LEGAL INTERPRETATION OF THE CONSTITUTIONAL COURT OF
THE DEADLINE PROVISIONS FOR IMPLEMENTING PRETRIAL DECISIONS BASED ON DECISION
NUMBER 66/PUU-XVI/2018
Dina Liliyana1, Yusuf
Setyadi2
Universitas Nasional, Jakarta Selatan, Indonesia
dinaliliyana.unas@gmail.com1, yusuf_setyadi45@yahoo.co.id2
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KEYWORDS |
ABSTRACT |
|
legal
interpretation, constitutional court, pretrial. |
This
research contains a formulation of the problem, namely how the judge's legal
interpretation of the deadline for imposing pretrial decisions is based on
the Decision of the Constitutional Court of the Republic of Indonesia Number
66/PUU-XVI/2018. This research also aims to: analyze the interpretation of
the law by judges regarding the deadline for imposing pretrial decisions
based on the Constitutional Court Decision Number 66/PUU-XVI/2018. The
research method used is normative legal research, with statutory, conceptual,
and case approaches, which are analyzed using qualitative analysis
techniques. This study also concluded that the judge's interpretation of the
Constitutional Court Decision Number 66/PUU-XVI/2018 contains 2 (two)
substances, namely the value of legal certainty, and is based on the
principle of a simple, fast, and low-cost trial. The Constitutional Court
Decision Number 66/PUU-XVI/2018 rejected the Petitioner's request to examine
the constitutionality of Article 82, paragraph (1) letters c and d of the
Criminal Procedure Code. |
|
DOI: 10.58860/ijsh.v1i3.18 |
|
Corresponding Author: Dina Liliana
E-mail: dinaliliyana.unas@gmail.com
INTRODUCTION
Regulations
on criminal procedural law in Indonesia generally refer to the Criminal
Procedure Code (KUHAP), which came into force in 1981 (Rozi, 2019).
Through the provisions contained therein, a series of regulations are included,
including how the government agencies in power, starting with police
investigators, the prosecutor as the public prosecutor, and the court, must act
to achieve the state's goals about upholding the criminal law. Through criminal
procedural law, the perpetrators of crimes subject to criminal penalties
receive commensurate or commensurate punishments based on the degree of guilt (Bakhri, 2014).
Criminal procedural law is still related to or cannot ignore the fulfillment of
human rights.
One of the
arrangements intended to guarantee the fulfillment of human rights is the
provision regarding monitoring the validity of the determination of suspects
through pretrial (Tajudin, 2015).
This was followed by Article 77 of the Criminal Procedure Code which states
that the district court has the authority to examine and decide, in accordance
with the provisions stipulated in this law, whether an arrest, detention,
termination of the investigation, or prosecution is legal or not. However, the
Constitutional Court (MK), through decision Number 21/PUU-XII/2014, then
expanded the pretrial authority in Article 77 a quo, which also has the
authority to examine and decide whether the determination of the suspect,
search, and confiscation is valid or not. (Yuristia, 2016) . The
Constitutional Court's decision is also considered to give new hope to justice
seekers in order to be able to test the validity of coercive measures from law
enforcement officials. This shows how legal developments in society have led to
a desire to ensure that suspects can have their rights guaranteed, including
through expanding pretrial authority in conducting judicial oversight in the
Indonesian criminal justice system (Afandi, 2016).
However, not
long after, a request for a judicial review of the Criminal Procedure Code was
again filed with the MK. The object of the judicial review being requested is
Article 82, paragraph (1) letter d of the Criminal Procedure Code, which
questions the content's content in the phrase "begin to be examined by the
district court." This phrase has multiple interpretations because it is
unclear whether the pretrial can be dismissed when the public prosecutor
transfers the case file to the District Court, from being examined at the first
trial or after reading the indictment. Then, the Constitutional Court, through
its Decision Number 102/PUU-XIII/2015, finally decided for the sake of legal
certainty and justice, the pretrial was declared disqualified when the first
trial was held on the principal case on behalf of the accused/pretrial
Petitioner (Prasetyo, 2020). The case regarding
the death of the pretrial before arriving at a verdict has also happened to
Habib Rizieq Shibab in the crowd case (health protocol) and incitement that
ensnared him in 2021. The single judge at the South Jakarta District Court,
Suharno, stated that Habib Rizieq's lawsuit was dropped because the trial of
the first principal case had been starting at the East Jakarta District Court.
