Daftarsbmptn.com – In recent months, public and legal academic attention has increasingly focused on the phenomenon of the application of court oversight of coercive measures by law enforcement officials in Indonesia. This oversight is intended to ensure that every action, such as arrest, detention, or seizure, complies with legal procedures and does not abuse authority. However, some groups are concerned that this new approach has the potential to shift the function of pretrial proceedings and contribute to uncertainty in criminal law.
The pretrial institution itself is a judicial instrument long regulated by the Criminal Procedure Code (KUHAP). Historically, pretrial proceedings were established as a means of monitoring the use of coercive measures, such as arrest and detention, to ensure that the actions of investigators and prosecutors comply with the law and do not arbitrarily deprive suspects of their human rights.
However, recent developments in the implementation of the law in Indonesia indicate a push to strengthen the role of the courts in directly supervising coercive measures, including through judicial approval before certain actions are taken. This model is considered an effort to modernize the criminal justice system, placing judges in direct control of the actions of law enforcement officers to increase accountability. However, this step has not been without criticism.
Legal experts believe that direct oversight through court approval of coercive measures has the potential to blur the lines between pretrial proceedings and other oversight mechanisms. The primary task of pretrial proceedings is to provide legal oversight after coercive measures have been taken, not to serve as a means of pre-approval or to replace the role of investigators with judges in all coercive measures. When judicial oversight becomes a kind of initial filter on official actions, the role of pretrial proceedings, which is retrospective and serves as a safeguard of human rights, is at risk of shifting.
According to criminal law experts, this shift in function opens the door to legal uncertainty. When the court’s authority is expanded to approve or reject coercive measures before they are carried out, the boundaries between the inquiry, criminal investigation, and trial processes become unclear. This is suspected of slowing down the investigative process, creating administrative obstacles, and giving rise to differing interpretations across court jurisdictions. The gaps and multiple interpretations within the Criminal Procedure Code (KUHAP) itself have long been problematic, creating uncertainty, such as in the definition of the term preliminary evidence and the procedure for determining a suspect.
This issue has become increasingly relevant following the ratification of a major revision of the Criminal Procedure Code (KUHAP) in December 2025, which introduced Law Number 20 of 2025, which included several changes to the procedures for criminal proceedings. Several of these new provisions include articles that strengthen the requirement for court approval for certain actions, such as searches and seizures. While intended to strengthen human rights protection, this measure has also drawn criticism that this oversight mechanism could overlap with the traditional pretrial function, creating new complexities in criminal law enforcement practices.
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Many legal practitioners have expressed concern that uncertainty will increase if there is no clear roadmap regarding the division of roles between judges and investigators in regulating coercive measures. Without a clear definition, law enforcement officials could be caught in a dilemma between carrying out their duties and awaiting court approval, which could practically delay case handling. Conversely, judges who interfere too frequently in law enforcement operations could be seen as taking over the functions of investigators and prosecutors, which also violates the principle of separation of duties in the criminal justice system.
Pretrial cases filed to date demonstrate that, despite the oversight function being in place, many pretrial motions are not granted because the practice still relies on the judge’s interpretation of the legality of coercive measures. This reflects the continued relevance of the pretrial institution as a legal oversight tool, but also demonstrates that the process requires reform to be more effective and avoid being bogged down by bureaucracy or differing interpretations between courts.
In response to this challenge, several academics and civil society organizations have called for a revision of legal norms to ensure that the contents of the Criminal Procedure Code (KUHAP) and its derivative regulations are more responsive to the need for human rights protection without creating legal uncertainty that is detrimental to all parties. They emphasize that the need for legal certainty must remain a priority amidst efforts to strengthen oversight of coercive measures.