RESOURCE MATERIAL SERIES No. 53

THE DEVELOPMENT OF THE PROSECUTOR’SJURISDICTION IN THE CRIMINAL JUSTICE SYSTEM OF
INDONESIA
Antonius Sujata*
I. INTRODUCTION
Formerly, in 1605 the IndonesianArchipelago was colonized by the Dutch
and in 1512, prior to the Dutchcolonization, several Indonesian territories,
especially Moluccas and Sumatera, were
under the control of Portugal.
To carry out their colonization ofIndonesia, the Dutch administration set up
the Dutch East India Company (Verenigde
Oast Indische Companie). With theestablishment of the Company, not only did
they succeed in eliminating the Portuguese
administration, but they also became aprominent trader controlling the spicetrade in Indonesia and managed to expand
their power over the territory. The Dutch
then gradually took over theadministration, legislation and judicature1of the areas which they ruled. The Dutch
East India Company formulated various
rules of the law, appointing officers toprotect their interests and also formed
distinct legal bodies. Initially, in the area
under their rule, the Dutch East India
Company put into effect the same laws
applicable to all walks of life, i.e., Dutch
law. But since the circumstances did not
permit and opposed reality (manyrebellions broke out), the Indonesian people
were subject to the customary law, which
as far as it was concerned that the Dutch

Law did not apply. 2 Indonesia declared
independence on 17 August 1945.
Indonesia was colonized by the Dutch formore than 340 years. So bearing in mind
the long period of said colonization, it isunderstandable that the Dutch legal
system has a very strong influence on
Indonesian law.
Up to now, there are still many legaciesof Dutch law remaining valid in Indonesia,
including the Civil Law Code, theCommercial Law Code, the Civil Procedure
Code, and the Penal Code as well as manyothers, which make up a total of about 300.
In order to adopt all the existing provisionsof the law before the birth of Indonesia (17August 1945), Article II of the Interim
Regulations of the 1945 Constitution statesthat all existing provisions of law shallremain applicable unless superseded by
new laws.
In Indonesia, the term prosecutor as weknow now as “Jaksa” has its origin traced
to the Sanskrit word “Adhyaksa”.3
At the time when the territories ofIndonesia were being divided into several
governments, among the duties of aprosecutor was to double up as a judge and,more often than not, a prosecutor also acted
as a defence counsel.

2* Public Prosecutor, Head of Planning Bureau,
Indonesia.
1 Supomo and Djoko Sutono, Sejarah Hukum Adat/
History of the Prescriptive Law in Indonesia, 16091948, Djambatan Publisher, Jakarta, Indonesia.

68

Kima Windu Sejarah Kejaksaan Republik
Indonesia 1945-1985/Forty Years’ History ofProsecution, Republic of Indonesia 1945-1985,
Attorney General of the Republic of Indonesia,
Jakarta, 1985.
3 Mr. Tresna, R Peradilan di Indonesia/Court inIndonesia, Pradnya Paramita, Jakarta, 1978.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
The Dutch colonial administration
distinctively separated the duties of theprosecutor, judge and defence counsel.
However, the duties of a prosecutor as we
now have, experienced various
developments.
The Dutch put into effect the Criminal
Procedure Code for the first time inIndonesia through Law No. 23/1847. Basedon this law, the courts hearing cases
involving Indonesians were different fromthose for Dutch citizens.
Nevertheless the prosecution of criminalcases at both judicial bodies were handled
by prosecutors.
Apart from that, in accordance with thelaw, prosecutors are duty bound to defend
the rule of law and carry out the decisionof the court. After that, the duties ofprosecutors developed further to include
the powers to conduct investigation andfurther investigation. In fact, the said
power further was extended to include thefollowing:(1) power to exclude certain matters inpublic interest,(2) power to file an appeal,(3) power to file cassation to the Supreme
Court in the interest of the law,whether in criminal or civil matters,(4) representing the country andgovernment in criminal and civil
matters,(5) applying to a judge to place someone
in the hospital,(6) applying to a judge to dissolve a
corporate body, and(7) petitioning for the annulment of amarriage.
On 8 March 1942 the Japanese Army
took over administration from the Dutch
and Indonesia.
At that time there were six different
public courts in Indonesia namely:• The Supreme Court (Saikoo Hooin),• The Appellate Court—High Court(Kootoo Hooin),• The Court of First Instance (Tihoo
Hooin),• The Police Court (Keizai Hooin),• The District Court (Ken Hooin), and• The Municipal Court (Gun Hooin).
These courts were respectively assignedwith a prosecutor placed administratively
under the charge of the Head of
Prosecutors4 instead of a Resident (Headof Administration).
II. INDONESIA BOARD OF
PROSECUTORS AFTERINDONESIA’S INDEPENDENCE ON
17 AUGUST 1945
In the text of the Constitution, not evena word was used assertively or directly todescribe specifically the prosecution.
However, this does not mean that thepersons drafting the Constitution failed toturn their attention on the existence of theprosecution. The Board of Prosecutors,
which was formed at the time when
Indonesia was established, is stillrecognized and its existence remains as it
was by virtue of Article II of the Interim
Regulations.
Under the circumstances after
independence, the priority for theformation of the Board of Prosecutors was
as important as the formation of the Boardof Judiciary.
Since it is in unity with the board of
judiciary, it was best that both the judiciaryand prosecution be put under the JusticeDepartment. The criminal procedure code
currently prevailing adopted the criminal
procedure code left behind by the Dutch.
The New Indonesian Criminal Procedure
Code has been in effect since 1941.
Based on the laws contained in the
Criminal Procedure Code, the Board of
Prosecutors, consisting of all prosecutors,
is placed under the charge of the Attorney
4

Article 3 Osamu Seirei No. 3 1942; Act of Indonesia
No. 1 1942.