At this
point, the discussion regarding the pretrial provisions requested by the
suspect cannot be said to be something simple. This is because the provisions
related to the pretrial contain ambiguous, brief, and ambiguous textual
formulations containing legal certainty fairly. In this regard, in 2018, the
request for a judicial review of the Criminal Procedure Code was again filed
with the MK. The request for judicial review in question was carried out by the
Indonesian Young Advocates Association (AAMSI), represented by Minola Sebayang,
SH, MH, as the Chairperson of AAMSI and Herwanto, SH, MH, as Secretary General
of AAMSI. The request for judicial review was made by the applicant on July 23,
2018, and received at the MK Registrar's Office on July 24, 2018, based on the
Deed of Acceptance of Application Files Number 136/PAN.MK/2018. The request was
then recorded in the Constitutional Case Registration Book on August 6, 2018,
under Number 66/PUU-XVI/2018, which was corrected and received by the Court
Registrar's Office on September 17, 2018.
In summary,
in the reasons for the petition, the applicant states that Article 82 paragraph
(1) letter c of the Criminal Procedure Code is contrary to the principles of
the rule of law as stated in Article 1 paragraph (3) of the 1945 Constitution.
From the application, which is basically as described above, the applicant also
states that in numbers (2) and (3), the petite that Article 82 paragraph (1)
letter c of the Criminal Procedure Code is contrary to the 1945 Constitution
and has no binding legal force as long as it is not interpreted "if a
request to pretrial has begun to be examined, while the examination of a case
in court has not started yet, the district court must postpone the examination
of a case until a pretrial decision is made.
As is well
known, the applicant emphasized that the petition for judicial review he was
petitioning for was not neb is in idem even though the article being reviewed
was the same
which was
requested in the previous Constitutional Court Decision, namely in the
Constitutional Court Decision Number 102/PUU-XIII/2015 as previously mentioned
above, for using different constitutional reasons. However, in contrast to the
previous decision where the Constitutional Court finally granted the
Petitioner's request in part (in the case of deciding that the pretrial was
declared null and void when the first trial was held on the main case on behalf
of the accused/pretrial Petitioner), in Decision Number 66/PUU-XVI /2018, the
Constitutional Court decided to reject the applicant's application in its
entirety.
Regardless of the
substance of the three judicial review decisions against the Criminal Procedure
Code of the 1945 Constitution, it is important to point out that in carrying
out the judicial review, MK judges are required to interpret the law on the
norms being tested. In the realm of legal philosophy, what MK judges do is
related to the scientific point of view of legal hermeneutics (legal
interpretation). Legal interpretation (interpretation) is a method of finding
the law in terms of the existing rules. However, it is not clear to be applied
to the event (Manan,
2013). On the other hand, the
judge must examine and adjudicate cases for which no specific regulations
exist. Here the judge faces a void or incomplete law that must be filled in or
completed, because the judge may not refuse to examine and try a case on the
pretext that there is no law or the law is incomplete. In the description of
Sudikno Mertokusumo and A. Pitlo, judges find laws to fill this void by using
analogical thinking methods, methods of legal narrowing, and contrario methods (Hidayat,
2013). The formulation of the
problem to be raised in this study is how the judge interprets the law on the
judicial review of the deadline for imposing pretrial decisions based on MK
Decision Number 66/PUU-XVI/2018.
METHODS
This research uses the type of normative juridical
research. It is said to be normative because the law is assumed to be
autonomous, so its enforcement is determined by the law itself, not by factors
outside the law. Normative juridical research is a literature study that is
examined using secondary data. The data source as a reference for this research
uses literature studies with mainly statutory approaches, conceptual
approaches, and case approaches.
