Experts for the Government taking oath before testifying at a judicial review hearing of Law No. 11 of 2021 on Prosecution, Tuesday (8/26/2025). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) held another hearing for the material judicial review of Law No. 11 of 2021 on the Second Amendment to Law No. 16 of 2024 on the Prosecution Service on Tuesday, August 26, 2025 in the plenary courtroom. This eleventh hearing concerned Cases No. 9/PUU-XXIII/2025, 15/PUU-XXIII/2025, and 67/PUU-XXIII/2025.
Chief Justice Suhartoyo and the other eight constitutional justices presided over the session to hear experts for the President/Government: law lecturer at the University of Indonesia Choky Ramadhan and Rear Admiral (Ret.) Soleman F. Ponto.
In his testimony, Choky emphasized that prosecutors do not enjoy absolute immunity but rather qualified immunity, insofar as they perform their duties and exercise their authority in accordance with the law. He maintained that Article 8 paragraph (5) of the Prosecution Law does not conflict with the 1945 Constitution.
“Prosecutors require protection, but such protection may be provided in the form of deferred examination (temporary immunity) or through special mechanisms, particularly in cases motivated by retaliation,” Choky explained.
He also referred to international practice, noting that absolute immunity was once recognized in the United States under Imbler v. Pachtman (1976), but was later replaced by qualified immunity in 1993.
“This means that prosecutors who commit or are involved in criminal acts in the course of their duties are not granted absolute immunity under that ruling. However, this standard was short-lived, as in 1993 the United States overturned the decision and replaced it with qualified immunity,” he said.
According to Choky, this approach is consistent with United Nations guidelines, particularly Article 21, which underscores that prosecutors remain subject to criminal liability when they violate domestic law. He pointed out that between 2008 and 2023, at least 12 criminal cases involved prosecutors as defendants who were duly prosecuted and convicted.
Prosecutorial Intelligence
At the same hearing, retired Rear Admiral Soleman F. Ponto stressed that prosecutorial intelligence functions as the “eyes and ears” of the prosecutor, supporting law enforcement in a specific capacity distinct from other intelligence agencies. He clarified that coordination conducted by the attorney general is not an exercise of “superpower” authority, but rather a purely coordinative role aimed at ensuring consistency in the handling of joint civil and military cases.
He stated that the provisions set out in Article 308 letter a and Article 35 paragraph (1) letter g of the Prosecution Law are proportional, reasonable, and constitutional. Therefore, he argued, the Petitioners’ request should be rejected in its entirety.
He concluded by stating, “Justice and legal certainty can only be realized through an integrated and well-coordinated system of law enforcement.”
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Petitioners’ Expert Argues Unlimited Immunity Leads to Impunity
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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 believe 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 request that the Court grant their petition. They also ask that the Court declare Article 8 paragraph (5) of the Prosecution Law unconstitutional.
Also read:
Prosecutors’ Overlapping Authorities Questioned
Petitioners Strengthen Arguments on the Cause of Prosecutor’s Authority Overlap
Meanwhile, Case No. 15/PUU-XXIII/2025 was filed by activist/university student Agus Setiawan, advocate Sulaiman, and the Civil Youth Alliance (Perhimpunan Pemuda Madani). They challenge Article 11 paragraph (1) and paragraph (2), Article 30B letter a, Article 35 paragraph (1) letters g and letter e of the Prosecution Law. They argue that the articles are contrary to Article 30 paragraphs (3) and (4) of the 1945 Constitution. Under Article 11A of the Prosecution Law, the implementation of the prosecutor’s duties, 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 paragraphs (1) and (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 Prosecution Office a multifunctional institution that causes damage to the independence of the Prosecution Office,” Agus Setiawan explained at the preliminary hearing on Thursday, March 3.
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 Prosecution Law to coordinate, control, and conduct investigation, examination, and prosecution 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
Lastly, Petition No. 67/PUU-XXIII/2025 was filed by advocates Harmoko and Juanda. At the preliminary hearing on Friday, May 16, they argued that Article 8 paragraph (5) of the Prosecution Law has given 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 emphasized 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 Prosecution Law contradict Article 27 paragraph (1), Article 28D paragraph (1), and Article 28I paragraph (2) of the 1945 Constitution, which recognize the principle of equality before the law.
The Petitioners also request that the Court declare Article 8 paragraph (5) of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on the Prosecution unconstitutional and not legally binding 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 : Yuniar Widiastuti, 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.
Tuesday, August 26, 2025 | 16:31 WIB 250