As one of the key institutions of Indonesian democracy, the Constitutional Court must be careful that its decisions promote further democratisation. Photo by Flickr user Charles Wiriawan.


The past few months have seen a relatively obscure legal process, praperadilan, or pretrial motion, become a hot topic in Indonesia. The trigger was a controversial decision by South Jakarta District Court Judge Sarpin Rizaldi that ruled in favour of the then police chief candidate Budi Gunawan, striking down a Corruption Eradication Commission (KPK) decision to name him a suspect. Criticism of Sarpin was fierce, and not just because the grounds for his decision were unsound. The judge’s decision mattered because it extended the ambit of pretrial motions to include decisions on the naming of suspects – something that does not appear in the legislation. This decision has been followed by a run of other corruption suspects challenging their investigations – and getting off.


According to the Indonesian Criminal Procedure Code (Kuhap), a pretrial motion is a mechanism by which a suspect (or his or her family) can question the technical legality of an arrest or detention (for example, where an arrest was not supported by a valid warrant), the legality of the termination of investigation or prosecution, and seek compensation or rehabilitation in cases of illegal detention. It is comparable to the principle of habeas corpus in common law countries. Under the Kuhap, pretrial hearings are not intended to examine the legality of investigators’ actions in declaring someone a suspect.


In late April, however, in a review of the article on pretrial hearings, the Constitutional Court ruled that declaring a person a suspect did fall under the remit of pretrial hearings. It argued that by extending pretrial hearings in this way, the accused would have a means to challenge potential abuses of power. The court stated that this would prevent investigators from, for instance, declaring someone a suspect without the required two pieces of evidence, using illegally obtained evidence, or failing to bring suspect to trial in a reasonable amount of time.

Simple Procedure, No Appeals

As pretrial hearings were originally designed to examine the lawfulness – in a narrow and formalistic sense – of arrest or detention, procedures were designed to be simple. A single judge hears the case, it must be decided within a week and the decision cannot be appealed, either to the High Court or the Supreme Court.


Under the new, extended interpretation, however, pretrial hearings may now deal with complex legal issues. In the case of Hadi Poernomo, for instance, the South Jakarta District Court declared that the KPK’s investigation into the former Supreme Audit Agency (BPK) head was invalid, because its preliminary investigation was conducted by internal KPK staff, not those on secondment from the police or prosecutor’s office. The legal questions raised in this case are serious, and go to the core of the KPK’s operations. Such questions require extensive discussion, with an opportunity for review by a higher court through an appeals process. A single court session that cannot be appealed is not enough.


In the Budi Gunawan case, the court invalidated the KPK investigation on the grounds that Budi’s alleged offence was not within the jurisdiction of the KPK. The KPK had accused Budi of accepting bribes paid by other police officers to secure higher and more prestigious postings. The court ruled that this type of corruption allegation could only be investigated by police or prosecutors. The KPK was then forced to hand the investigation over to the Attorney General’s Office, which, in turn, handed it over to the police. They, unsurprisingly, dropped the case against one of their most senior and powerful officers.


The Constitutional Court had assumed that if a court invalidated a decision on investigation of a suspect, investigators could simply reopen a case after correcting their mistakes. The Budi Gunawan case seemed to prove this assumption wrong.

“Strong” evidence?

Another issue raised by the Constitutional Court decision concerns the rules on evidence in pretrial hearings. The South Jakarta District Court recently ruled in favour of Ilham Arief Sirajuddin, ordering the KPK to cease its investigation into the former mayor of Makassar because it had not collected “two strong pieces of evidence”. This raises the question of what exactly constitutes “strong” evidence in this early stage of investigation. Unlike some common law countries, the Indonesian Criminal Procedure Code does not recognise different degrees of evidence in different types of trials, such as “probable cause” (in pretrial hearings) or “beyond reasonable doubt” (to convict offenders).


As the Constitutional Court and many other scholars have argued, the Kuhap still contains many weaknesses, including the lack of a sound accountability mechanism to challenge abuses of power by law enforcement officials. But addressing these problems through judicial review at the Constitutional Court has created additional complications. Part of the problem is that when the Constitutional Court establishes new norms through its decisions, it cannot provide guidance on how such norms should be interpreted or change other articles to ensure coherence. Despite concurring with the decision, Patrialis Akbar, one of the judges at the Constitutional Court, correctly pointed out that the matter was best handled by the legislature.


A new draft criminal procedure code has been sitting in the legislature since 2010. Given its complexity, it is important that the legislature does not rush the reform process. Until the Kuhap is amended, let’s hope that the Supreme Court steps in and offers some guidance to fix this mess.



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