Yusril Ihza Mahendra with his attorney when the trial decision of the Judicial Review of Act on Criminal Code to Article 1 paragraph (3) and Article 28D Paragraph (1) of the 1945 Constitution on Monday (8 / 8).

Constitutional Court (MK) reviewed the trial verdict in the case of Article 1 number 26 and number 27 in conjunction with Article 65 in conjunction with Article 116 paragraph (3) and paragraph (4) in conjunction with Article 184 paragraph (1) letter a legislation No. 8 of 1981 on Criminal Proceedings (Criminal Code) to Article 1 paragraph (3) and Article 28D Paragraph (1) of the 1945 Constitution on Monday (8 / 8). Petition filed by Yusril Ihza Mahendra decided by the Court granted in part.

"Decisions stated that in the Main Case: To grant the petition for the most part, "said Chief Justice of the Constitutional Court, Moh. Mahfud Md. Court read the verdict.

Still in the ruling of the Court, the Court stated Mahfud read that Article 1 number 26 and number 27; Article 65, Article 116 paragraph (3) and paragraph (4); and Article 184 paragraph (1) letter a of Act no. 8 of 1981 on Criminal Procedure Law is contradictory to the 1945. However, those articles deemed contrary to the 1945 all the witnesses in the sense of Article 1 number 26 and number 27; Article 65, Article 116 paragraph (3) and paragraph (4); Article 184 paragraph (1) letter a of Law Number 8 of 1981 on the Law of Criminal Procedure, is not meant to also include the phrase, "People who can provide information in the context of the investigation, prosecution, and justice is not a crime that he always heard him, he sees himself, and he experienced his own".

Court also stated in Article 1 number 26 and number 27; Article 65, Article 116 paragraph (3) and paragraph (4); and Article 184 paragraph (1) letter a of Law No. 8 of 1981 on Criminal Procedure Law has no binding legal force along a witness in the sense of Article 1 number 26 and number 27; Article 65, Article 116 paragraph (3) and paragraph (4); Article 184 paragraph (1) letter a of Law no. 8 of 1981 on the Law of Criminal Procedure is not interpreted also include in the sentence, "People who can provide information in the context of the investigation, prosecution and trial of an offense that is not always he heard him, he sees himself, and he experienced his own".

"Order the proper promulgation of this decision in the Official Gazette of the Republic of Indonesia as it should. Reject the petition for the addition and the rest. Hence the decision was in the Consultative Meeting of nine constitutional justices, "lid Mahfud.

Legal Considerations
Petitioner argues that understanding the witness previously provided for in the articles of the Criminal Procedure Code a quo harm Petitioner. Because the definition resulted in the Petitioner can not file a defense witnesses (a de charge) that did not hear, see and experience events that accused or indicted, or potential accused or charged to the applicant.

To Petitioners’ argument, the Court considers that it is essentially penal procedure contains norms that balance between the interests of individuals and the interests of the legal community and the state law. Court essentially argues that in criminal law, individuals and or communities to deal directly with the state. This relationship places the individual and / or the community in a weaker position. In this case, the criminal procedural law serves to limit the power of the state that carried out by investigators, investigators, prosecutors, and judges, in criminal proceedings against individuals and or communities, especially suspects and defendants involved in the process.

In addition, the Court also considers that a person’s rights remain attached to him even though he has been named as a suspect or defendant. Therefore, in a state of law, criminal procedure as a tool is positioned so that the implementation is run in a fair legal process (due process of law) for the sake of respect for human rights.

Regarding the notion of witnesses, arrangement or understanding Court believes witnesses in the Criminal Code create the sense that multiple interpretations and violate the principle of lex certa and the principle of lex stricta as a general principle in the formation of criminal legislation. Multiple interpretations of the provisions of criminal procedure may result in legal uncertainty for citizens, because the law of criminal procedure dealing between investigators, prosecutors, and judges has the authority to inspect the suspect or defendant is entitled to legal protection.

Thus, the provisions of the calling and examination of witnesses and / or experts who are favorable to the suspect or defendant, as provided for in Article 65 in conjunction with Article 116 paragraph (3) and paragraph (4) Criminal Procedure Code, should be interpreted can be done not only in the stage of court proceedings, but also in the investigation stage. Negate the rights of suspects or defendants to file (call and examine) the witnesses and / or experts that benefit themselves suspect or defendant in the investigation stage, and just call favorable witnesses at this stage of the examination before the court alone, a violation of Article 1 paragraph (3 ) and Article 28D paragraph (1) of the 1945 Constitution.

Furthermore, in consideration of the Court explained the filing and or expert witness, the rights of a suspect or defendant, on the other hand is an obligation for investigators, prosecutors, and judges to call and examine witnesses and / or expert a quo. It is part of the application of the principle of due process of law in the criminal justice process and the realization of a fair legal certainty in a state of law. However, submissions or expert witnesses favorable to the suspect or defendant in criminal proceedings not to hinder the enforcement of criminal law. Although the rights of suspects or defendants are protected by the criminal procedural law but still is aware of the limits of reasonableness and legal interests of the people represented by the state. (Yusti Nurul Agustin/mh/Yazid.tr)