crimes, in the KUHAP and the KPK Law so that there will be legal certainty in a rechtsstaat pursuant to Article 1 paragraph (3) of the 1945 Constitution.
In the petitum, the Petitioner requests that the Court declare Article 1 point 1 of the KUHAP unconstitutional and not legally binding if not interpreted as “The Investigator shall be an official of the Police of the Republic of Indonesia, a prosecutor who is granted a special authority to perform investigation of certain crimes based on statutory laws, a certain civil servant, or other official granted the authority by law to perform investigation.”
The Petitioner also requests that the Court declare Article 1 point 6 letter a of the KUHAP unconstitutional and not legally binding if not interpreted as “The Prosecutor shall be a functional official granted authority by this law to act as public prosecutor and to execute the verdict of a court that has acquired permanent legal force as well as other authority based on statutory laws.”
He also requests that the Court declare Article 6 of the KUHAP unconstitutional and not legally binding if not interpreted as “The Investigator shall be a state police official of the Republic of Indonesia, a prosecutor granted the authority to perform investigation into certain cases by law, a certain civil service official, or other official who is granted special authority by law to perform investigation.”
In addition, he also requests that the Court declare Article 45 paragraph (1) of the KPK Law unconstitutional and not legally binding if not interpreted as “The Investigator shall be an Investigator of the Corruption Eradication Commission appointed and dismissed by the Corruption Eradication Commission, a police official of the Republic of Indonesia, or a prosecutor.”
Justices’ Advice
In response, Constitutional Justice Ridwan Mansyur said the petition has followed the format stipulated in Constitutional Court Regulation (PMK) No. 2 of 2021, but the legal standing is lengthy.
“The correlation between the Petitioner and the constitutional impairment is not quite there yet, even if the Petitioner argues that the legal standing in previous [cases] were granted. This is different. In previous cases, the Prosecution Law, the Anti-Corruption Law were challenged. This time it is Article 1 paragraph (3) of the 1945 Constitution. It is not the same. In cases in the Constitutional Court, the legal standing is not automatic. It must be connected to what is challenged and which articles,” he said.
Meanwhile, Constitutional Justice Arsul Sani said the Petitioner tended to elaborate the prosecution’s achievement in eradicating criminal acts of corruption than his constitutional impairment as an Indonesian citizen due to lack of mention of the prosecutor in articles in the KUHAP and the KPK Law relating to what is being requested.
Before the hearing was adjourned, the panel informed the Petitioner that he would have 14 days to revise the petition and submit it to the Registrar’s Office by Monday, February 26, 2024 at 09:00 WIB.
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.
Tuesday, February 13, 2024 | 15:03 WIB 129