RESULTS AND DISCUSSION
a. Legal Interpretation in
Judge's Decision
Judges are professionals that are independent in
reasoning (Hidayat, 2013). This independence must still
be guaranteed, even if he sits as a member of the assembly. Judges who insist on
defending other alternatives beyond the decisions of their colleagues must
still be respected. For this reason, the arguments put forward should also be
included in the decision, either as a dissenting opinion (contrariety of
opinion) or a concurring opinion.
The Constitutional Court (MK), which was born as a constitutional court,
in interpreting the constitution, no longer sufficiently relies on
considerations of verbal and grammatical meanings. As a judicial power that
acts as a negative legislator, current legislators tend to prefer to form
statutory products that are not casuistic and general (flucht in die
generalklaussel) (Isra
& Amsari, 2019). So there is a shift from
judges whom only mouthpiece the law (normgerechtigkeit) to free judges
(einzelfallgerechtigkeit) (Prakoso,
2016). This understanding movement
changed the direction of the way of thinking which initially referred to the
system (systemdenken) and then shifted to a way of thinking that referred to
the problem (problemdenken). As stated by Joachim Sanden, this means that
judges no longer solely have to refer to statutory regulations but rather to
how the problems of justice seekers can be resolved as fairly as possible (Isra
& Amsari, 2019).
Another reason is rationalization. If the legislature passed a Draft Law
(RUU), would it have to decide whether it was unconstitutional, which is
doubtful? Therefore, it is necessary to understand that the duties of the
legislative and judicial institutions are different. However, they are tasked
with supervising and respecting each other, following the spirit of the check
and balances system. Kusumadi Pudjosewojo stated clearly that the difference in
duties is that judges determine the law concretely (in concreto) with existing
events.
In contrast, legislators (legislature) determine the abstract norms (in
the abstract) (Sugiarto,
2021). Therefore, according to
Algra and K. Van. Duyvendik, judges are considered to know the law (ius curia
novit), so the decision must contain adequate considerations, which can be
accepted logically among judicial institutions, forums of legal science, the
wider community, and the parties to the case (Hidayat,
2013 ). The judge's decision may be
following or not following abstract norms. That way, judges can change or
ignore existing legislation provisions to create concrete (legal) justice.
b. Pretrial Essence
Pretrial
is an effort to correct irregularities during the investigation and prosecution
process, especially aimed at investigators and public prosecutors, in carrying
out their duties professionally to uphold the rule of law (Panjaitan,
2018). In order to carry out the
interests of examinations in criminal acts, the law gives investigators and
public prosecutors authority to take good action in the form of arrests,
detentions, prosecutions, and a series of other actions for the sake of upholding
the rule of law. However, law enforcement officials cannot be separated in
practice from ordinary people. From the possibility of doing something that is
wrong and not in accordance with the applicable provisions, to a series of
examinations carried out with the aim of creating order and justice in society,
on the contrary, it actually results in the loss of
rights owned by a person, the Criminal Procedure Code regulates an institution
called pretrial, which is expressly regulated in article 1 paragraph (10) jo.
Article 77 of the Criminal Procedure Code. Provisions regarding pretrial are
also regulated in Article 9, paragraphs (1) and (2) of Law Number 48 of 2009
concerning Judicial Power, and provisions regarding compensation for the
legality of the arrest or detention are regulated in Article 30, Article 95,
Article 97, Article 96 Criminal Procedure Code. The provisions regarding the
failure of the pretrial examination are regulated in Article 82 (1) letter d of
the Criminal Procedure Code.
The
pretrial institution is a court institution that carries out horizontal
supervision, meaning that in this pretrial institution, the suspect or
defendant has the right as stipulated in the provisions of the law to supervise
the course of a forced effort in the process of prosecution or investigation of
him (Purba,
2017). The suspect or defendant
referred to by the author is the victim or the relevant agency; pretrial is an
institution of supervision or control throughout criminal procedural law to
protect the rights of suspects and defendants (Malarangeng,
2012).