69

RESOURCE MATERIAL SERIES No. 53
General; but at provincial level, it is headedby Chief Public Prosecutor.
Prior to this, the Board of Prosecutors
was under the Interior Minister, and at
district level, all prosecutors were under
the Regent.5
Bearing in mind that the prosecution’sorganization is not autonomous, it isunderstandable that the local board ofgovernment has a strong influence over thefunctions of the Indonesian prosecution.
The position of the Indonesian Board of
Prosecutors saw another change upon theenactment of the Emergency Law No. 1/
1951. At that time, the Board of
Prosecutors, which was originally underthe Interior Department, was transferredto the Justice Department.
All prosecutors in the course of their
daily prosecution duties are attached to the
local court of first instance.
On 22 July 1961 with the enactment of
Law No. 15/1961, the Board of Prosecutors
was separated from the JusticeDepartment to become an autonomous
Board having its own organization under
the charge of the Attorney General.
Bearing in mind the change of status andorganizational position, the date of 22 Julyis considered by the prosecution as animportant day that marks the birthday ofIndonesian Prosecution in the postindependence era.
The whole prosecution organization isplaced directly under the power of the
President and is accountable according tohierarchy. The Attorney General being theAssistant of President shall be appointed
and retired by the President. According to
the constitution, the President of Indonesia
as the Head of State shall hold special
powers in relation to criminal matters byordering the Attorney General either to
5

A. G. Pringgodiado, Sejarah Pembuatan UndangUndang Dasar 1945/History of drafting the 1945
Constitution, Legal and Comunity Magazine, Year
3, No. 2, May 1952.

70

proceed with prosecution or withdraw
prosecution by granting amnesty or
abolition.
The position of the prosecution in the
structure of the Republic of Indonesia
vested with the executive power in the
aspect of justice has inherently taken root
since the era of the Governments of
Majapahit, Mataram and Cirebon.
During the colonial rule of the Dutch,
the main tasks of the Board of Prosecutors
were to protect the political, economic andsecurity interests of the colonialists.
However, during the independence, theprosecutors became the protectors of the
Republic of Indonesia against thecolonialists and other troublemakers.
After the Indonesian army had
succeeded in dispelling the remnants of the
supporters of the Dutch administration in
1950, several of the supporters were later
tried after undergoing investigation andthen faced with prosecution by the Attorney
General of the Republic of Indonesia.
For that reason at the time of hearing
cases involving military personnel, both theprosecutor and the judge hold honorary
military ranks, so much so that the
Attorney General is also acting as theMilitary Attorney General. The
organizational relationship with the police
apparatus is also different when comparedto the present setting.
The police apparatus carries out theinvestigation of criminal cases functionally
under the supervision of the prosecution
because the police investigation status is
to act in assistance to the prosecution.
As such the police apparatus, eventhough having its own organization, whencarrying out its duties in investigation, willinvariably obtain instructions from theprosecution.
The position of the police investigation
apparatus as assistant to the prosecution
until 1961 was actually efficient andeffective in handling criminal cases
because in the course of conducting

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
investigation, the prosecution could
directly give instructions without thebureaucratic influence of the police board.
In the past the relationship between theprosecution and the armed forces,
especially in the handling of criminal
offenders who were military personnel, was
not a problematic one because the Attorney
General was also the Military Attorney
General. However, in 1971, the Civil Court
was distinctly separated from the Military
Court, thus rendering the Attorney General
only to powers of prosecution against
criminal offenders from among civilians.
In 1950, there was a condition touchingon the special privileges of a minister who
was charged for committing an offence(forum privilegiatum). It states that aminister could only be tried in the first andlast instance by the Supreme Court. For
example, a minister by the name of Sultan
Hamid was tried by the Supreme Court andthe public prosecutor was the Attorney
General.
The said special privilege stood only fora while and was later lifted because it was
not compatible with the basic principle thatevery one has equal status before the law.6
The position of the Attorney General as apublic prosecutor in cases at the Supreme
Court bears the consequences that the
Attorney General must be a professional
Master of Laws and from time to time heshall be obliged to appear in the Supreme
Court.
In other words, the Attorney General’s
post is a career rather than a political post(without experience as a prosecutor).
In its further development, in fact the
Attorney General has held a ministerial
post. By acting as an Assistant of the
6

Pasal 27 Undang-Undang Dasar 1945/Article 27 of1945 Constitution: All citizens have equal status
before the law and in government and shall abideby the law and the government without any
exception (The equal status of everyone in law andgovernment).

