Yusril Ihza Mahendra as attorney during revision hearing for judicial review of the Criminal Procedure Code (KUHAP) on Tuesday (17/10) at the Constitutional Court Building. Photo by Humas MK/Ganie.

The Constitutional Court (MK) once again held a hearing of material review of Article 162 paragraphs (1) and (2) of Law No. 8/1981 on the Criminal Procedure Code (KUHAP) on Tuesday (17/10). Emir Moesi, former member of the House of Representatives (DPR) for the 2004-2009 period, challenged the regulation on the testimony of witness who does not attend a court session and revised his petition.

Yusril Ihza Mahendra as legal counsel explained the petition revision. First, the petitum was revised from originally requesting that Article 162 paragraphs (1) and (2) of the Criminal Procedure Code be revoked, to requesting that the a quo article be declared conditionally constitutional. The a quo article is conditionally constitutional if interpreted that witness testimony can be used as valid evidence if strengthened or matches the testimony of another witness who give their testimony under oath during a court session.

“That witness testimony, as stipulated by Article 162 paragraphs (1) and (2), can only be used as valid evidence, as stipulated in Article 184 of the Criminal Procedure Code, if the testimony is strengthened or matches the testimony of another witness who gives their testimony under oath during a court session. Without affirmation from or conformity with the testimony of another witness who gives their testimony under oath during a court session, for the sake of justice and prevention of arbitrariness, witness statement as stipulated in Article 162 paragraphs (1) and (2) cannot be used as valid evidence, as stipulated in Article 184 of the Criminal Procedure Code," he explained.

In the petition, the Petitioner claimed that the article was contrary to the principle of legal certainty and justice as stipulated in Article 28D of the 1945 Constitution. The provision as seen as violating the Petitioner\'s constitutional right to obtain correct and fair criminal law enforcement. Article 162 paragraphs (1) and (2) of the Criminal Procedure Code states that a witness may be absent from a court session and may provide testimony in writing. Regardless, their testimony shall be considered equal in value as a testimony given by a witness present in a court session. According to the Petitioner, the provision potentially violates the constitutional rights of a defendant. (Lulu Anjarsari/Yuniar Widiastuti)