Legal counsel Nawaz Syarif (left) at the ruling hearing of the material judicial review of the Criminal Procedure Code and the Corruption Eradication Commission Law, Wednesday (3/20/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the judicial review petition filed by prosecutor Jovi Andrea Bachtiar, who challenged 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.
“[The Court] rejects the Petitioner’s petition in its entirety,” said Chief Justice Suhartoyo delivering the verdict for Decision No. 25/PUU-XXII/2024 on Wednesday, March 20, 2024.
In its legal considerations, delivered by Constitutional Justice Ridwan Mansyur, the Court asserted that the Criminal Procedure Code was the basis and guidelines in procedural law (formal law) that is general in nature to regulate the legal process of general criminal acts in Indonesia for the sake of codification of the law. Therefore, it is stressed that Chapter XXI of the transitional provisions of the Criminal Procedure Code concerns the temporary application of special provisions on criminal procedure that have been regulated in certain laws until they are amended or declared null and void.
Shift on the Enactment of KUHAP
Factually, currently there are several criminal offenses, especially special or certain criminal offenses, which are regulated by separate laws that vary according to the type of criminal offense. According to the Court, this can be interpreted that the application of the Criminal Procedure Code has naturally shifted, given the need to provide investigative authority to other law enforcement agencies other than the Police. This, among others, because criminal acts have developed and become more complex and cannot be handled by the Police alone.
Thus, the special provisions of criminal procedure with no time limitation on their applicability until they are amended or declared invalid, as mentioned in Chapter XXI of the transitional provisions of the Criminal Procedure Code, are no longer relevant. However, functional differentiation found in the Criminal Procedure Code must be maintained. Meanwhile, the absence of further arrangements related to the special provisions of criminal procedure, especially the prosecutor’s authority to conduct investigation, is closely related to the legislatures’ legal policy. This is the Court’s stance in Decision No. 28/PUU-XXI/2023.
In addition to the aforementioned legal considerations, Justice Ridwan continued, based on the principle lex specialis derogat legi generali, where special laws (lex specialis) override general laws (lex generali), general provisions in the Criminal Procedure Code can be overridden by special provisions. Therefore, the regulation on the prosecutor’s authority to conduct investigation into certain criminal offenses regulated in Article 30 paragraph (1) letter d of the Prosecution Law is a lex specialis to the Criminal Procedure Code. This has been confirmed by the Court in legal considerations sub-paragraph [3.16.2] of Decision No. 28/PUU-V/2007.
Thus, based on the excerpts of legal considerations above, it can be concluded that the prosecutor’s authority to conduct investigation, which is a special provision of criminal procedure, is constitutionally justified as long as it is limited to certain/special criminal offenses based on the law as has become the legislatures’ legal policy. Therefore, it is irrelevant for the prosecutor’s authority to investigate to be emphasized in the Criminal Procedure Code as argued by the Petitioner—who stated that that the absence of statement on such authority expressis verbis in the Criminal Procedure Code may lead to legal uncertainty. The Court believes it was an excessive concern.
“Based on the aforementioned legal considerations, the Court is of the opinion that the Petitioner’s a quo argument was legally groundless,” Justice Ridwan concluded.
He further said, Article 1 point 1 and Article 1 point 6 letter a of the Criminal Procedure Code, which the Petitioner believed must also contain the prosecutor’s authority to investigate certain criminal offenses, are general provisions relating to the definition of a word and matters of a general nature. Norms contained in general provisions will underlie subsequent norms, so the formulation and interpretation of those norms must be done carefully because they concern provisions of basic norms of a law and must be general in nature.
Thus, if the norms in the general provisions are to be changed, consistency with subsequent relevant articles must be considered. Therefore, the change would not cause confusion on the articles related to the norms in the general provisions.
The Court asserted that the Petitioner’s wish for the interpretation of Article 1 point 1 of the Criminal Procedure Code by adding the phrase “The Prosecutor granted special authority to perform investigation into certain cases by law” and of Article 1 point 6 letter a with the additional phrase “and investigator into certain criminal cases as well as other authority by law” would affect the structure of the Criminal Procedure Code, especially articles relating to the definition of the words “investigator” and “prosecutor.”
“Because if traced to the subsequent articles related to the meaning of the two words, the interpretation of Article 1 point 1 and Article 1 point 6 letter a of the Criminal Procedure Code would actually cause confusion of the meaning of the subsequent articles,” Justice Ridwan emphasized.
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At the preliminary hearing on Tuesday, February 13, 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.
He 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.”
Author : Utami Argawati
Editor : Nur R.
PR : Fauzan 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.
Wednesday, March 20, 2024 | 16:04 WIB 67