President, the post of Attorney General
constitutes a political post. However thismatter took place after the abolition of theregulations on special privilege on aminister to be tried by the Supreme Court(Forum privilegiatum). This post which ispolitical in nature means that it should not
be held by a Master of Laws or one who
has experience in prosecution work.
In fact since 1966 the Attorney Generalof Indonesia generally has come from themilitary circle, and only recently in 1990
and for the first time, the Attorney Generalcame from the Prosecution Department
itself.
III. PROSECUTION PRIOR TO THE
ENACTMENT OF THE NATIONAL
CRIMINAL PROCEDURE CODEThe National Criminal Procedure Codecame into force on 31 December 1981 andbefore this Criminal Procedure Codeexisted, the legacy of the Dutch Criminal
Procedure Code was in force.
Ta k i n g i n t o a c c o u n t i t s h i s t o r yoriginating from the legal product of thecolonial Dutch, it is understandable that it
contains numerous rules to protect thepower of the Dutch and too little opportunity
was given to the accused to seek justice.
In other words, in this penal code,human rights, i.e., the accused’s, were notaccorded with the necessary guarantee.
There was a dearth of protection for theaccused in respect of remand and legal
advice.
The accused might be remanded for along and unlimited period of time eventhough every 30 days it ought to beextended. Also there was no obligation thatduring questioning the accused could beaccompanied by a legal advisor.
At that time, the prosecution had an
extensive power because in law they could
conduct further investigation on all
matters apart from investigation
pertaining to criminal offenses economic innature, corruption and subversion (political71

RESOURCE MATERIAL SERIES No. 53
offence). The prosecutor also had the power
to coordinate the investigation machinerycomprising the police investigator andcivilian investigator from the government
sector.7 In coordinating said investigation
machinery, the prosecutor could provide
supervisory instructions or request that thecase be surrendered to the prosecution. Asa matter of fact, the prosecutor, being theperson who will appear in court, should
know about or complement the facts
required to prove the case. By directly
giving instructions or conducting
investigation himself, the case could be
disposed of more expeditiously.
Other than being speedier, any setback
or errors regarding its legal substancecould also be avoided. However, looking at
the other perspective, this system also had
weaknesses because of the overlapping of
powers as both the police and theprosecutor have similar powers, making it
highly possible that an accused person
could be investigated by the police and theprosecutor. There was no explicitness interms of criminal action, as the prosecutor
could investigate any matters.
This system although has its
advantages, certainly also has its
weaknesses.
A. Religious SectsAs regards the power of the prosecution,
apart from conducting investigation andfurther investigation or prosecution, it also
carries out supervision and takes action
against or dissolves the religious sects that
may endanger the community and nation.
According to the law, there are fivereligions recognized in Indonesia, namely,
Islam, Protestant Chistian, Catholic
Christian, Buddhism and Hinduism. Apartfrom the foregoing, there are religious sects
which do not fall within the import ofreligion originating from ancestral tradition
7

Section 2 of Law No. 15/1961 regarding the main
laws of prosecution.

72

and Indonesian culture. In practice, thistrend of belief often runs counter with thereligion recognized by the government, thus
causing many incidents of riots since theproblems between the religion and thisbelief are very sensitive. The prosecution
is duty bound to prevent the confrontation
by doing lawful surveillance or dispersing
said religious sects.
In order to segregate the religions
recognized by the Government from thecommunity’s religious sects, the Indonesian
Government has taken a different
approach.
The supervision of religions recognizedby the government is entrusted to the
Religious Minister, while the supervisionof the religious sects is carried out by the
Minister of Education and Culture.
According to the law, the police also has
the power to conduct supervision on
religious sects, but any supervision or
action by the police must be focussed on areligious sect which is nationwide in scale
and poses danger to the solidarity of thenation.
B. Economic Crime and Corruption
In 1960, there were many political flareups in Indonesia. To address this problem,
Law No. 5 of 1959 confers power to the
Attorney General in the name of the
President to give orders directly to thepolice force, as well as the power to order
preventive detention up to a maximum
period of one year without extension
against criminal offenders who commit
offenses economic in nature, corruption andthreaten the security of the nation by
preventing the implementation of thegovernment’s programme. Said power is
extraordinary because prior to this, it was
non-existent. (Bear in mind that the powerhas set aside the hierarchy applied in thepolice organization.)
The condition also deviated from theprocedure code which only gives power tothe prosecutor to effect remand for a

107TH INTERNATIONAL TRAINING COURSE
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maximum period of 30 days with anextension of 30 days after obtaining theapproval of Head of Court. The
government is of the opinion that the periodcaused the commission of too muchcorruption, resulting in financial loss to thestate and there is no special legal provision
to curb it. Since the condition was sopressing, a legal provision was regulated
but only as a temporary measure until suchtime when a permanent legislative
provision could be formulated to prevent
corruption.
After it was enforced for about two years,
a satisfactory result was achieved.
However, since it is urgent in nature andspecifically meant for the prevention ofcorruption, it must be replaced bypermanent laws of corruption.8
The Corruption Law gives power to theprosecutors with the liberty to conduct
investigation into corrupt acts as follows:(1) Any person suspected of having
commited a corrupt act shall be
required to give evidence of assets
and properties of his spouse andchildren as well as the assets of thecompany he manages.
(2) Any person questioned as a witness
must give a statement.
(3) The right to refuse being a witness(right of refusal) is only given to
religious officers and doctors.
(4) The prosecutor can request for all
documents deemed necessary be
produced before him for his
knowledge.
(5) The prosecutor has the right to open,
examine and seize the letters sent bypost, telegram or telephone, which hesuspects to be related to a case ofcorruption that he is investigating.

8

Law No. 3 of 1971 regarding the Prevention of
Corruption, Republic of Indonesia Government
Gazette No. 39 of 1971.

