Constitutional Court: Arrest Prosecutors Must With The Attorney General's Permission Except For OTT

JAKARTA - The Constitutional Court (MK) has decided that the arrest of a prosecutor who is carrying out his duties and authorities must be based on the permission of the Attorney General, except in terms of a hand arrest operation (OTT) or suspected of committing a crime that is punishable by the death penalty.

In this case, the Constitutional Court granted part of the request for judicial review of Law Number 11 of 2021 concerning the Attorney General's Office of the Republic of Indonesia which was requested by activist Agus Setiawan and advocate Sulaiman.

"Granted the petitioner I and applicant II," said Chief Justice of the Constitutional Court Suhartoyo reading the verdict Number 15/PUU-XXIII/2025 in the Plenary Court Session Room, Jakarta, Thursday, October 16, reported by ANTARA.

The Constitutional Court stated that Article 8 paragraph (5) of the Prosecutor's Law is contrary to the 1945 Constitution of the Republic of Indonesia and does not have conditionally binding legal force as long as it does not mean it contains certain exceptions.

The exception referred to by the Court, namely being caught red-handed committing a criminal act; or based on sufficient preliminary evidence suspected of committing a crime that is threatened with the death penalty, criminal acts against state security, or special crimes.

The Constitutional Court gave a new meaning to Article 8 paragraph (5) of the Prosecutor's Law which originally reads, 'In carrying out its duties and authorities, summons, examinations, searches, arrests, and detentions of prosecutors can only be carried out with the permission of the Attorney General.'

If you refer to the norms of the article before the signing of the Constitutional Court, every arrest of the prosecutor, without exception, must first obtain the permission of the Attorney General.

In the legal consideration read out by Constitutional Justice Arsul Sani, the Court considered that legal protection for law enforcers or state administrators whose duties were related to judicial power was needed.

However, the Court considered that the norms of Article 8 paragraph (5) of the Prosecutor's Law were not in line with the spirit of equality of all people before the law, especially in the perspective of legal protection for fellow law enforcers.

According to the Court, exceptions to treatment should still be required with reasonable and measurable boundaries. Because, said Arsul, the absence of exceptions could hinder the law enforcement process and weaken the principle of equality before the law.

"So there is no other choice for the Court regarding the norms of Article 8 paragraph (5) of Law 11/2021 to be declared contrary to the 1945 Constitution of the Republic of Indonesia conditionally," he said.

In addition, in this decision, the Constitutional Court also granted the petitioner's argument regarding Article 35 paragraph (1) letter e. The article basically states that the Attorney General can submit legal technical considerations to the Supreme Court (MA) in the cassation examination.

According to the Constitutional Court, the article does not regulate strict restrictions or arrangements regarding what kind of technical considerations the Attorney General can give to the Supreme Court so that it has the potential to open up an intervention room in the decision-making process.

Therefore, the Court stated that Article 35 paragraph (1) letter e of the Prosecutor's Law and its explanation were against the constitution and did not have binding legal force. This means that the article is no longer valid.