KUHP and KUHAP lawsuits begin rolling at the Constitutional Court

Screenshot - The first trial of Case Number 267/PUU-XXIII/2025 regarding the test of the new Criminal Code and Criminal Procedure Code in the Plenary Session Room of the Constitutional Court, Jakarta, Friday (9/1/2026). (ANTARA/Fath Putra Mulya)

JAKARTA - The application for a test of the substance of Law Number 1 of 2023 concerning the Criminal Code and Law Number 20 of 2025 concerning the Code of Criminal Procedure has begun to rotate at the Constitutional Court (MK).

The Constitutional Court held a preliminary examination hearing for Case Number 267/PUU-XXIII/2025 on Friday, January 9. In this case, two private employees named Lina and Sandra Paramita questioned a number of articles in the new Criminal Code and Criminal Procedure Code at once.

In the panel session chaired by Chief Justice Suhartoyo in the MK Plenary Session Room, Jakarta, the applicants and their lawyers explained the points to be tested, namely Article 488 of the Criminal Code and Article 16 paragraph (1), Article 19 paragraph (1), Article 22 paragraph (1), and Article 23 paragraph (5) of the Criminal Procedure Code.

Lina said that she filed this application because she suffered a real constitutional loss. He admitted that he was criminalized by his former boss.

"I have worked for about four years and always carried out the tasks ordered with good faith," said Lina while holding back tears. Because he could not hold back his tears, Lina's lawyer, Zico Simanjuntak, continued to give testimony, quoted by Antara.

Zico explained that his two clients, who are finance staff at two different companies in Jakarta, were accused of embezzling funds, were dismissed unilaterally, and were reported to the West Jakarta Metro Police.

According to Zico, his client has never been properly questioned, interviewed, or given a fair opportunity to provide an explanation that they are innocent. However, the case was still raised to the investigation stage.

"The applicant has never acted on his own initiative. The applicant does not have the power to use funds, let alone embezzle company money ... The applicant has never been interviewed by the police, but the case has risen to the level of investigation. That is what is the legal standing of the applicant," he said.

On this basis, the applicants tested a number of articles to the Court. One of the articles tested was Article 488 of the Criminal Code which regulates the crime of embezzlement in employment relationships which is punishable by imprisonment for a maximum of five years.

The applicants assessed that Article 488 of the Criminal Code only contains the formulation of the offense and the threat of a criminal offense, but is not accompanied by a subsequent paragraph that regulates special exceptions if the act is carried out based on the order of a legitimate superior.

The other applicant's lawyer, Leon Maulana, said that in the concept of a hierarchical and asymmetrical labor relationship, the absence of legal protection in the article in question could create a fundamental imbalance.

"Subordinates must conduct the investigation and trial process only to prove that they acted on the order of the superior with good faith," he said.

In addition, Leo said that the provisions of Article 16 paragraph (1) of the Criminal Procedure Code which regulates the methods of investigation still contain an imbalance that violates the principle of equality before the law.

He said that the article does not clearly regulate the subject of the interview in the investigation stage. This condition is considered to result in an imbalance between the reporter and the reported so that the investigation can potentially be carried out unilaterally.

"The report has the potential to immediately become the basis for the increase of the case to the investigation stage and the reported party loses the initial opportunity to provide clarification and provide information that relieves," he said.

Therefore, the applicants asked the Constitutional Court to declare Article 488 of the Criminal Code supplemented by an additional provision which reads "Any person who commits an act as referred to in paragraph (1) shall not be punished, as long as the act is carried out based on a valid official order from an authorized superior."

Meanwhile, Article 16 paragraph (1) of the Criminal Procedure Code is requested to be supplemented with an additional paragraph, namely "In cases where the investigation has indicated that a party is suspected of being the reported party, the investigator must first clarify the reported party before the case is upgraded to the investigation stage."

This matter was recorded with the registration number 267/PUU-XXIII/2025. The Court gave two weeks to the applicants to complete their application files.