Article 77a of the Indonesian Criminal Procedure Code (Kitab Undang Undang Hukum Acara Pidana / KUHAP) limits the scope of pretrial hearings to the validity of an arrest, incarceration, termination of an investigation, and termination of a prosecution. In recent years, the scope of pretrial hearings has been expanded by way of court decisions, which culminated in a judicial review by the Constitutional Court in April 2015.

These recent developments have confirmed the expansion of pretrial hearings to also include determination of status as suspect, search, and confiscation. The move towards expansion of pretrial hearings in Indonesia started in November 2012 in a case involving the General Manager of PT. Chevron Pacific Indonesia, Bachtiar Abdul Fattah. Fattah was successful in his pretrial application challenging his status as suspect in a corruption case, although the Attorney General’s Office later decided to proceed with the case. The issue resurfaced in January this year, where Police Commissioner General Budi Gunawan also brought to question his status as suspect in a corruption case. The case captured the attention of the whole nation as Budi Gunawan was then the sole candidate for the Indonesian Chief of Police. In that case, the South Jakarta District Court accepted the petition that a suspect status can and should be questioned and heard at a pretrial hearing. As precedents are not legally binding in Indonesia, there were still uncertainties over such expansion of the scope of pretrial hearings. These were laid to rest by the Constitutional Court in April 2015, in a judicial review of Article 77a of the KUHAP brought forward on behalf of Bachtiar Abdul Fattah, the abovementioned General Manager of PT Chevron Pacific Indonesia.

The Constitutional Court confirmed that Article 77a of the KUHAP is intended to afford protection of basic human rights for individuals facing investigation and prosecution; and noted that the protection was stated in the provision in a limitative manner. The Court recognized that status as suspect declared during an investigation process may be a result of arbitrary or abuse of power by investigators and therefore capable of depriving individuals of basic human rights. The Constitutional Court declared the original wording of Article 77a of the KUHAP as unconstitutional as the limitation it imposes results in failure to protect basic human rights during the investigation and prosecution processes. Article 77a of the KUHAP was then amended so that the scope of pretrial hearings is expanded to also include suspect status, search and confiscation.