(6) The prosecutor can at all times enter
the premises that he deems fit tocarry out his duty. If the occupierrefuses, he must be accompanied by
two witnesses.
In order to speed up investigation andprosecution in the case of corruption, there
are abiding conditions, namely:(1) The corruption case must first be
investigated and then prosecuted.
(2) Within three months after theaccused is remanded, his case must
be referred to the court.
(3) Within six months after the accusedis remanded, his case must have been
examined by a judge.
C. Threatening National Security
Apart from the power of the prosecutor
to handle corruption cases, there is also a
preventive power to place those who havethe inclination to threaten the security of
the nation in a certain district so that they
can not carry out their activities that could
endanger the interest of the nation.
This power was once applied on theleaders of the Indonesian Communist
Party. The people who supported therevolution were sent to Pulau Burn, buthave since been released.
Other than that, the prosecution also has
been vested with the power to carry out
investigation on those who commit offensesof subversion.
Even though the police also has thepower to carry out investigation onsubversion offenses, the majority of thesubversion cases put to trial were the resultof the investigation done by prosecutors.
The subversion law for the past 20 years
has created controversies (conflict of
opinion). The Government of Indonesia isof the opinion that the Anti-Subversion
Law 9 is still relevant to prevent any
9

Law No. 11/Pnps 1963 regarding the Prevention ofSubversion Activities, Government Gazette No. 23
of 1963.

73

RESOURCE MATERIAL SERIES No. 53
potential revolution attempts with theintention of alienating themselves from a
united Indonesia or to topple theGovernment of Indonesia for another party.
Those who wanted this law to beabolished are lawyers, human rights
activists and members of non-governmentalorganizations. They are of the opinion that
the Subversion Law is a tool to suppress
the groups who do not agree with or often
criticize the government policies.
The Indonesian Subversion Law iscontrary to human rights because in
essence the element to be controlled andtried is the opinion of a person and not theact he is carrying out. Every person isentitled to his opinion and this isuniversally recognized.10 Each time during
the court session of a case concerning
subversion, all legal advisors in their
opening statements would without
hesitation raise objections that theexistence of the Anti-Subversion Law isactually illegal as it is not consistent withthe basic freedom that has become one ofthe principles in the Constitution ofIndonesia. The formulation of theSubversion Law is not concrete andambiguous, thus making it open to abuse.
Since it is too abstract, there is a possibility
that its application will go beyond thedimension entrusted by the legislators.
As regards the difference of opinion, it
is generally said that the court has decided
that the Anti-Subversion Law is de facto
legal as law, which is currently in force andhas not been abolished by the House ofRepresentatives. As such all legal advisors
and human rights activists adopt reasons
which are material (substantial) in nature
while the prosecution and the courts adopt
reasons which are official in nature in orderto declare that the Indonesian AntiSubversion Law is still in force.
10 The Universal Declaration of Human Rights,

Proclaimed by the United Nation on 10 December
1948.

74

A subversive act includes any of thefollowing:(1) Toppling, damaging or undermining
the authority of the lawful
government or state apparatus,(2) spreading widespread hostility or
creating enmity, division, conflict,disturbance, turmoil, unrest among
the people or community or between
Indonesia and a friendly country,(3) disturbing, impeding or disorganizing
the industry, distribution, trade,cooperatives or transport run by thegovernment,(4) indulging in activities sympathizing
with the enemies of Indonesia or acountry which is not friendly withIndonesia,(5) damaging or destroying buildingsthat function for the benefit of the
public,(6) carrying out spying activities, and(7) committing sabotage.
The power of the prosecutor as aninvestigator handling subversion offenses
is much wider than the power as stipulatedby the law in general.
An investigating prosecutor under the
Anti-Subversion Law may enter a placeand search premises that are believed tobe connected with subversion activities.
According to general procedure, such power
can only be exercised against theperpetrator apprehended at the time ofcommitting the offence.
In investigating subversion cases, aprosecutor has the power to remand asuspect up to a period of one year without
having to apply for extension from a judge.
Apart from the substance or theformulation of the subversion offence whichis extensive in nature, the process ofhearing should be expedited. After the casebundle has been received by the court fromthe prosecution, the case must be heard
within 30 days.

107TH INTERNATIONAL TRAINING COURSE
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All judges only have 30 days to study thecase bundle and the case exhibits. If thejudge decides on acquittal, then theprosecutor can file an appeal. A subversion
case can still be heard and decided by the
court even though the accused is absent or
cannot be brought to appear before thecourt (in absentia).
D. Other
Other powers of the prosecutor also
include investigation on members of theHouse of Representatives11, Governor12 andJustice of the Supreme Court13.
Any investigation on a member of theHouse of Representatives must first havethe approval of the President. After that
the Attorney General will issue a warrant.
The investigation may be carried out by theprosecutors or the police.
The procedure of investigation on a
Justice of the Supreme Court is similar to
the investigation of a member of the Houseof Representatives. In respect of theGovernor, only the approval of the
President is needed without having to wait
for the warrant from the Attorney General.
However, the outcome of the investigationmust be reported to the Attorney General.
The procedure of obtaining the approvalof the President and a warrant by the
Attorney General shall be dispensed with
if a member of the House of theRepresentatives, a Justice of the Supreme
Court or a Governor:(1) is arrested in the act of committing
an offence,
11 Law No. 13 of 1970 regarding Procedure of Police

Action against Member/Leader of People’s
Consultative Assembly and the House ofRepresentatives, Government Gazette No. 73 of
1970.
12 Law No. 5 of 1974 regarding Administration Law
at District Level, Government Gazette No. 38 of
1974.
13 Law No. 14 of 1985 regarding Supreme Court,
Government Gazette No. 73 of 1985.

