The Petitioner’s legal counsels conveying the subject matter at the preliminary hearing of a material judicial review hearing of the Criminal Code, Wednesday (3/13/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Advocate Moh. Qusyairi has filed a material judicial review petition of Article 340 of the Criminal Code (KUHP) to the Constitutional Court (MK). In case No. 36/PUU-XXII/2024, he questions motive in the article.

The article reads, “Any person who with deliberate intent and with premeditation takes the life of another person, shall, being guilty of murder, be punished by capital punishment of life imprisonment or a maximum imprisonment of twenty years.”

“Evidence related to motive in premeditated murder is necessary and can be used as a reference because it can be used as clue when the existing evidence raises various speculations that make judges hesitate in sentencing,” said legal counsel Annee William Siadari at the preliminary hearing on Wednesday, March 13, 2024, which was presided over by Chief Justice Suhartoyo and Constitutional Justices M. Guntur Hamzah and Ridwan Mansyur.

The Petitioner asserts that premeditated murder, which is regulated by Article 340 of the Criminal Code, involves the elements “any person,” “deliberate,” “with premeditation,” and “takes the life of another person.” The element that is not mentioned in Article 338 is “with premeditation.” Premeditated murder involves motive, which is different from intent. Intent determines whether the defendant did the crime deliberately, while motive concerns why they did it.

The Petitioner asserts that there is no clear and comprehensive definition of motive in murder, while its proof in premeditated murder is crucial for the judges’ consideration in handing down a ruling to ensure the defendant is punished fairly.

The enforcement of the norm allows a case where defendants of premeditated murders receive the same sentence for different motives. It also allows the proving of motive by the prosecutor be optional and could confuse the defendant’s attorney and hinder effective defense. The norm has resulted in the Petitioner having difficulty defending clients who were charged with premeditated murder and to ensure their right to fair treatment before the law.

Based on that reason, the Petitioner requests that the Court declare Article 340 of the Criminal Code unconstitutional and not legally binding if not interpreted as “Any person who with deliberate intent and with premeditation takes the life of another person, shall, being guilty of murder, be punished by capital punishment of life imprisonment or a maximum imprisonment of twenty years.”

Justice Guntur stated that the petition was similar to petition No. 1/PUU-XXII/2024, which the Petitioner had retracted and had been ruled by the Court. He believes the current petition has a different Petitioner but the same background and petitum as said petition. Chief Justice Suhartoyo also highlighted this.

“Since this is a new petition, the advice is different, but the substance is the same, there is no addition. To prevent ne bis in idem from applying where the Petitioner is different but the substance is the same… take caution. The Court could judge this petition of having the same substance as the previous one,” he said.

Before adjourning the hearing, the chief justice announced that the Petitioner can revise the petition and submit it by Tuesday, March 28, 2024 at 09:00 WIB.

Also read:

Advocate Requests Motive Be Considered for Criminal Sentence

Advocate Revises Petition on Motive in Criminal Code

Court Affirms Retraction of Petition on Motive in Criminal Code

Author         : Mimi Kartika
Editor          : Nur R.
PR              : Fauzan
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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