Justino Halomoan Sinaga conveying the petition’s subject matters at the preliminary hearing for the material judicial review of the Criminal Procedure Code and the Advocate Law, Wednesday (8/7/2024). Photo by MKRI/Panji.

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JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing for the material judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) and Law No. 18 of 2003 on Advocates on Wednesday, August 7, 2024. The petition No. 98/PUU-XXII/2024 was filed by Justino Halomoan Sinaga, an entrepreneur.

The Petitioner revealed that he had followed the procedure set forth in the Criminal Procedure Code, but he faced injustice. Article 2 paragraph (4) of Law No. 48 of 2009 on the Judicial Authority stipulates that trials be simple, swift, and economical. However, the phrase “all obstacles” in said article has led to complicated, lengthy, and costly trials.

The phrase, the Petitioner asserted, has created new violations in the judicial process that are unfair and disadvantageous. He emphasized that the phrase “swiftly” in Article 2 paragraph (4) of the Judiciary Law does not have clear parameters, because his report filed in 2020 had not led to results. Similarly, the phrase “low cost” in the same article also lacks clear parameters, because in the implementation of the Criminal Procedure Code, many costs are incurred. “[I believe] the phrase “all obstacles” indicates structured, systematic, and massive arbitrariness of the positions and laws of official bodies and agencies (legal mafia),” he said.

Therefore, the Petitioner proposed that the judicial power establish a law enforcement commission (KPH) as the enforcer of court procedural laws to detect structured, systematic and massive judicial crimes early. The phrase “all obstacles” implies “alleged” or “alleged crimes” committed consciously and intentionally, both internally and externally. Internal crimes include arbitrariness in the main court process by official bodies in the Criminal Procedure Code, which could potentially add new subject matters such as fabrication, criminalization, maladministration, and even threats to the lives of the Petitioner and his family. Despite evidence and facts, the court does not proceed in accordance with the law. The Petitioner stated that Article 15 and Article 16 of the Advocate Law contradict the Judiciary Law. He argued that the phrases “free” and “good faith” in an advocate’s defense of a client should not outweigh the importance of justice. He believes justice should be prioritized as the goal of the law. An advocate’s defense should be for the sake of justice, not solely for the client’s benefit. This is in accordance with Article 2 paragraph (1) of the Judiciary Law, which reads “For the sake of justice based on the One Supreme God.”

The Petitioner asserted that the phrases “free” and “good faith” could potentially create new crimes in procedural laws that can hinder the implementation of justice. He asked the Court to interpret the phrase “simple, swiftly, and economically” in Article 2 paragraph (4) of the Judiciary Law as “bias or uncertainty” that creates a legal vacuum. Legal certainty, he asserted, is highly dependent on a clear time limit, so the addition of a new article is needed to address this.

He also proposed that the phrase “shall explore, follow, and understand the values of law and sense of justice that exist in society” be interpreted as an obligation for the constitutional justices to participate in and supervise each case. To that end, he proposed the establishment of a law enforcement commission (KPH) and a legal defense council (DKH) to oversee and fight the legal mafia in the administration of justice. In addition, he requested that the phrase “all obstacles” in Article 4 paragraph (2) of the Judiciary Law be interpreted as “alleged crimes or intention,” which reflects uncertainty and legal vacuum. 

Justices’ Advice

In response, Chief Justice Suhartoyo advised the Petitioner to study past petitions that the Court granted off the Court’s website. “What is the good format of a petition, [explanation of the Court’s] authority, [the Petitioner’s] legal standing, the petition’s subject matter and petitum. The authority comes from Article 24C of the latest Constitution, Article 10 of the Constitutional Court, Article 29 of the Judiciary Law, other articles in the Lawmaking Law and the Constitutional Court regulation,” he said.

Before adjourning the hearing, Chief Justice Suhartoyo announced that the Petitioner would have 14 days to revise the petition and must submit a revised petition by Tuesday, August 20 at 10:00 WIB to the Registrar’s Office.  

Author         : Utami Argawati
Editor          : N. Rosi
PR              : Fauzan Febriyan
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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