(2) commits offenses punishhable bydeath based on preliminary proof, or(3) commits offenses against the securityof the nation.
IV. THE POWER OFPROSECUTORS IN THE
EXECUTION OF A JUDGE’S
DECISION
A decision of the court always involves
two matters, either the conviction or
acquittal of the accused and adetermination as to the status of the case
exhibits.
In respect of the status of the case
exhibits, there are three possibilities,
namely, return them to the witness/accused, forfeiture to the state (to be
auctioned/derive benefit therefrom) andseizure for destruction.
Executing the decision of the court,
whether the person or the case exhibits,
shall be the duty of the prosecutor. In
executing imprisonment sentence against
a person who is newly convicted by the
court, the prosecutor shall take theprisoner to the prison/correctional service
officer.
In regards to case exhibits, theprosecutor is obliged to return them to thewitness or the accused and if the case
exhibits are to be auctioned or destroyed,
the prosecutor is obliged to carry it out.
In executing the decision of the court,
the prosecutor is obliged to prepare a
Summary of Report.
What about if the case involves a death
sentence? Capital punishment is still being
carried out in Indonesian, but its
application is very rare and very selective.
A death sentence is generally carried out
after the case has gone through a process
in which decisions have been made by the
Court of First Instance, the Appellate
Court, the Supreme Court and thePresident, who rejects the clemency
petition.

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RESOURCE MATERIAL SERIES No. 53
In fact there are also cases which hadgone through a revisionary process by theSupreme Court. In the clemency petition
to the President, the legal advisor and theaccused himself will submit several points
for consideration, and the Attorney Generaland the Minister of Justice will present
their opinions.
That is why generally a death sentence
is carried out five years after the accusedhas been convicted of an offence.
There are several conditions in executing
the death sentence in Indonesia:14(1) Death sentence is carried out in the
Jurisdiction of the District Court thatpasses the sentence unless otherwise
decided by the Minister of Justice.
(2) The time and place of the death
sentence will be determined by the
Head of Provincial Police after
cousulting the opinion of the local
Chief Public Prosecutor.
(3) The Head of Provincial Police shallprepare the personnel, equipment
and other requirements.
(4) The prosecutor shall be informed ofthe execution of the death sentence
three days in advance.
(5) If the condemned prisoner wishes tosay something, his statement/
instruction must be put down in
writing by the prosecutor.
(6) The defence counsel of the accused
person may attend the execution of
the death sentence.
(7) The death sentence is not carried out
in public and will be carried out in as
simple a manner as possible.
(8) To carry out the sencence, the Headof Provincial Police will form a teamof marksmen comprising a Sergeant
and twelve Corporals led by a Senior
Officer.
14 Law No. 2/Pnps 1964 regarding the procedure of

executing the death penalty meted out by the court
in a civilian and military trial, Government GazetteNo. 28 of 1964.

76(9) The team of marksmen will not be
using their own weapons and they
will be under the charge of theprosecutor.
(10) The accused shall be brought to theplace of execution accompanied by aspiritual leader and his eyes will becovered with a piece of cloth.
(11) The distance between the accusedand the team of marksmen is 5 to 10
meters and the prosecutor will givethe command for the execution.
(12) The death of the accused will be
confirmed by a doctor.
V. THE STATUS OF PROSECUTORSAFTER THE ENFORCEMENT OF
THE NATIONAL CRIMINALPROCEDURE CODE
In 1981, Indonesia adopted its own
National Criminal Procedure Code to
replace the Criminal Procedure Code left
behind by the Colonial Dutch. We havealready stated that the Dutch Criminal
Procedure Code provided little protection
for accused persons. Below are the several
basic aspects found in the National
Criminal Procedure Code.
A. Presumption of Innocence
Based on the presumption of innocence,the suspect should be given his rights, suchas expedited questioning and be informedof his alleged act in the language
understood by him, the right to prepare his
defence, the right to an interpreter, getting
legal aid, the right to visits by family
members, and the right not to be burdenedby the onus of proof, because the onus of
proof lies in the public prosecutor.
B. Legal Aid at Every Stage ofQuestioning
The suspect is entitled to legal aid fromthe time he is arrested or remanded andquestioned.

107TH INTERNATIONAL TRAINING COURSE
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It is the right of the person involved in acase to have a legal advisor and to keep incontact with his legal advisor.
The legal relationship should be
unimpeded, which means the suspect can
put forward everything in preparation of
his defence without being supervised byany officer. If there is evidence that thelegal advisor abuses his right in his
conversation with the suspect, then at thatstage of examination the officer can give areminder.
If said reminder is ignored, then said
relationship will be limited, i.e., therelationship will be kept within sight but
not within hearing. In the case the suspectcommits an offence that carries a death
sentence or an offence punishable with 15
years’ imprisonment or more and he cannot
afford his own legal advisor, then the officer
handling his case shall provide him withfree legal aid.
C. Limited Period of Arrest/Remand
In order to remand a person, there must
be strong suspicion based on evidence thata person has committed an offence
punishable with 5 years’ imprisonment or
more. Other reasons include the tendencyof the suspect to abscond, hide or destroy
case exhibits or repeat the criminal act. If
the suspect thinks that the remand/arrest
is illegal, he can submit an application fora pre-trial review.
The investigator may obtain a remand
period of 20 days and it can be extended to
40 days by the public prosecutor.
The public prosecutor may obtain aremand for 20 days and be extended for 30
days. A judge may effect remand for 30days and extend it twice for 30 days (60days). The High Court (appellate court)
may effect remand for a period similar to
the District Court (court of first instance);
whereas the Supreme Court may effectremand for 50 days and the period can beextended twice for 30 days (60 days).

