TEMPO.CO, Jakarta - Amid the gloom of recent executions, there was some good news last week. The Constitutional Court granted an appeal to review several clauses in the Criminal Code (KUHAP). This is commendable because the court ruling will reinforce the protection and the rights of suspects from arbitrary acts carried out by law enforcement officers.
The court granted parts of the review request filed by Bachtiar Abdul Fatah, who was convicted of corruption in the PT Chevron Pacific Indonesia case. Indirectly, the court decided to end the long debate over the naming of suspects in pretrial hearings. Perhaps the 'motivation' came after Judge Sarpin Rizaldi revoked the indictment status of Comr. Gen. Budi Gunawan following a pretrial hearing.
According to the KUHAP, only arrests, detentions, discontinuation of investigations and dropping of charges can be challenged at a pretrial hearing. The court expanded this scope by adding the indictment of a suspect, searches and confiscations.
The Constitutional Court ruling has filled in some of the gaps in the KUHAP, which the House of Representatives (DPRD) has been trying to revise for years without success. When it was passed into law in 1981, the KUHAP was described as a 'masterpiece' because of its protection of suspects whose guilt had yet to be proven. But it turned out that the KUHAP was not as potent as had been hoped. Violence is a frequent occurrence in cases involving poor people and the law has been powerless to prevent machinations and manipulations during searches and confiscations of evidence.
In another important ruling, the court fixed the definition of initial evidence deemed sufficient to indict a person as a suspect. According to the court, at least two pieces of valid evidence are necessary to formally proceed with an investigation. Previously, this only applied to KPK investigators. The control over the police and prosecutors is also more stringent now that they have to meet this criterion.
This is significant progress. Previously, with contrived evidence, a person could suddenly become a suspect. If the evidence was insufficient, an investigation could stop immediately. This provided an opportunity for extortion. A written order to halt an investigation could be issued if a suspect was prepared to pay. Unfortunately, for those not open to extortion, those who are unable to pay, the status as a suspect could stay with them for life. Today, the process of naming someone a suspect should no longer be 'on sale', and the opportunities for 'buying and selling' orders to halt investigations, hopefully will be much reduced.
To test the Constitutional Court's revisions of the law, all suspects who feel they have been treated arbitrarily can submit a legal challenge. For example, non-active KPK Deputy Chairman Bambang Widjojanto should immediately challenge his status as a suspect. Because the law is now clear, there is no need for Bambang to feel uneasy about emulating Budi Gunawan and Justice Sarpin Rizaldi, who bypassed the KUHAP before this court ruling.
It is highly likely there will be people who 'piggy-back' on this Constitutional Court ruling. It will not be surprising to see more corruption suspects try their luck through this pretrial route. Therefore, the Supreme Court should ensure that the pretrial hearing procedures are more orderly and open to public scrutiny. Most importantly, the Supreme Court must appoint judges with integrity to preside over these pretrial hearings. (*)
