The Petitioner attending the preliminary hearing of Case No. 92/PUU-XXIV/2026 on the judicial review of Law No. 20 of 2025 on the Criminal Procedure Code, Wednesday (3/11/2026). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — Hanter Oriko Siregar, an advocate, has filed a constitutional review of Law No. 20 of 2025 on the Criminal Procedure Code (KUHAP) to the Constitutional Court. The preliminary hearing for Case No. 92/PUU-XXIV/2026 was held before a panel of constitutional justices chaired by Chief Justice Suhartoyo on Wednesday (March 11, 2026).

At the hearing in the Court’s panel courtroom, the Petitioner challenged Article 235 paragraph (1) letter g of the Criminal Code, which stipulates that “evidence shall consist of: g. the judge’s observation.” The Petitioner argued that this provision is contrary to the 1945 Constitution, as it raises serious concerns from the perspectives of procedural law principles, evidentiary theory, and constitutional guarantees of a fair trial.

Under Article 4 of Law No. 20 of 2025 on the Criminal Procedure Code, criminal proceedings are conducted through a combination of an active judge system and a balanced adversarial process between the parties during court examination. The elucidation of Article 4 explains that an “active judge system” entails a significant judicial role in directing proceedings, adjudicating cases, actively discovering facts, and carefully assessing evidence. Meanwhile, “balanced adversarial parties” refers to a system that ensures equilibrium among the rights of investigators, public prosecutors, and suspects or defendants within criminal proceedings. Accordingly, Indonesia’s criminal procedure embodies a hybrid model that blends the Continental European system with the adversarial system.

Within a reasonable framework of legal reasoning, such principles necessitate a clear demarcation between the function of evaluating evidence and that of establishing proof. By categorizing “the judge’s observation” as a form of evidence, the a quo provision arguably generates legal uncertainty, as it blurs the boundary between these two distinct judicial functions.

Evidence in Procedural Law

The Petitioner further contended that the inclusion of “the judge’s observation” as evidence is inconsistent with the very nature of evidence in procedural law. Doctrinally and historically, evidence in criminal procedure constitutes instruments of proof that lie exclusively within the domain of the litigating parties, namely the public prosecutor and the defendant, submitted to convince the judge of the truth of a legal fact. Such evidence arises from an adversarial process and carries an objective character, meaning it can be presented, examined, and contested openly in court. This characteristic is a fundamental prerequisite for ensuring a fair trial.

By contrast, “the judge’s observation,” as an internal product of the judge’s cognitive process and perception, does not meet these criteria. It does not emerge from an open evidentiary mechanism and is not subject to adversarial testing by the parties. Conceptually, therefore, it should not be classified as evidence, but rather as part of the judge’s judicial function in evaluating and synthesizing the evidence presented.

“In principle, legally valid evidence must be verifiable, its source must be open to scrutiny, and its relevance and probative value must be contestable. ‘The judge’s observation’ satisfies none of these characteristics. As an advocate, the Petitioner has no legal mechanism to challenge its validity, conduct cross-examination, or demonstrate potential error or bias in such observation,” Oriko stated while presenting the main points of the petition.

Based on these arguments, the Petitioner requests the Court to declare Article 235 paragraph (1) letter g of Law No. 20 of 2025 on the Criminal Procedure Code, insofar as it pertains to the phrase “the judge’s observation as valid evidence,” unconstitutional and not legally binding. Alternatively, the Petitioner asks the Court to declare the provision conditionally unconstitutional unless it is interpreted to mean that “the judge’s observation” may only be used as a tool for judicial assessment and conviction formation, must satisfy the requirements of objectivity, transparency, and adversarial testing, and cannot stand alone as evidence.

Legal Standing

Constitutional Justice M. Guntur Hamzah, in delivering judicial advice, emphasized the need for the Petitioner to carefully review Constitutional Court Regulation No. 7 of 2025 to ensure that the petition is systematically structured and consistent. “As an advocate who engages with the Criminal Procedure Code, has the Petitioner experienced any actual harm in practice that can be articulated in the petition? If not, and the claim is based on concern or academic analysis, it should be clearly explained how this norm potentially harms the Petitioner to strengthen legal standing,” Guntur remarked.

Constitutional Justice Daniel Yusmic P. Foekh added that, as an advocate, the Petitioner should attach proof of appointment as counsel. He also underscored the importance of elaborating the fulfillment of the five constitutional requirements in a clear and detailed manner. “Particularly, the specific constitutional rights allegedly harmed and how such harm is concretely experienced. Since this is a new norm, at the very least, experiential or potential harm should be demonstrated. Additionally, with respect to the substance of the petition, the Petitioner should examine the legislative history of the Criminal Procedure Code concerning evidentiary provisions,” Daniel advised.

Before closing the hearing, Chief Justice Suhartoyo granted the Petitioner 14 days to revise the petition. The revised submission must be filed with the Court’s Registrar’s Office no later than Wednesday, March 25, 2026, at 12:00 PM WIB. The Court will subsequently schedule the second hearing to hear the revised petition.

Author: Sri Pujianti
Editor: Lulu Anjarsari P.
PR: Fauzan Febriyan
Translator: Yuanna Sisilia

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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