The
pretrial institution in the Criminal Procedure Code is identical to the Pre
Trial institution in the United States which applies the Habeas Corpus
principle. Habeas Corpus gives the right to a person through a court order to
demand that the investigator or public prosecutor prove that the detention is
illegal in accordance with the applicable laws or it can be said that the
detention violates the law (Illegal). Of Habeas Corpus): "the detainee is
under your control; you are obliged to bring that person before the court and
must show the reasons that led to his detention" (Adyan,
2014). The basic principle of
Habeas Corpus is to inspire the creation of an institution that can provide
rights and opportunities for someone who has suffered because their
independence has been deprived or restricted, which can then test the truth and
determination of the actions taken by the police, prosecutors, or judicial
authorities.
There
is also an expansion of pretrial powers as stipulated in the Constitutional
Court decision Number: 21/PUU/XII/2014 dated 28 April 2015, namely adding to
the determination of suspects, searches, and seizures, including pretrial
objects. The Criminal Procedure Code is contrary to the 1945 Constitution of
the Republic of Indonesia in so far as it is not interpreted, including the
decision of the Constitutional Court, which is the legal basis for examining
whether the determination of the suspect is valid or not.
The
Constitutional Court decision Number 21/PUU/XII/2014 states that the meaning of
'sufficient preliminary evidence' and 'sufficient initial evidence' contained
in Article 1 point 14, Article 17, and Article 21 paragraph (1) of the Criminal
Procedure Code is at least 1 ( two) evidence, as
referred to in Article 148 of the Criminal Procedure Code. This is
because Article 1 point 14, Article 7, and Article 21 paragraph (1) does not
contain a minimum limit for evidence. Such coercion is a manifestation of the
principle of due process of law. The Constitutional Court made this decision by
considering article 1, paragraph (3) of the Constitution of the Republic of
Indonesia, which states that Indonesia is a constitutional state so that the
principle of due process of law must be upheld by all law enforcement agencies
in order to respect a person's human rights.
A
pretrial request can be submitted to the Head of the District Court by stating
the reasons for the submission. The pretrial examination program is led by a
single judge and assisted by a clerk; three days after it is filed, it will
immediately be examined at trial, and the judge must decide based on the
reasons within a deadline of seven days later.
Based
on Article 77 of the Criminal Procedure Code, the scope of the pretrial
institution is to examine and decide following the provisions stipulated in the
Criminal Procedure Code, as well as those contained in the Constitutional Court
Decision Number: 21/PUU/XII/2014 regarding whether the determination of the
suspect, search, and confiscation are legal or not.
Furthermore,
as explained in Articles 79 to 81 of the Criminal Procedure Code, pretrial
decisions must contain reasons. Also related to what matters that must be
included in the pretrial decision are regulated in Article 82 paragraph (3) of
the Criminal Procedure Code. The process of examining the pretrial hearing uses
a fast procedure, and this is based on the principle above. The form of
pretrial is also simple without reducing the contents of clear considerations
based on laws and regulations (Sebayang,
2020). The content of pretrial
decisions, in general, is regulated in Article 82, paragraphs (2) and (3),
Article 96, paragraph (1) of the Criminal Procedure Code. In addition to the
pretrial stipulation which contains the basic reasons for legal considerations,
it also contains a judgment. The injunction included in the determination must
follow the reason for the request for the examination, which forms the basis of
the injunction (KARIMAH,
nd).
As
for pretrial applicants, the provisions of Articles 79 and 80 of the Criminal
Procedure Code regulate who is authorized to submit pretrial requests. As is
well known, Article 79 of the Criminal Code states that "A request for an
examination regarding whether or not an arrest or detention is legal is submitted
by the suspect, his family, or his attorney to the head of the district court
by stating the reasons" (Darme,
2013).
c. Judge's Legal Interpretation
of the Deadline for Imposing a Pretrial Decision Based on the Constitutional
Court's Decision Number 66/PUU-XVI/2018
Pretrial
is a new institution regulated in the Criminal Procedure Code (from now on
referred to as the Criminal Procedure Code) to protect the human rights of
suspects (Kaurow,
2015). Since Law Number 8 of 1981
concerning Criminal Procedure Law was promulgated, this pretrial institution
began to be formed to avoid law enforcement officials' arbitrariness,
especially investigators and public prosecutors.
