The Constitution Court of Indonesia Affirmation for Additional Pretrial Ambit Provides Comforts for Human Rights in Indonesia

May 04, 2015


Human Rights advocates in Indonesia received an unexpected support from the Constitution Court of Indonesia's decision to broaden ambit for Pretrial Proceeding.

 

 

Human Rights advocates in Indonesia received an unexpected support from the Constitution Court of Indonesia on 29 April 2015, when the court handed down a decision which broadened the range of pretrial objects under the Criminal Procedure Law (KUHAP).  The decision which may seem trivial in developed civil societies marked as a small albeit significant step in protecting the rights of the individual in Indonesia during a criminal investigation for the presumption of innocence.

Essentially, the Constitution Court amended article 77 of the Criminal Act and broadened the ambit in regards to pre-trial objects.  The decision ruled the act of naming a person as a suspect and searching and seizing evidence during a criminal case by an investigator can be questioned in a pretrial.  Prior to the new ruling, pre trial proceedings were limited to examining the legality of the arrest and/or detention and deciding whether the district court has the jurisdiction to try the case.  The Constitution Court decision had strengthened Habeas Corpus in the Criminal Code of 1981 by allowing a defendant to question and challenge the status of suspect in a pre-trial. 

The review of the Criminal Code (KUHAP) by the Constitution Court of Indonesia was triggered by a controversial case involving a Police Commissioner Budi Gunawan who was established as a suspect for a case involving graft by the Corruption Eradication Commission.  The Police Commissioner’s legal team took an unprecedented avenue, challenged the decision in a district court and succeeded in overturning his status as a suspect. The decision made by a district court in South Jakarta on 16 February 2015 which was chaired by a sole judge had stirred up controversy as to the legality of the ruling.

Constitutional Judge Anwar Usman explained that when the Criminal Code was first drafted in 1981, establishing a suspect was not a critical and problematic issue within the dynamics of Indonesian society.   Article 77 of the Criminal Act was perceived weak in protecting human rights of individuals.  The Criminal Code (KUHAP) did not permit an investigator’s act of naming a person as a suspect to be challenged. 

Human rights of the accused must also be protected by the Courts asserted Amwar Usman during the reading of the summation. The review underlined the possibility of power abuse and human rights violations by investigators.  In conclusion, a pretrial hearing would be an appropriate forum to examine the investigative proceeding. In addition to amendment on Article 77, the Constitution Court also revised Article 1 no 14, Article 17 and Article 21 which required a minimum presentation of two evidences during an investigation, before establishing an individual as a suspect.

Habeas corpus has still a long way to go in the Indonesia Legal system. Guaranteeing the presumption of innocence should also extends beyond the judicial system. In many advanced civil society, journalist codes of ethics prevent journalist from referring to suspects as though their guilt was certain. Journalist are bound to use  "suspect" or "defendant" when referring to the suspect, and use "alleged" when referring to the criminal activity that the suspect is accused of. The case of Budi Gunawan, controversial and politically sensitive it may have been, had unwittingly path the way for the Indonesian Legal System and Law Enforcement to further venture an approach in protecting the rights of the accused.  

 

 

Author : Arief Darmawan