Experts and Witnesses of Case No. 180/PUU-XXII/2024 on the Material Judicial review of Law No. 1 of 1979 on Extradition and Law No. 1 of 2006 on Mutual Assistance in Criminal Matters, Monday (2/6/2025). Photo by MKRI/Bay.

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Jakarta (MKRI) – The Constitutional Court held another hearing on Law No. 1 of 1979 on Extradition on Monday, June 2, 2025. The fifth hearing of Case No. 180/PUU-XXII/2024 was held to hear testimony from witnesses and experts from the Petitioners and Related Parties, which consisted of the Corruption Eradication Commission (Komisi Pemberantasan Korupsi – KPK) and the National Police. The case was filed by active prosecutors, Olivia Sembiring (Petitioner I), Ariawan Agustiartono (Petitioner II), Rudi Pradisetia Sudiradja (Petitioner III), Muh. Ibnu Fajar Rahim (Petitioner IV), and Yan Aswarih (Petitioner V). They challenged Article 21, Article 22 paragraph (2), Article 23, Article 24, Article 33 paragraph (2), Article 35 paragraph (2) letter b, Article 36 paragraph (1), paragraph (3), paragraph (4), paragraph (5), Article 40 paragraph (1), Article 44, Elucidation of Article 23 of Law No. 1 of 1979 on Extradition (Extradition Law) and Article 1 point 10 of Law No. 1 of 2006 on Mutual Assistance in Criminal Case (Mutual Assistance Law).

Apreza Darul Putra, a witness brought by the Petitioners, shared instances of obstruction of extradition in several cases he had handled. He said that the Ministry of Law and Human Rights' work was slow in the case of Mathias Hubert Marie Echene. In this case, a request had been submitted, but no response was received from the related ministry. Therefore, the Hong Kong attaché was asked to assist and process it again with an acceleration that could be made. The case was similar to an MLA request from Indonesia to Australia regarding Jessica Kumala Wongso.

In addition, Apresa stated that a requirement to request MLA includes a criminal case punishable by death, provided a guarantee is attached not to be prosecuted to death. However, the Attorney General had guaranteed that the person would not be charged with the death penalty, but if the Panel of Judges sentenced to death, then the decision must be carried out by the prosecutor. In other words, in this case, the Ministry of Law and Human Rights conveyed a different statement to the Australian Government, by stating that “the death penalty will not be imposed as a punishment, and if the death penalty is imposed, it will not be carried out.”

“From many of the cases, we were forced to make an informal cooperation or not through the Ministry of Law and Human Rights, for example, Thailand’s DSI. In short, due to the mechanism delay, we were forced to cooperate with law enforcers through informal channels, which are accepted in several countries but not in others. The requests between law enforcers are more effective because it doesn’t have to go through a lengthy bureaucratic process,” Apreza said.

Extradition Problems

The next witness presented by the Petitioners, Virgaliano Nahan, had several experiences in handling extradition cases. He said that he once resolved a criminal case of pedophilia committed by Peter Dundas Walbran, who worked as a headmaster in an international school in Lombok from 2002 to 2006. In this case, during the investigation, the perpetrator returned home to Australia, making prosecution impossible, and communication was established with the Australian Government. In short, the problem arose when the perpetrator was extradited to Indonesia and the trial took place in Lombok.

“Because there were only five witnesses who had relations with the victim, the other witnesses who were underage refused to testify. Peter was brought to trial in Lombok, and the police crime unit brought the evidence of stage two to the Lombok Prosecutors’ Office. But we got a phone call from the Australian Government that the extradition would be on trial in Jakarta until the detention was in Cipinang Prison. This was not informed to the prosecutor. This was not thought of by the central authority to discuss how the trial would be in Indonesia. This went on to the issue of funding from the state,” Virgaliano said.

In conclusion, Virgaliano revealed that prosecutors must explain the details of the extradition process on a case-by-case basis, and it cannot be generalized. So the explanation from prosecutors to the central authority is important. In addition, Virgaliano also emphasized the importance of prosecuting guarantees that are always requested by the requesting countries (extradition/MLA) on the clarity of the process/stages of case handling, which are in trials, including the type of cases, trial location, and detention in Indonesia.

Control from the Attorney General

Hikmahanto Juwana, a professor of International Law at Universitas Indonesia, as an expert, explained the forms of cooperation in criminal matters between countries, such as extradition, mutual legal assistance, sentencing of prisoners, and trial transfer, which are conducted by an institution in a country with a similar function to facilitate such cooperation.