Thus
it can be concluded, as also emphasized by HMA Kuffal, that the existence of
pretrial aims to protect human rights, which at the same time functions as a
means of horizontal supervision, or in a more assertive sentence, it can be
said that the holding of pretrial has the intention of being a means of
supervision horizontally to protect human rights, especially the rights of
suspects and defendants (Parikesit
& Eko Soponyono, 2017).
In
this regard, on the object of the author's research, the Constitutional Court
(MK), through its decision, namely Decision Number 66/PUU-XVI/2018, again
decided on pretrial cases which specifically questioned the provisions of the
norms of Article 82 paragraph (1) letter c and letter d of the Criminal Procedure
Code. The Petitioner assessed the provisions of the quo norms causing the
Petitioner to be unable to carry out his professional duties to the fullest in
carrying out the task of providing legal services in the framework of law
enforcement, equal opportunity to obtain justice and legal protection because
the norms of the article a quo had resulted in delays for the Petitioner in
seeking formal truth through pretrial. Strictly speaking, the Petitioner stated
that the provisions of the norm a quo in the Criminal Procedure Code were
contrary to Article 1 paragraph (3), Article 28D paragraph (1), and 28G
paragraph (1) of the 1945 Constitution.
As
is well known, Article 82 paragraph (1) letter c of the Criminal Procedure Code
contains provisions regarding the deadline for examining pretrial requests,
which is no later than 7 (seven) days. This arrangement is considered to cause
problems because, in practice, the pretrial judge can postpone the trial beyond
the pretrial examination deadline, either because the respondent is not present
or at the respondent's request to postpone the trial. Absence or postponement
of pretrial hearings is often used, especially by investigators, to buy time so
the main case can begin the trial. Meanwhile, Article 82 paragraph (1) letter d
of the Criminal Procedure Code determines that if a case has already begun to
be examined by the District Court, while the examination regarding a request to
pretrial has not been completed, then the request is dismissed.
This
is reflected in the Habib Rizieq case, where the pretrial he filed regarding
the crowd (health protocol) and sedition case was declared invalid by judge
Suharno at the South Jakarta District Court. The judges aborted Habib Rizieq's
pretrial that the first principal case at the East Jakarta District Court had
started. From this case, we can see how the pretrial system is unable to be a
solution for justice seekers because the parties who should be present at the
pretrial hearing can be absent without a clear reason so that the 7 (seven) day
deadline stated in Article 82 paragraph (1) letter c The Criminal Procedure
Code just passed before the suspect (plaintiff) received a decision testing the
validity of the suspect's determination. In connection with this, John Rawls
once said that justice is honesty, fairness, and decency. This theory is also
known as justice as fairness. Is it appropriate for a justice seeker who comes
before the court to fight for justice instead of being dropped by a decision
based on a thorough and thorough examination of the case but being aborted even
before the decision is received?
It
is important to note that the existence of pretrial aims to provide guarantees
for the protection of human rights and, at the same time, functions as a means
of horizontal oversight. However, in its journey after more
or less 40 years of the Criminal Procedure Code, in upholding justice
for suspects in the aspect of protecting human rights, the Pretrial institution
in reality and practice in the field has not fulfilled the thirst of justice
seekers. The case of the death of Habib Rizieq's pretrial was an example of the
unprofessionalism of the investigators in carrying out their duties so that the
proposed pretrial was aborted without a court decision regarding the validity of
the suspect determination. Therefore, if pretrial is linked to the principles
of human rights (HAM), precisely article 3 paragraph (2) of the Human Rights
Law, which reads "guarantees recognition, guarantees, protection, and fair
legal treatment and obtains legal certainty and equal treatment in before the
law for everyone." So the pretrial in the
enforcement process is not in line.
To
support this, citing what was conveyed by John Rawls in social justice theory,
justice must be fought for in two ways, including: first, correcting and
improving the condition of inequality experienced by the weak by presenting
social, economic, and social institutions. And empowering politics. Moreover,
second, every rule must position itself (Nurbani,
2014).