D. Compensation and Rehabilitation
The suspect is entitled to claim
compensation for wrongful arrest anddetention. A claim for compensation is anapplication to obtain pecuniarycompensation, while rehabilitation is aclaim to obtain the right or status lost due
to the questioning, arrest or remand.
The fundamental change in the National
Criminal Procedure Code concerns thesystem which is now known as the“Integrated Criminal Justice System”.
This means that the law enforcers,
especially the police and prosecutors, aredistinctly defined in terms of their function,
but between them there is a functional
coordination relationship. They are clearly
designated in that the police acts as theinvestigator and the prosecutor acts as apublic prosecutor.
However, these two authorities are still
mutually connected because:(1) The investigator shall inform thepublic prosecutor about thecommencement of an investigation.
(2) The investigator shall hand over thecase bundle to an public prosecutor.
(3) The public prosecutor shall grant
extension of remand to theinvestigator.
(4) The public prosecutor shall give
instruction to the investigator, andthe investigator shall complete thecase bundle according to the
instruction of the public prosecutor.
(5) I f t h e i n v e s t i g a t o r s t o p sinvestigation, he shall inform thepublic prosecutor; likewise if the
public prosecutor stops prosecution
he shall inform the investigator.
VI. PERFECTING THE NATIONAL
CRIMINAL PROCEDURE CODE
Lately the desire to refine the National
Criminal Procedure Code has come tosurface even though said code is only 15
years old.

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It is evident that development and new
demands are rapidly appearing in
numbers, including new demands forjustice.
When the National Criminal Procedure
Code was formulated to replace the colonial
Dutch Criminal Procedure Code, itmanaged to accommodate the growing
demands presently existing so much so that
the National Criminal Procedure Code canbe regarded as seeped in national spirit.
H o w e v e r, d u e t o v e r y r a p i ddevelopments in every sector of life in thesociety, more new demands keep on
appearing, especially in respect of the
Criminal Procedure Code. So it isimperative that these demands areaccommodated in our legal system.
The new demands must be fitted in ourlegal system because at any point in timeand at any place, the law shall serve as avehicle towards achieving an assured
dream, order and justice for the society.
A concept to streamline the Criminal
Procedure Code without changing its
existing fundamental concept is meant tosolve the legal problems that arise from thedevelopment of the society; to improve
efficiency and effectiveness; and to prevent
excesses in law enforcement.
In other words, the conception of refining
the Criminal Procedure Code is to optimize
the Code itself.
The National Criminal Procedure Codewas promulgated on 31 December 1981. It
is a national legal product containing
improvements devised to protect humanrights in the process of the criminal law.
However, be that as it may, over a periodof time, it is felt that the Criminal
Procedure Code has its weaknesses andambiguities in terms of its legal
formulation, which have resulted indifferent interpretations and polemics
among law enforcers, practitioners andacademics in connection with several
provisions set out in the Criminal
Procedure Code.

78

More of these problems have cropped up
lately as more and more statements areissued through the mass media by legal
practitioners, academics and observers.
The statements mainly seek a change andrefinement of the Criminal Procedure Codeto suit the developments of the society,which are becoming more progressive andcomplex. The ambiguity in the formulationof the legal provisions has given rise todifferences in interpretations among thelaw enforcers, until the process of criminal
justice as a system does not function as
expected by the seekers of justice.
A. Recognition and Protection of
Basic Rights
A constitutional state has a special
feature, i.e., recognition and protection ofbasic rights which cannot be violated byanyone. One of the basic rights is equal
status for everyone under the law without
any discrimination against any groupbased on race, religion, sex, social culture,
economic standing and others.
In a constitutional state like theRepublic of Indonesia where the Pancasila(Philosophy of State) serves as a stateideology, state foundation and source of alllegal sources, the protection andenforcement of human rights must be
maintained so that individual interests andthe public interest can remain in goodbalance. In discharging its duty, the state
is obliged to preserve the public interest,
whether all its citizens or an individual.15
Having regard to the said matter, thefundamental recognition and protection ofhuman rights should be implemented in
the criminal procedure without any bias
between the protection of the basic rights
of a suspect and protecting the interests ofthe public, including the victim.

