criminal justice system) is a system of criminal justice processing, each component function consisting of the Police as investigators, the Prosecutor's Office as public prosecutor, the Court as the party that adjudicates and the Correctional Institution which functions to reintegrate convicts into society, who work together, integrated in an effort to achieve a common goal, namely overcoming crime. The criminal justice system does not only manifest itself as a physical system (physical system), as manifested in interface relationships between sub-systems, but it must also be realized that there is an abstract system, related to the necessity of having the same appreciation of the legal values that are the goals and operational basis of each subsystem in the criminal justice system. In the criminal justice process, it starts from investigation, investigation, prosecution to examination in court. The police have the authority to carry out investigation and investigation actions, the prosecutor's office has the authority in prosecution, the judge has the authority to examine and adjudicate in court. Despite the differences in authority possessed by the Police, the Prosecutor's Office and the Judge, it is basically a system within the criminal law enforcement system regulated in the Criminal Procedure Code.
At the beginning of its formation, the Criminal Procedure Code was referred to as a "great work", but as the world of science and legal practice develops, the systemic weaknesses designed to require responses that are not only the responsibility of the legislator but also require anticipatory constitutional steps become increasingly visible.
This is a direct consequence of ignoring the constitutional mandate in the substance of the Criminal Procedure Code. Therefore, adjustments are needed to several provisions of the Criminal Procedure Code which are considered outdated and not in accordance with the current needs of criminal procedure law.
In the perspective of the Criminal Procedure Code, the operationalization of the criminal justice system is carried out with reference to the concept of functional differentiation and the concept of integration, meaning that even though each sub-system has its own authority in accordance with its field of duty independently (investigation, prosecution, court and criminal execution functions), the sub-systems must work coherently and integrated in an integral manner, as a unified system of criminal law administration.
Therefore, the enactment of the Criminal Procedure Code still requires implementing regulations regulated by each institution such as the police, prosecutor's office and courts. In current developments, as a result of the influence of increasingly developing knowledge and technology, it can influence the evidence system. So that the regulation of the evidence system contained in the Criminal Procedure Code is considered inadequate. In addition, the views and development of values that live in society, both in the national and global environment, have an influence related to effective mechanisms for tackling increasingly complex criminal acts or crimes. Therefore, to provide legal certainty, solutions must be sought through various efforts to adapt to developments and demands of society. One solution offered is to change or even replace the existing procedural law instrument, namely by reforming the Criminal Procedure Code.
M.Yahya Harahap is of the view that the problems contained in the Criminal Procedure Code are so complex that they require a clear formulation of substance. Some of the problems that can be found in the formulation of substance in the Criminal Procedure Code include:
  1. formulations of an elliptical nature are found, as a result of which articles often arise that are unclear in meaning, unclear in meaning, ambiguous, and the words are not expressed because they are considered to be included in the previous sentence.
  2. contains broad-term formulations, that every formulation or "broad terminology" can contain vague meanings of delineation/standards, have uncertain meanings so that their application is unclear, the formulation and its objectives can change according to changes in the course of time.
  3. formulation with political uncertainty, the formulation of laws cannot be separated from the political background, the formulation contains political goals or is the government's desire to minimize the risk of legal changes.
  4. Unforeseeable Development Formulation, that it is impossible for humans to make complete and perfect laws. It must be realized that since its enactment, the law has not been able to capture signals of developments in the future and develop following changes in society.
  5. Formulation containing errors, that there are formulations that are not in-depth or are incorrect in consideration, formulations that contain conflicts or controversies between laws or between articles.
Seeing the development of Indonesian society which is quite dynamic, the existing rules seem unable to keep up with changes in society. Therefore, in the philosophical basis, a renewal of the Criminal Procedure Code needs to be carried out. As an example of why the Criminal Procedure Code needs to be updated, namely in the Constitutional Court decision Number 65/PUU-VIII/2010 regarding the expansion of witnesses submitted by Prof. Dr. Yusril Ihza Mahendra. In this case, it concerns the request for judicial review of Article 1 numbers 26 and 27 of Law Number 8 of 1981 concerning Criminal Procedure Law which is linked to Article 65 jo Article 116 paragraphs (3) and (4) jo Article 184 paragraph (1a) of the Criminal Procedure Code regarding the regulation of the rights of suspects to present favorable witnesses.