Reconnecting
with the lawsuit filed by the applicant, the phrase "begins to be examined
by the district court" is considered by the Petitioner to have multiple
interpretations because it can mean that the pretrial can be dismissed from the
time the case file is transferred by the public prosecutor to the District
Court, from being examined at the first trial, or from after reading of the
indictment. However, as is known in the previous Constitutional Court Decision
Number 102/PUU-XIII/2015, which also challenged the provisions of Article 82
paragraph (1) letter da quo, it is known that the judge decided that for the
sake of legal certainty and justice, the pretrial was dismissed when the first
trial was held. Based on the case on behalf of the accused/pretrial Petitioner.
In other words, the Panel of Judges of the Constitutional Court in Decision
Number 102/PUU-XIII/2015 previously confirmed the interpretation of Article 82
paragraph (1) letter d of the Criminal Procedure Code, which limits that a
pretrial can be declared null and void after the case has been delegated and
the first trial has started, whatever the agenda of the first session.
The
provision that limits the process of examining pretrial requests for 7 (seven)
days referred to is then considered by the judge to reflect the principle of
speedy trial, bearing in mind the nature of pretrial requests is only to test
the formal legitimacy of the process carried out by investigators or public
prosecutors about the provisions of Article 77 of the Criminal Procedure Code
juncto Decision Constitutional Court Number 21/PUU-XII/2014 dated 28 April
2015. This provision has provided certainty by explicitly limiting the length
of time a pretrial petition is examined. According to the judge, if the norm is
declared unconstitutional, or if the condition is given that the main trial of
the case can only begin after a pretrial request has been decided, it will
trigger legal uncertainty that is not following the previous Constitutional
Court Decision Number 102/PUU-XIII/2015.
Regarding
these considerations, the authors agree that Decision Number 102/PUU-XIII/2015,
which confirms the provisions of Article 82 paragraph (1) letter d of the
Criminal Procedure Code, is contrary to the 1945 Constitution and does not have
binding legal force as long as the phrase "a case has begun to be
investigated" is not interpreted "The pretrial request is dropped
when the principal case has been delegated, and the first trial of the
principal case has begun on behalf of the accused/pretrial petitioner," in
fact it is clear that the provisions for the pretrial petition are declared
invalid when the first trial of the principal case begins. It can also be said
that the pretrial request is declared invalid if the public prosecutor has delegated
the principal case on behalf of the accused/pretrial Petitioner to the district
court, which has been registered and then begins the first trial examination
regardless of the agenda.
Concerning
Decision Number 102/PUU-XIII/2015, there is an additional period that is
sufficient because if it is calculated by the time between registration of the
case to the first trial of examining the main case in judicial practice so,
far, it is not less than 7 (seven) days and can even more. Therefore, if there
is a problem, as argued by the Petitioner, where the pretrial petition has
already begun its examination, then there should be no concern that the
pretrial will not be decided before the first session of the main case. This is
because, considering that the pretrial petition has already begun its
examination, within 7 (seven) days, the pretrial petition must have been
terminated.
This
is also in line with the grace period the Panel of Judges used to carry out the
first session after the public prosecutor to the District Court delegated the
main case. Registration has been carried out, which also requires an average
time of not less than 7 (seven) days, some even more. .
Because the time to determine the first trial depends, among other things, on
the domicile of the witnesses who will be examined at the first trial which is
very much related to the distance between the witnesses' residence and the
grace period for summoning witnesses to appear at trial by following the
applicable summons procedural law. Meanwhile, if the examination of the
pretrial petition begins ahead of the main trial of the case, then this becomes
the authority of the pretrial petition judge and the panel of judges who hear
the main case to consider the sense of justice without interfering with their
respective authorities and harming the suspect's rights.
Apart
from being factual, the judge's considerations regarding the 7 (seven) day
deadline also depart from the principle of a simple, fast, and low-cost trial.