15 Prof. Senoadji Oemar, LLM, Seminar Indonesia

Negara Hukum/Seminar on Constitutional Stateof Indonesia, May 1966, Jakarta, Indonesia.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
B. Protection for the Suspect/
AccusedProtection for the suspects has beenadequately provided in the Criminal
Procedure Code, even though in practicethere are excesses taking place in its
implementation, such as torture to obtaina confession from the suspect,manipulative interrogation, detention
without basis, and others. The Criminal
Procedure Code has made provisions forthe rights of the suspect/accused to get
immediate questioning. However, inpractice there are possibilities of thesuspect/accused not responding toquestions, or just remaining silent,
although actually the answers to questionsof the suspect in court are reflective of his/her rights to defend him/herself. If thesuspect/accused remains silent (notanswering) during questioning, that is seen
to show that he/she purposely does notwant to make use of his/her rights.
To avoid torture or manipulation, it isalso necessary to provide in the Criminal
Procedure Code the right to remain silent(not answering). It is also important toinclude the legal consequences forremaining silent, e.g., it is provided thatthe silence of the suspect/accused isindicative of his/her admission to having
commited the alleged offences.
With such provisions, it is hoped thatthe torture of suspects/accused byinterrogators can be avoided.
Not using the right to answer must also
be provided so that said problem cannot
invalidate the investigation report.
C. Protection for the Victim
In the Criminal Procedure Code,protection for the victim comes in term ofclaiming compensation against theoffender and the right to reject thetermination of investigation/prosecution
through pre-trial review. The following
aspects of victims to seek justice have yet
to be provided:• Complaint/report not immediately
settled or acted upon by theinvestigator, and• Dissatisfied with the prosecution
carried out by the public prosecutor.
However, the right of appeal is still not
being accorded to the victim because said
right is against the system of the Criminal
Procedure Code as the public prosecutor issaid to represent the public interest which
includes the victim’s interest.
D. Legal Aid
Obtaining legal aid is the basic right ofthe suspect/accused so that he can defend
himself against the alleged charge he isfacing.
The Criminal Procedure Code has
expressly provided that legal aid services
can be accorded to a suspect/accused.
However, there is no provision in respectof a suspect/accused who does not want use
the services of legal aid (right to legal
advisor). The suspect/accused can notlatter adopt this as a ground in an apparent
attempt to nullify the process ofinvestigation and prosecution.
Under the circumstances, it has been
decided that if it is clear that the suspect/accused does not wish to use the right oflegal aid or legal advisor, then this cannot
be a ground for the judge to invalidate theprocess of investigation. It is thenimportant to provide for said legal aid
solely for the suspect/accused in theinterest of his/her defence counsel. As such,the legal advisor is not required to be by
the witness’s side during questioning, since
the witness does not require any for his/her defence, but he/she has the obligation
to give a true statement of he/she sees,hears and knows.

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E. The Principle of a Free andResponsible Judiciary
1. Non-absolute Principle
The principle of a free judicature meansthat the power of the judiciary is free of
any interference from another state power
or free of any extraneous judicial influence.
However, said freedom is not absolute innature because the duty of the court or
judge is to enforce the law and justice.
A free judiciary upholds the
responsibility of creating legal certainties
based on truth and justice. If the judge
can not find a written law, he is required
to delve into the unwritten law in order toarrive at a legal decision as a prudent
person who is fully responsible towards the
Almighty God, himself, society, fellow
citizens and the nation.
2. Open Principle
This principle, apart from reflecting theprinciple of democracy, does reflect the
principle of freedom and impartiality tofacilitate the existence of social control. If
there is an exception by having a hearing
in camera for a certain case, there mustalso be a guarantee that the trial is still
being conducted honestly.
3. Principle of Giving Preference
to Justice and the Truth
In line with the principle of a free andresponsible judiciary, therefore, legal
consideration for the suspect/accused,victim and society must be given priority
over legal certainties because not all court
decisions containing legal certainties
produce justice.
F. Principle of Legality
The principle of legality means that noact shall be liable to penal action unless it
is based on the provisions of the law inforce. In the Criminal Procedure Code, thislegality principle is present in a situation
where the public prosecutor shall be

80“obliged” to submit the case bundle to court
after all requirements laid down by the law
have been fulfilled.
An exception to this legality principle(case not referred to court) is confined to
the Attorney General and it is limited
because of public interest. In other words,
this legality principle can only be exceptedby the principle of opportunity.
Based on the legality principle, there isan obligation that every case referred tothe court must have been asessed withenough evidence and that all therequirements have been fulfilled.
The principle behind referring caseswith enough evidence and which havefulfilled the requirements shows theacknowledgement of human rights in that
there is equal status for everyone under
the law.
For that reason, the provision to allow
the termination of investigation orprosecution must be prevented, regardlessof whether the case is minor or serious.
If there is an exception, there must be avery strict limitation known as thep r i n c i p l e o f o p p o r t u n i t y, i . e . , t h etermination of the investigation orprosecution of a case which has fulfilled therequirements of proof can only be effectedby the Attorney General on the ground oflegal interest.
The legality principle pertaining toremand must reflect the spirit of theconstitutional state and for that purposethe following shall be provided:• The accused upon being detained has
the right to be informed immediatelyof the alleged offence for which he ischarged, and• The accused shall have the right tocontact his family members and legal
advisor.

