Petitioners’ expert, Syafa’at Anugrah Pradana, delivering his testimony during the resumed hearing of the material judicial review of Law No. 11 of 2021 on the Attorney General’s Office, Monday (4/8). Photo by MKRI/Ifa.
Jakarta (MKRI) – The Constitutional Court resumed the material judicial review hearing of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on the Attorney General’s Office (AGO Law) on Monday, August 4, 2025. The hearing that took place in the Plenary Courtroom combined three cases at once: Cases No. 9/PUU-XXIII/2025, 15/PUU-XXIII/2025, and 67/PUU-XXIII/2025. Chief Justice Suhartoyo presided over the hearing, accompanied by eight other constitutional justices, with the agenda to hear testimony from the Petitioners’ expert of Case No. 15/PUU-XXIII/2025, Syafa’at Anugrah Pradana and Harmin.
Syafa’at Anugrah Pradana believed that the provision on the legal protection of prosecutors should be entitled to the position, rather than the person. He argued that Article 8, paragraph (5) of the AGO Law provides protection to prevent criminalization or intervention in the law enforcement process. However, he noted that the provision of the law in question carries a potential for deviation due to the lack of context when the prosecutors exercise their duties.
"The permission from the Attorney General is indeed intended to ensure that the Prosecutor's Office as a prosecuting institution is not weakened. However, there is potential for irregularities, such as a lack of context when carrying out duties or outside the performance of duties. There is also a potential for double standards in legal treatment between prosecutors and ordinary citizens, and regarding the protection of positions, which ideally should not eliminate the principle of individual legal accountability," he said.
Syafa’at also highlighted provisions on the appointment of prosecutors to other positions. He argued that the phrase “other assignment” in the law may reduce judicial independence, especially if they are appointed to executive positions. He considered that this would lead to double loyalty and political intervention.
“The exercise of the prosecutors’ duties as referred to in paragraph (1) may be carried out concurrently with other positions as long as it is related to the competence and authority of the prosecutors. The phrase “other assignments” actually has the potential to reduce judicial independence, especially if they are appointed to executive positions, because they risk being trapped under subordination to political power, along with double loyalty,” he explained.
Based on modern constitutionalism as proposed by Jimly Asshiddiqie, Syafa’at said that the provision contradicts the principle of the rule of law (rechtstaat) because it blurs the boundaries between the law enforcement function and other functions of power. Further, it can be categorized as a threat to criminal judicial independence. Assignments outside of the prosecutor’s office must be stricter normatively and procedurally, using clear and independent supervising standards to avoid political intervention or other strategic interests that may reduce the principles of justice and legal certainty.
Giving the authority to the prosecutors to hold positions outside their institution substantially blurs the boundaries between the law enforcement function and other functions within the government. Based on the authority theory, it may be considered an ultra vires act, which means an act outside of their authorities, which are ordered and given by a basic legal norm as dominus litis. Assignment outside the legal enforcement, especially in the form of concurrent positions, marks the institutional orientation shift, which is no longer based on the primary mission of the Prosecutor’s Office. Therefore, it not only deviates from the attribution principle, but also violates the principle of détournement de pouvoir.
Limit to Exercise Authorities
Subsequently, Harmin highlighted Article 8 paragraph (5) of the AGO Law, which provides immunity to the Prosecutors. He argued that the provision is multi-interpretive because it has no clear boundaries in the norm or elucidation of the article. He advised that the exercise of this authority be accompanied by good faith and does not violate the law.
“The provision of Article 8 paragraph (5) of the AGO Law provides immunity to the prosecutors in carrying out their duties and authorities, such as summoning, examination, raid, arrest, and detention against prosecutors, which may only be conducted with permission from the Attorney General. However, it cannot be avoided that Article 8 paragraph (5) of the AGO Law has a broad interpretation, so there are no boundaries, both in articles or elucidation of the AGO Law itself, if referring to the provision of Law No. 13 of 2022 on the Second Amendment to Law No. 12 of 2011 on Lawmaking. The principles of lawmaking include the principle of clarity of purpose, the principle of appropriate institution or competent authority, the principle of conformity between type, hierarchy, and content, the principle of feasibility or implementability, the principle of efficiency and effectiveness, the principle of clarity of formulation, and the principle of transparency or openness,” he affirmed.
With limitations on the exercise of authority held by officials, any policy decisions or actions taken by them must be accompanied by good faith and must not violate existing laws and regulations. If, during an investigation, the official fails to meet these requirements, legal proceedings can still be carried out even though immunity is regulated by related provisions. Therefore, applying the principle of a contrario, immunity rights do not apply if the official acts with malicious intent and unlawfully.
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Case No. 9/PUU-XXIII/2025 was filed by advocates Agus Salim and Agung Arafat Saputra. They challenge Article 8 paragraph (5) of the Prosecution Law, which reads, “In exercising their duties and authority, summon, inspection, search, arrest, and detention against a prosecutor may only be executed with Attorney General’s approval.”
At the preliminary hearing on Wednesday, March 5, legal counsel Ibnu Syamsu Hidayat argued that the article has given prosecutors absolute immunity, thus could potentially hinder supervision and increase the risk of abuse of authority.