Referring to Law Number 48 of 2009 concerning Judicial Powers, precisely in
Article 2 paragraph (4), it has stated that: "Judicial are carried out
simply, quickly and at low cost," and the affirmation in Article 4
paragraph (2) of the Judicial Powers Law. The MK judges emphasize such a judicial
principle in their considerations regarding the 7 (seven) day deadline for
imposing a pretrial decision.
In
terms of considering the constitutionality of the norms of Article 82 paragraph
(1) letters c and d of the Criminal Procedure Code, the judge emphasized that
the two norms are provisions which, in essence, order to expedite
the process of delegation of cases in terms of criminal trial
proceedings. According to the judge, this matter is related to two important
things, namely: first, is the implementation of the principle of a fast,
simple, and low-cost trial, which is one of the principles of justice mandated
by Article 2 paragraph (4) of the Judicial Powers Law. As is known, the trial
process, especially in criminal cases, should be carried out as quickly as
possible to implement the principle of legal certainty without compromising the
principle of justice. Thus, promptness in resolving criminal cases is an
obligation for the state, in case law enforcement officials. Second, the
acceleration of the settlement of cases is one of the suspect's rights and aims
to protect the suspect from the arbitrariness of law enforcers who delay the
settlement of cases. The time for settlement of cases impacts the length of
detention, which is appropriate to be assessed as a deprivation of liberty for
the suspect.
However,
the protracted examination of cases will lead to various detrimental
consequences for the suspect being examined. This is in accordance with the
general adage in upholding justice, namely, "Justice delayed, justice
denied", or "delayed justice is justice denied" (Sudarmono,
2018). In other words, delaying
the implementation of the process of upholding justice by law enforcers can
cause injustice. At the same time, the limitation of pretrial time and
provisions that abort pretrial when the trial begins regarding the main case
is, in essence, related to the implementation of the principle above.
This
can be drawn from at least 2 (two) important substances in the interpretation
of MK judges on Decision Number 66/PUU-XVI/2018 in examining the
constitutionality of Article 82 paragraph (1) letters c and d of the Criminal
Procedure Code, namely: first, if the norm is declared unconstitutional, or
given the condition that the main trial of the case can only begin after a
decision on a pretrial request triggers legal uncertainty that is not following
the previous Constitutional Court Decision Number 102/PUU-XIII/2015. This is
also in line with the grace period used by the Panel of Judges to carry out the
first session after the main case has been delegated by the public prosecutor
to the District Court. Registration has been carried out, which also requires
an average of not less than 7 (seven) days, some even more. Because the time to
determine the first trial depends, among other things, on the domicile of the
witnesses who will be examined at the first trial which is very much related to
the distance between the witnesses' residence and the grace period for
summoning witnesses to appear at trial by following the applicable summons
procedural law. Meanwhile, if the examination of the pretrial petition begins
ahead of the main trial of the case, then this becomes the authority of the
pretrial petition judge and the panel of judges who hear the main case to
consider the sense of justice without interfering with their respective
authorities and harming the suspect's rights.
Second,
the judge's interpretation emphasizes simple, fast and
low-cost trial principles. Referring to Law Number 48 of 2009 concerning
Judicial Power, to be precise in Article 2 paragraph (4) it states that:
"Judgment is carried out simply, quickly and at low cost," and
Article 4 paragraph (2) also states, "The court helps justice seekers and
try to overcome all obstacles and obstacles in order to achieve a simple, fast and
low-cost trial. This judicial principle was emphasized by the MK judges
regarding setting a 7 (seven) day deadline for imposing a pretrial decision,
which was considered constitutional.
CONCLUSION
The decision of
the Constitutional Court Number 66/PUU-XVI/2018, which rejected the
Petitioner's petition in examining the constitutionality of Article 82
paragraph (1) letters c and d of the Criminal Procedure Code, contains the
interpretation of the MK judges, which contains 2 (two) substances: first, the
value of legal certainty for maintaining the provisions of the deadline 7
(seven) days on the imposition of the pretrial decision for the suspect.
Moreover, secondly, the interpretation of the quo Constitutional Court Decision
is based on the principles or principles of a simple, fast, and low-cost trial,
as stated in Article 2 paragraph (4) and Article 4 paragraph (2) of Law Number
48 of 2009 concerning Judicial Power.