Regarding this issue, the Constitutional Court stated that Article 1 numbers 26 and 27, Article 65, Article 116 paragraphs (3), (4), Article 184 paragraph (1a) of the Criminal Procedure Code are contrary to the 1945 Constitution as long as the definition of a witness in the aquo article is not interpreted as a person who can provide information in the context of investigation, prosecution, and adjudication is not always what is heard, seen and experienced firsthand.
Furthermore, the Constitutional Court in its considerations assessed that the understanding of favorable witnesses as regulated in Article 65 of the Criminal Procedure Code should not be interpreted narrowly by referring to Article 1 numbers 26 and 27 of the Criminal Procedure Code. The understanding of favorable witnesses must be interpreted more broadly because the important meaning of a witness does not only lie in what is seen, heard, or experienced firsthand in a criminal event but rather the relevance of his testimony. In other cases related to criminal procedural law, the Constitutional Court in case number 21/PUU-XII/2014 has expanded the object of pre-trial. As is known, the Criminal Procedure Code initially stated that what was related was not within the scope of pre-trial, so this provision has also been changed based on the aquo application decision. The Constitutional Court stated that Article 77 letter (a) of the Criminal Procedure Code is contrary to the 1945 Constitution as long as it is not interpreted to include the determination of suspects, searches and confiscations. This means that if Article 77 letter (a) of the Criminal Procedure Code regulates that the authority of pre-trial is only limited to the legality or illegality of arrests, detentions, termination of investigations or prosecutions, then through the aquo decision, the Constitutional Court has expanded the realm of pre-trial to include the legality or illegality of the determination of suspects, searches and confiscations. The third Constitutional Court decision related to criminal procedural law, namely the Constitutional Court decision number 34/PUU-XI/2013, the Constitutional Court decision number 45/PUU-XIII/2015 and the Constitutional Court decision number 66/PUU-XIII/2015 related to judicial review (PK). In the aquo decision, the Constitutional Court has stated that PK can be carried out more than once if it meets the reasons for PK. From the example of these 3 (three) decisions, it is clear that the Constitutional Court has given a color of change tocriminal procedural law in Indonesia. The Constitutional Court's decision itself has a final nature and has binding force for all parties who are obliged to obey and implement it. The final nature of the Constitutional Court's decision is emphasized in the constitution which is regulated in Article 24C paragraph (1) of the 1945 Constitution that the Constitutional Court has the authority to adjudicate constitutional cases at the first and last level whose decisions are final. Furthermore, this provision is derived in Law Number 24 of 2003 concerning the Constitutional Court, namely in Article 10 paragraph (1) of the Constitutional Court Law. Based on the Explanation of Article 10 paragraph (1), it is stated that the Constitutional Court's decision is final, namely the Constitutional Court's decision immediately obtains permanent legal force since it is pronounced and no legal remedies can be taken. Then, the final nature is re-emphasized in Article 47 of the Constitutional Court Law that the Constitutional Court's decision obtains permanent legal force since it is pronounced in a session that is open to the public.
Since the Constitutional Court was established in 2003, many laws have been requested for constitutional review, including the norms contained in criminal procedural law. The norms related to criminal procedural law in Indonesia are not only limited to the rules in the Criminal Procedure Code but also in other laws and regulations outside the Criminal Procedure Code.
Therefore, this book will present many new changes regarding Criminal Procedure Law in the Examination of Laws related to Criminal Procedure Law based on the Constitutional Court's decision in the context of criminal law enforcement in Indonesia.
This article is an excerpt from the book:
Oly Viana Agustine, Erlina Maria Chistin Sinaga, DEVELOPMENT OF CRIMINAL PROCEDURE LAW, (Jakarta: RajaGrafindo, 2021)
Readers can obtain the book through the following link: Link Buku