“The article has led to absolute immunity of prosecutors, so that control or supervision over the performance of prosecutors has become difficult. It could potentially lead to abuse of authority, ‘superpower’ practices, and even corruption acts. Therefore, there must be a clear limit on the right to immunity of law enforcement apparatuses,” Ibnu said.
The Petitioners compared the right to immunity of prosecutors and that of advocates, which is regulated under Article 16 of Law No. 18 of 2003 on Advocates. The article stipulates that advocates cannot be prosecuted either civilly or criminally in carrying out their professional duties in good faith for the defense of clients in court.
The Petitioners believes that there should also be a similar limit on the right to immunity of prosecutors in order to preserve the principle of equality before the law. “This phrase is highly catch-all and has no legal certainty. It makes it easy for something that prosecutors should not do to be claimed as something within the execution of their duties and authority,” Ibnu stressed.
Therefore, in the petitums, the Petitioners requested that the Court grant their petition. They also asked that the Court declare Article 8 paragraph (5) of the Prosecution Law unconstitutional.
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Prosecutors’ Overlapping Authorities Questioned
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Case No. 15/PUU-XXIII/2025 was filed by Agus Setiawan (Activist/University Student), Sulaiman (Advocate), and Civil Youth Alliance (Perhimpunan Pemuda Madani). The petitioners challenged Article 11 paragraph (1) and paragraph (2), Article 30B letter a, Article 35 paragraph (1) letter g and letter e of the General Attorney’s Office Law. The Petitioners argued that the articles were contrary to Article 30 paragraph (3) and paragraph (4) of the 1945 Constitution. Based on the provisions of Article 11A of the Attorney General’s Office Law, the Prosecutor’s duties implementation, as referred to in paragraph (1), may be conducted with concurrent positions as long as they relate to the competence and authority of the Prosecutor. According to the Petitioners, this is contrary to Article 24 paragraph (1) and paragraph (3) of the 1945 Constitution because the extension of the Prosecutor’s duties to occupy or fill positions outside the prosecutorial institution undermines the freedom and independence of the institution.
“Authorizing the prosecutor to fill any position without a firm and clear regulation will make the Prosecutor’s Office a multifunctional institution that causes damage to the independence of the Prosecutor’s Office,” Agus Setiawan explained during the panel hearing on Thursday, March 3, 2025.
Article 35 paragraph (1) letter e of Law No. 21 of 2021 gives the authority to the Attorney General to submit technical legal considerations to the Supreme Court in the cassation examination within the scope of general courts, state administrative courts, religious courts, and military courts. According to the Petitioners, the said Attorney General’s authority was a form of legalized covert intervention through the interpretation of the phrase “legal technical.”
The Petitioners also questioned the extension of the prosecutor's duties and authorities in Article 35 paragraph (1) letter g of the Attorney General’s Office Law to coordinate, control, and conduct investigations, examinations, and prosecutions of criminal offenses, which may lead to overlapping authorities. Sulaiman added that the prosecutors’ authority in the examination should be limited to specific criminal offenses stipulated under law and regulations.
Also read:
Advocates Question Disparity between Prosecutors and Other Law Enforcement Officials in Attorney General’s Office Law
Petition on Prosecutors’ Immunity Right Revised
Petition No. 67/PUU-XXIII/2025 was filed by Harmoko and Juanda who work as advocates. In the preliminary hearing on Friday, May 16, 2025, the petitioners argued that Article 8 paragraph (5) of the AGO Law gave prosecutors immunity, meaning prosecutors may commit a crime when carrying out their duties and exercising their authority. Meanwhile, summoning, examining, searching, arresting, and detaining may only be conducted with permission from the Attorney General. According to the Petitioners, this article gave the prosecutor disparate treatment from other law enforcers, such as judges, police, and advocates. The norm was also deemed not to provide exceptions to the qualifications and types of crimes prosecutors may commit.
Meanwhile, despite having an immunity right, as stipulated in Article 16 of the Advocates Law and further emphazied by the Constitutional Court Decision No. 26/PUU-XI/2013, advocates must be examined and apprehended without written permission from the chairmen of advocate organizations or other parties when carrying out their professional duties in good faith but violating the law. With the different treatment, the provisions in Article 8 paragraph 5 of the Prosecutor's Office Law contradict Article 27 paragraph (1), Article 28D paragraph (1), and Article 28I paragraph (2) of the 1945 Constitution, which recognized the principle of equality before the law.
Then the Petitioners also requested that the Court declare the provisions of Article 8 paragraph (5) of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on the Attorney General's Office of the Republic of Indonesia contradict the 1945 Constitution of the Republic of Indonesia and have no binding legal force as long as it is not interpreted as “In carrying out its duties and authorities, summoning, examination, searching, arresting, and detaining prosecutors can only be made with the written approval of the President and if the President does not give the written approval within a maximum period of 30 (thirty) days from the receipt of the application letter, the investigation process followed by detention can be carried out immediately.”
Author: Utami Argawati
Editor: N. Rosi
PR: Raisa Ayuditha Marsaulina
Translator: Rizky Kurnia Chaesario/Yuniar Widiastuti
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.
Monday, August 04, 2025 | 16:41 WIB 268