He stated that in Indonesia, the central authority for two types of cooperation on criminal matters is under the Ministry of Law. According to the expert, the central authority should not be given to the Ministry of Law and Human Rights, but instead, it should be under the control and responsibility of the Attorney General. In Indonesia, the handling of criminal-related cooperation, such as extradition, is the responsibility of the judiciary, based on the Extradition Law. It is because they have a role if the party refuses the extradition, as per the government's decision. In such a context, the court, as a judicial institution, has a role to ensure that the government's decision is aligned with the Extradition Law. Otherwise, the government cannot request extradition to other countries.

“Therefore, it is outdated if the Extradition Law still puts the State Court to decide whether a foreign national can be extradited from Indonesia. Once again, in many countries, the role of a court in extradition is when a foreign national who the government will extradite files an objection to the extradition,” he explained.

Having Legal Legitimacy

Subsequently, Fachrizal Afandi, in his testimony, stated that in the current international practice, the cross-country legal cooperation mechanism, such as extradition and mutual assistance in criminal matters, has evolved as an essential part of a modern criminal court system. Some countries assign the function of central authority in law enforcement institutions that are directly related to the investigation and prosecution process to ensure the smoothness, accuracy, and legal legitimacy of the cooperation process. However, Indonesia deviates from such practices.

Fachrizal added that in Indonesia, the MLA request from other law enforcement agencies, such as the Attorney General or the KPK, must be submitted first to the Ministry of Law and Human Rights as the central authority. This procedure not only prolongs the response time but also may create miscommunication between the agencies, bureaucratic delays, and technical inaccuracies due to a weak understanding of substantial law by administrative officers. As a result, Indonesia’s position in international cooperation, including in terms of negotiation or execution of cross-border asset seizure and forfeiture orders, has become less competitive.

“The appointment of the Ministry of Law and Human Rights, which now becomes the Ministry of Law that is fully administrative and has no function as a substantial law enforcement as a central authority in cross-border criminal matters cooperation, also bears the potential to violate the citizens’ constitutional rights guarantee. In the context of criminal law enforcement, especially related to cross-border mutual legal assistance, such as extradition and asset freeze, it carries a direct impact on a person’s constitutional rights, such as the right to move, the right to ownership, and the right to due process of law. This authority should be exercised by an institution that understands substantial law and has judicial accountability instead of an administrative institution,” Fachrizal explained.

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It was revealed in the Preliminary Hearing on December 24, 2024, that Petitioner I, in carrying out her duties and responsibilities, often took care of incoming and outgoing extradition requests. She faced challenges and limitations due to the enactment of the regulation regarding the duration of processing mutual assistance requests. In a real case, Petitioner I was asked to facilitate a technical work unit in handling a special criminal case to identify evidence in the form of banknotes, which was suspected to be the amount of 3.3 million US Dollars from Argentina. The Ministry of Law and Human Rights Regulation No. 12 of 2022 on the Handling of Mutual Assistance in Criminal Cases states that the processing time of a mutual assistance request starts from the receipt of the request to the fulfillment and feedback stages.

In the petition, the Petitioners argued that the articles position the Ministry of Judiciary as the central authority in implementing extradition. It is deemed contradictory to the provisions of Article 1 paragraph (3), Article 17 paragraph (3), Article 24 paragraph (3), Article 24 paragraph (3), and Article 28D paragraph (1) of the 1945 Constitution. To them, extradition and mutual assistance in criminal cases shall be within the law enforcement authority, under the domain of other agencies related to the judiciary, such as the Prosecutor’s Office. As a result, the construction of the norms creates legal uncertainty, and it does not conform to the principles of the rule of law because the current nomenclature of the Ministry of Judiciary No. 1 of 1979 and the Ministry of Law and Human Rights No. 1 of 2006 have been transformed into three separated ministries, namely the Ministry of Law, Ministry of Human Rights, and Ministry of Immigration and Correctional Services. Hence, it has created disfunction and ambiguity regarding the central authority in extradition and mutual assistance in criminal cases.

In the petitum, the Petitioners requested the articles to be declared contradictory to the 1945 Constitution. The Petitioners also asked the Court to declare Article 21 of the Extradition Law conditionally constitutional against the 1945 Constitution and does not have legally binding power as long as it is not interpreted as “In the event that the person concerned is detained, the person shall be released by the Attorney General if within a time deemed sufficient from the date of detention, the President through the Attorney General does not receive a request for extradition along with the documents referred to in Article 22 from the requesting country”.

Author: Sri Pujianti
Editor: Lulu Anjarsari P.
PR: Raisa Ayuditha M.

Translator: Rizky Kurnia Chaesario

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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