Reorganising pretrial proceedings for legal certainty
In everyday language, a pretrial motion should not be ‘paid in instalments’ like a loan. The analogy is simple, but it illustrates a serious problem. The law needs an end point so that the next stage can proceed.
The presence of the new Criminal Procedure Code (KUHAP) brings great hope for a more modern, humane criminal justice system that increasingly respects the rights of citizens.
However, every legal reform almost always leaves room to be tested in practice. One area that needs attention is the pretrial mechanism.
Pretrial motions are an important instrument for ensuring that state authority is not exercised without control. Through this mechanism, citizens have the opportunity to challenge the actions of law enforcement officials, including the naming of suspects, detention, seizure, and other objects determined by law.
In a state governed by law, such a control mechanism is absolutely necessary. A person facing criminal proceedings must not lose their rights simply because they are up against the vast authority of the state.
The problem arises when the protection of those rights opens up the possibility of using the pretrial mechanism repeatedly against a series of legal processes that essentially stem from the same case.
Article 163 paragraph (1) letter e of the KUHAP is one provision that, in the author’s view, needs constitutional clarification.
The room to file pretrial motions repeatedly has the potential to create new problems regarding when the main case can actually be examined.
Imagine a case involving objections to the naming of a suspect, seizure, and detention. If each of those objects is filed separately and repeatedly, the legal process can move from one pretrial hearing to the next.
In practice, pretrial motions have even been filed up to four times. If the law does not provide a clear limit, theoretically there is no obstacle to even more applications being filed. This is where rights and legal certainty need to be reconciled.
The author does not hold the view that the right to file a pretrial motion should be narrowed so that citizens lose protection against possible unlawful actions by officials. On the contrary, pretrial motions must remain strong as a control mechanism.
However, the strength of a legal mechanism is not always determined by how often it can be used. The quality of legal protection lies precisely in how effectively the mechanism is able to examine all objections fairly, completely, and within a reasonable time.