The expression of Susno Duadji Attorneys after the Decision pronouncement hearing.
Jakarta, MKOnline – Judicial review on Law Number 13 Year 2006 concerning Witness and Victim Protection filed by the former Head of Criminal Investigation Unit of the Indonesian National Police, Commissioner General Susno Duadji was rejected in its entirety by the Constitutional Court, as stated in the injunction of decision of case number 42/PUU-VIII/2010.
“Rejecting the Petition of the Petitioner in its entirety,” said the Chief Justice of the Constitutional Court, Moh. Mahfud MD when reading the injunction of decision in the plenary hearing which was open for public, Friday (24/9), at the plenary court room of the Constitutional Court of the Republic of Indonesia.
Previously, the Petitioner stated that Article 10 paragraph (2) of Law on Witness and Victim Protection is contradictory to the constitution as it has impaired his constitutional rights. The contradictions were particularly apparent in Article 27 Paragraph (1), Article 28D Paragraph (1), Article 28G and Article 28J Paragraph (2). Meanwhile, the Article petitioned reads “a witness who is also a suspect in the same case may not be released from the criminal charge if it is construed that his/her status as a suspect had been determined before the witness give testimony on such case”.
However, the Court has a different opinion on the aforementioned argument. The Court stated that the provision in Article 10 paragraph (2) of Act No. 13 Year 2006 can be clearly and expressly construed (expressis verbis), whereas the normative substance is to give a reward for the statement given by a witness who is also a suspect in disclosing a criminal act, by taking it into account in reducing his sentence.
Under the substantive provision, the Court added, the state through its legislative power must be deemed as not having disregarded the participation of the citizens’ who had contributed in the disclosure of a criminal act. The state gives a reward in the form of reduction of sentence.
“To what extent does such participation reduce the sentence imposed, it would be the discretion of the judge trying the suspect based on his/her contribution in disclosing a criminal act. The reward is a legal choice made by the state as a credit to a witness who is also a suspect, and it encourages public participation in disclosing criminal acts,” said one of the Constitutional Justices when reading the legal considerations.
In addition to the above, the Court was also of the opinion that in accordance with the name of Law 13 Year 2006, namely Witness and Victim Protection as well as the title of the section: Protection and Rights of Witnesses and Victims, the substance of the norms of Article 10 which consists of three paragraphs must be construed as the provisions of law for protecting witnesses, victims and reporting parties, rather than protecting a witness who is a suspect in the same case or a reporting party who is not acting in good faith.
“Such reward given by the state to a witness who is also a suspect should be considered as equity as it contains a balance between the contribution in the disclosure of a crime and the reduction of sentence imposed. Therefore, it would be inappropriate to make a contrario interpretation that a witness who is also a suspect in the same case does not receive any protection from the law, thus receives nothing in return,” he added.
Furthermore, with regard to the argument that the above-mentioned Articles is contradictory to Article 28J paragraph (2) of the 1945 Constitution, the Court is of the opinion that the provision of Article 10 paragraph (2) of Act 13/2006 is in line with the spirit of the constitution. “Such provision is not a restriction. Instead, it is concerned with a common issue which is based on equity and serves as a principle adhered to in the criminal law system in Indonesia.” one of the Constitutional Justices explained.
In this decision, the Court also rejected the provisional petition of the Petitioner. The Court has three reasons, including among other things, that the Court is of the opinion that in Judicial Review, the decision of the Court merely reviews the abstract norms, rather than trying concrete cases such as investigation or prevention in criminal case against the Petitioner. Since the provisional petition of the Petitioner has entered into a concrete case, the Court was unable to grant such petition.
One of the Constitutional Justices, Hamdan Zoelva, has a dissenting opinion on the aforementioned decision. According to Hamdan, the Court should have issued a decision declaring Articles subject to judicial review to be conditionally constitutional.(Dodi)
Monday, September 27, 2010 | 13:03 WIB 196