REFERENCES
Adyan, AR (2014). The
position of the Judge Commissioner as Investigator Supervisor in Carrying Out
Forced Measures. Staatrechts Law Journal , 1 (1), 25–38.
Afandi, F. (2016). Comparison
of Pretrial Practices and Formation of Preliminary Examining Judges in
Indonesian Criminal Courts. Law Platform-Faculty of Law, Gadjah Mada University, 28 (1),
93–106.
Bakhri, S.
(2014). The Indonesian criminal justice system in the perspective of
judicial renewal, theory, and practice. Student Library.
Darme, M. (2013). Study of
the Role of Pretrial Institutions in Horizontal Supervision of Law Enforcement
Officials (Case Study: Decision No. 01/PRA/2010/PN. BI).
Hidayat, A. (2013). Legal
discovery through the interpretation of judges in court decisions. Pandecta
Research Law Journal, 8 (2).
Isra, S., & Amsari, F.
(2019). Changes to the Constitution Through Judge Interpretation. Mr. Go. id,
6.
Karimah, Lnsa (n.d.). Juridical
Analysis Determination of Suspect as Pretrial Object After Constitutional Court
Decision Number: 21/PUU-XII/2014 (Decision Number: 19/PID. PRAP/2016/PN. PBR.).
Kaurow, GJ (2015). pretrial
from the perspective of human rights according to the Criminal Procedure Code. Lex
Crimen, 4 (8).
Malarangeng, AB (2012).
Pretrial Solution by the Commissioner Judge Based on the Criminal Procedure
Code Bill. Pandecta Research Law Journal, 7 (1).
Manan, A. (2013). Legal
Findings by Judges in the Practice of Procedural Law in the Religious Courts. Journal of
Law and Justice, 2 (2), 189–202.
Nurbani, SH
& ES (2014). Application of Legal Theory in Dissertation and Thesis
Research. PT. King of Grafindo Persada.
Panjaitan, SNA (2018). Analysis
of Pretrial Decisions in Premeditated Murder Cases (Decision Study Number:
53/Pid. pra/2017/Medan PN).
Parikesit, I., & Eko
Soponyono, S. (2017). Overview of Pretrial Objects in the Criminal Justice
System in Indonesia. Diponegoro Law Journal , 6 (1), 1–60.
Prakoso, A. (2016). Law
Discovery: Systems, Methods, Flow, and Procedures in Finding the Law.
Prasetyo, CA (2020).
Juridical Analysis of Decision Number 34/Pid. Sus/TPK/PN. Jkt. Pst Which
Overrides Pretrial Decision Number 40/Pid. Pre/2018/PN. Jkt. Cells Associated
with the Criminal Code. NOVUM: Journal of Law, 7 (4).
Ancient, TLD (2017). Pretrial
As Legal Remedies For Suspects. Papua Law Journal, 1 (2),
253–270.
Rozi, F.
(2019). Proof System in the Trial Process in Criminal Cases. Unaja Juridical
Journal , 1 (2), 19–33. https://doi.org/10.35141/jyu.v1i2.486
Shadow, S.
(2020). Pretrial as One of the Efforts to Protect the Rights of Suspects in
Examination at the Investigative Level (Medan District Court Study). Journal
of Rule of Law: Media Communication and Information Law and Society, 19 (2),
329–383.
Sudarmono, A.
(2018). The
Principle of Equality Before the Law Against the Notary's Right to Refusal to
Keep the Deed Secret.
Sugiarto, US
(2021). Introduction to Indonesian Law. Graphics Light.
Tajudin, I.
(2015). The urgency of examining whether a suspect's determination is legal is
an extension of a pretrial object in an effort to protect human rights. Padjadjaran
Law Review , 3 , 1–19.
Yuristia, R.
(2016). Effect of Constitutional Court Decision Number 21/PUU-XII/2014 on
Pretrial Submissions Regarding the Determination of Ongky Syahrul Ramadhona's
Status as a Suspect. Verstek, 4 (3).
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