107TH INTERNATIONAL TRAINING COURSE
VISITING EXPERTS’ PAPERS
G. The Criminal Procedure Code Is
Akin to the Principle ofExpeditious, Simple andAffordable Justice
1. The National Criminal Procedure
Code does not provide for any frame of time
regarding the bundle of investigation
papers of the civilian investigator to be in
the hand of the investigator of the police
for it to be handed to the public prosecutor.
So, in terms of principle of benefit, not only
does it prolong the bureaucratic tape but
runs counter to the principle of expeditious,
simple and affordable justice.
2. The Criminal Procedure Code does
specify the frame of time by which theinvestigator should complete his
investigation and what are the legal
sanctions if he does not complete or is latein completing his investigation.
3. The principle of expeditious, simple
and affordable justice must not only beapplied at the prosecution/hearing stage,
but also at the investigation stage. Thus,
if the Criminal Procedure Code is to be
streamlined in the future, this principle
must be concretely impelemented.
4. In practice, it is shown that thecriminal justice system does not cover theconcept of supervision and administration.
5. The accountability concept from theoutcome of investigation conducted by the
public prosecutor forms a part of theintegrated criminal justice system.16 In
implementing the principle of integrated
criminal justice system, the outcome ofinvestigation must be justified before an
open court.
The public prosecutor shall be required
to make justification because he is the one
who appears in court as a public prosecutor
and not the investigator.
16 Sujata Antonius, Master of Law, The Wisdom of

Law Application and Enforcement Programme inthe 7th Five-Year Development Plan, Law
Development Workshop Programme 1999-2004, 2026 November 1996, Jakarta, Indonesia.

The prosecutor shall be required to prove
the act allegedly committed by the accused.
Consequences arising thereof are as
follows:• The investigator shall abide by the
instruction of the public prosecutor.
• In cases where the investigator isunable to carry out the instruction of
the public prosecutor, then it isnecessary to introduce measures toextend the power for futherinvestigation by providing adequate
time not only to question witnesses
but also to question the suspect andto gather/seize case exhibits.
VII. INTERNATIONALGUIDELINES AND INDONESIAJUDICIAL DOCTRINE
As guidelines to all Indonesian
prosecutors in the course of their duties,
the Indonesian Prosecution espouses a
Judicial Doctrine known as Tri Krama
Adhyaksa (The Three Principles ofConduct);17 specifically, integrity, maturity
and wisdom.
• Integrity: Loyalty originating fromsense of sincerity towards the
Almighty God, one’s own self,family and all mankind.
• Maturity: Perfection in discharging
duties coupled with the mainelement of sense of
responsibility towards the
Almighty God, family andamong mankind.
• Wisdom: Wisdom in words and deeds
especially in discharging
one’s duties and power.
In upholding said Judicial Doctrine, allprosecutors in the course of their duties
must be aware that they form an
inseparable part of the other prosecutors.
17 Judiciary Doctrine, Annexure to the Decree of the

Attorney General of the Republic of Indonesia
Number: KEP-030/3/1988 dated 23 March 1988.

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RESOURCE MATERIAL SERIES No. 53
They are interrelated with one another,
representing one and the other, as well as
reminding one another of their conduct andactions.
Every member of the prosecution must
always upgrade his knowledge andcapabilities. In addition, every member ofthe prosecution must propagate his
initiative and cooperate with other law
enforcement agencies.
When coming into contact with membersof the public especially the seekers ofjustice, prosecutors must treat all men as
the creation of God who have the sameright and responsibility based on legal
values, religion, custom, and courtesy
honoured by the people of Indonesia.18
The Indonesian Judicial Doctrine iscompatible with the international
standards indicated in the United Nations
Guidelines on the Role of Prosecutors.19
Among the important details adopted
from the United Nations standard forprosecutors are the required qualifications
to become a prosecutor, the status and job
conditions of prosecutors, the freedom toexpress opinions and the right ofassociation, the role of the prosecutors in
the criminal process, prosecutor ’s
discretion, prosecutor’s relationship withother authorities and the process ofinvestigation against a prosecutor who
violates the rules.
(1) Those chosen to be prosecutors must
be honest and efficient by getting theproper training and requirements.
(2) A l l p r o s e c u t o r s m u s t a l w a y smaintain the honour and status of
their profession.

18 Prakoso Djoko, LLM, The Existence of Prosecutor

in the Midst of Society, Ghalia Indonesia, East
Jakarta, 1985.
19 Adopted by the Eight United Nations Congress on
the Prevention of Crime and the Treatment of
Offenders, 1990.

82(3) The state must ensure that allprosecutors are able to function
profesionally without unnecessary
intimidation, impediment andintervention.
(4) All prosecutors have the right andfreedom to voice out their opinions
and put forth their unified confidence.
(5) Prosecutors are at liberty to form andjoin professional assemblies or otherorganizations which champion theirinterests, upgrade the profesional
quality and protect their status.
(6) All prosecutors must play active rolesin the criminal process by carrying out
prosecution and in conducting
investigation. They must also ensure
the legality of said investigation, oversee
the execution of the court’s decision andcarry out other functions expected of aprotector of public interest.
(7) All prosecutors must perform theirduties fairly, consistently and
expeditiously and defend basic
human rights.
(8) In performing their duties, allprosecutors cannot be partial and must
avoid political, social, religious, racialand other kinds of discriminations.
(9) In protecting the public interest, theymust be objective and give due regard
to the suspects and all the victims.
(10) They must not commence andproceed with prosecution if there isno basis to frame the charge.
(11) All prosecutors are duly requested to
be aware of matters concerning theprosecution of their fellow colleagues,
corruptions and power abuse.
(12) In setting aside cases, prosecutor
must fully appreciate the rights of thesuspects and also the victims.
(13) Any complaints against prosecutors
alleging deviations in profesional
standard must be dealt withexpeditiously and fairly. The
decisions must be subject toindependent review.