Fachrizal Afandi, a law lecturer at Universitas Brawijaya, attending the hearing of the judicial review of Law No. 11 of 2021 on the Attorney General’s Office of the Republic of Indonesia to deliver his testimony as an expert, Wednesday (20/8). Photo by MKRI/Panji.
Jakarta (MKRI) – The Constitutional Court (MK) held a resumed hearing of the material judicial review of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on the Attorney General of the Republic of Indonesia on Wednesday, August 20, 2025. The hearing combined three cases: No. 9/PUU-XXIII/2025, 15/PUU-XXIII/2025, and 67/PUU-XXIII/2025, and was presided over by Chief Justice Suhartoyo, along with eight other constitutional justices.
The government presented Fachrizal Afandi (law lecturer at Universitas Brawijaya), Flora Dianti (law lecturer at Universitas Indonesia), and Sujono (Universitas Dirgantara Marsekal Suryadarma/UNSURYA). In addition, former Deputy Attorney General for Special Crimes and Supervision, Widyo Pramono, attended the hearing as a witness.
Fachrizal explained the position of the Prosecution Office as a government institution with functions related to judicial authority in prosecution. According to him, the status of prosecutors as Civil Servants (ASN) with special functional positions entails different legal consequences from general ASN, including codes of ethics, qualifications in legal education, and exclusive authority to conduct prosecutions. He also emphasized that the position of prosecutors in various countries is often seen as quasi-judicial officials requiring guarantees of independence.
"The status of prosecutors as ASN with special functional positions carries significant legal consequences. As ASN, prosecutors are subject to Law No. 5 of 2014 on Civil Servants and its implementing regulations, including provisions on transfer, promotion, and cross-agency assignments. However, the specific nature of the prosecutor profession means they cannot be fully equated with general ASN. This distinction includes strict legal education and training qualifications, specific codes of ethics, and exclusive authority to conduct prosecutions on behalf of the state," he said.
In nearly all countries, he continued, prosecutors play a vital role or position in the criminal justice system. They function as a filter in the criminal justice system to ensure that not all cases go to court. This significant role has led some countries to regulate guarantees of their independence through the civil service system.
Executive with Judicial Function
Meanwhile, government expert Flora Dianti assessed that the Prosecution Office is a state institution within the executive branch with judicial functions. "The Prosecution Office is a state or executive institution with judicial functions. Furthermore, the Attorney General is a state institution that serves as the highest State Attorney/Legal Advisor based on legislation. The Attorney General's authority to provide legal opinions/advice to the Supreme Court is also practiced in the Netherlands (Procureur General) and England (neutral advisor to the Court)," she said.
She emphasized that the Attorney General's authority as the highest legal advisor is neutral and non-binding, thus it does not potentially control the judicial process as argued by the Petitioners. "Regarding the role as a state attorney, the Attorney General has the authority to provide technical legal opinions that are neutral and non-binding and are only related to the application of the law," Flora stated.
Therefore, Flora added, the Petitioners' opinion that the Attorney General's authority to provide technical considerations to the Supreme Court in all judicial bodies could potentially give the Attorney General full control over the legal process is inaccurate and insufficiently justified.
Similarly, Sujono affirmed that the Attorney General's authority to coordinate and control the investigation, inquiry, and prosecution of cases involving general and military courts is constitutional. According to him, this authority complies with the 1945 Constitution and various other laws regulating the judicial system in Indonesia. He stated that the tasks and authority of the Attorney General, as regulated in Article 35 paragraph (1) letter g of the Law on the Prosecution Office, are constitutional.
"This authority has been granted in accordance with Article 24 paragraph (2) of the 1945 Constitution, Article 16 of Law No. 48 of 2009 on Judicial Power, Article 89 paragraph (1) of the Criminal Procedure Code, Articles 57, 66 letter c, and 198 paragraph (1) of the Military Court Law, Article 39 of the Law on Eradication of Corruption Crimes, and AGO Law, supported by legal theory and principles aligned with Indonesia's legal ideals, namely the fundamental values of Pancasila, the 1945 Constitution, and the direction of national long-term development policies," he explained.
Prosecutor Investigators Reported
Meanwhile, Widyo Pramono, in his testimony, recounted his experience while serving as Deputy Attorney General for Special Crime in 2014, handling the corruption case of TransJakarta bus procurement involving suspect Udar Pristono. He narrated multiple police reports filed against him and prosecutor investigators related to alleged evidence misuse and document forgery.
"I served as Deputy Attorney General for Special Crimes (2013-2015) and Deputy Attorney General for Supervision (2015-2017). As a witness in this trial, I stated that in 2014, when I was Deputy Attorney General for Special Crimes and handling the 2013 TransJakarta bus procurement corruption case involving suspect Udar Pristono (Head of DKI Jakarta Transportation Agency), I and a team of special crime investigators, including Sujadi and Sarjono Turin, were reported to the Police Criminal Investigation Agency," he said before the Panel of Justices.
Widyo considered the numerous police reports against prosecutor investigators quite massive and submitted concerning the prosecutor's duties and authority, namely, investigating corruption crimes, which at the time received significant public attention. Regarding summons and examination of prosecutors, the provisions of Article 8 paragraph (5) of Law No. 16 of 2004 apply, "In carrying out duties as referred to in paragraph (4), if a prosecutor is suspected of committing a criminal act, summons, examination, search, arrest, and detention of the concerned prosecutor may only be carried out with the approval of the Attorney General."
According to him, filing police reports is a right of every citizen. Still, regarding this process, the law has determined that the competent institution to examine the validity of investigator actions or investigation processes is pre-trial, due to its evidentiary nature. With these police reports, investigators are seemingly criminalized based on unfounded reports because the investigation actions were carried out lawfully and in accordance with statutory regulations.
He said this disrupts the investigation process as the investigators' concentration is divided. Moreover, suspect Udar Pristono in his objection note also requested that witnesses and other investigators, including Sarjono Turin and Victor Antonius Saragih, be named suspects because, according to the defendant, their Wealth Report (LHKPN) was not proper. The Corruption Court panel deemed the defendant's objection regarding the prosecutors' wealth profiles irrelevant to the charges and rejected the objection.
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Permission from the Attorney General Hinders Law Enforcement
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
Petitioners Strengthen Arguments on the Cause of Prosecutor’s Authority Overlap
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.
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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.
Wednesday, August 20, 2025 | 17:12 WIB 348