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Ninik Hariwanti as the Director of Litigation of Legislations of Law and Human Rights Ministry after conveying the Government\'s statement related to review hearing of the Criminal Procedure Code (KUHAP), Wednesday (1/11) in the Courtroom of the Constitutional Court Building. Photo by Humas MK/Ganie.

The Constitutional Court (MK) held a further judicial review hearing of Article 162 paragraphs (1) and (2) of the Criminal Procedure Code (KUHAP), Wednesday (1/11). The hearing of Case No. 74/PUU-XV/2017 was to hear the statement of the President and the House of Representatives.

Director of Litigation of Legislations of Law and Human Rights MinistryNinik Hariwanti representing the Government explained that Article 162 paragraphs (1) and (2) of the Criminal Procedure Code does not reduce or eliminate the right of every person, including the Petitioner, to receive justice and legal certainty as argued by the Petitioner. Ninik explained that Article 162 paragraphs (1) and (2) of the Criminal Procedure Code is one of the provisions in the judicial process.

"The a quo article normatively does not reduce and limit the rights of a person or the right of the Petitioner to undergo judicial process in legal cases primarily to give testimony," he said before the panel of justices led by the Chief Justice of the Constitutional Court Arief Hidayat.

In addition, Ninik mentioned that Article 162 paragraphs (1) and (2) of the Criminal Procedure Code actually provides legal certainty as the realization of a legal state that aims to anticipate legal issues, especially in the judicial process. With the provisions of the a quo article, there is no reason for the termination of legal proceedings due to the implementation of a certain norm. "Conversely, if there is a problem as stated in the a quo article, then the legal process is stopped, it can endanger the realization of the state of the law itself," he explained.

In Relation to Article 184 of KUHAP

The Government also stated that the implementation of Article 162 paragraphs (1) and (2) of the Criminal Procedure Code (KUHAP) strengthens Article 184 of the Criminal Procedure Code, which states that the judge shall not impose penalties on a person, except if there are at least two legal pieces of evidence and the belief that a crime truly occurred. The a quo article constitutes an exception passage which becomes lawful by law, if the evidence or witnesses are acquired legitimately, except for reasons already stipulated. Therefore, that person’s testimony does not become null and void.

"If the testimony referred to in the a quo article is considered null and void on the grounds that [the witness] cannot be present at the hearing, it may reduce or eliminate the requirements of two pieces of evidence, as provided in Article 184 of the Criminal Procedure Code. Such a situation can create legal uncertainty, which can then also cause injustice to the wronged party. The consequences of a criminal offense which by reason of intended by the Petitioner will be able to free the defendant from a charge because their testimony is considered null and void because of their absence, for which then the legal process can be terminated," said Ninik.

Not a Matter of Norm Constitutionality

Ninik also said that the Government sees no causal relationship (clausal verband) between the harm suffered by the Petitioner that is specific due to the enactment of the article. In addition, the harm of the Petitioner is not considered constitutional damage.

"[The a quo article] is an article that can lighten or incriminate the defendant. The enactment of the a quo article can be done by both the prosecutor and the defendant. Such damage is common in a legal dispute and does not constitute a constitutional damage. The damage argued by the Petitioner due to the enactment of the a quo article constitutes an implementation damage, which may occur and depend on the strength of the evidence," he explained.

Teleconference Not Mandatory

In relation to teleconference, the Government stated teleconference examination in Indonesia has not been regulated in the Criminal Procedure Code, but has been affirmed in the Supreme Court Decision No. 112PK/PID/2006. In the decision, it is stated that based on jurisprudence, the examination of witnesses through teleconference has been practiced in several cases, but different from the common law system. In the common law system adopted by Indonesia, jurisprudence is only persuasive, so there is no obligation for judges in Indonesia to use teleconference.

"Because evidence outside of those shown through teleconference is not valid evidence. According to Article 184 of the Criminal Procedure Code, the evidentiary power of teleconference also depends heavily on the judge\'s judgment. Based on the aforementioned jurisprudence, it is necessary to obtain permission from the judges concerned because it becomes his/her right and/or authority as a law enforcement apparatus in examining or adjudicating a case submitted to him/her to reveal material truth. Thus, the witness examination through teleconference is not a requirement according to the criminal procedure law that applies in Indonesia," he said.

In the petition, the Petitioner claims that Article 162 paragraph (1) is contrary to the principle of legal certainty and justice referred to in Article 28D of the 1945 Constitution. The a quo article states that a witness may be absent from a court session and may provide statement in writing. Regardless, their statement shall be considered equal to a statement given by a witness present in a court session. According to the Petitioner, such provision has the potential to eliminate the Petitioner\'s constitutional right. According to the Petitioner, the provision potentially violates the constitutional rights of a defendant. The Petitioner also considers that the article could be misused by public prosecutors because witness statements cannot be contradicted by other witnesses, cannot be confronted with other statements, and cannot be questioned by the defendant. Even a judge cannot ask and see the expression when the person gives his/her statement. Therefore, he said, the article is no longer relevant. Technology is advancing rapidly. If a witness cannot attend a hearing for reasons in accordance with that article, then it can be done via visual communication (teleconference). (ARS/LA/Yuniar Widiastuti)

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