Abdul Chair Ramadhan as Expert presented by the Petitioner delivering his expertise in the judicial review hearing of the Criminal Procedure Code (KUHAP), Monday (20/11) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The material judicial review of Article 162 paragraphs (1) and (2) on the regulation of non-mandatory witness attendance in Law No. 8/1981 on the Criminal Procedure Code (KUHAP) once again was held by the Constitutional Court (MK) on Monday (20/11). In the session led by the Chief Justice of the Constitutional Court Arief Hidayat, the Petitioner presented Abdul Chair Ramadan as an Expert.

In his statement, Abdul argued that the a quo article raises legal uncertainty. This is because of the conflict of norms between Article 162 paragraphs (1) and (2) of the KUHAP and Article 185 paragraph (6) of the KUHAP. Abdul said that Article 162 paragraphs (1) and (2) intersects with the provisions of Article 185 paragraph (6) and Article 1 number 27 of the KUHAP, which then lead to a conflict of norms. Article 185 paragraph (6) of the KUHAP reads, "(6) In judging the truth of a testimony by a witness, a judge must seriously take into account: a. the concurrence between the testimony of one witness with that of another; b. the concurrence between the testimony of a witness with another evidence material; c. the reason which might have motivated a witness to give a certain testimony; d. the way of life and morality of a witness and any other things which can be of influence for determining whether or not the information he has given can be trusted.”

"With the provisions of Article 162 paragraphs (1) and (2) of the KUHAP, which places the statement of oath at the investigation stage equal to the testimony of a witness under oath, which is pronounced in the hearing, the validity of a criminal event which he hears, experiences, and sees for himself, will certainly lose its meaning and cannot be cross-checked for truth," he explained in the hearing of case No. 74/PUU-XV/2017.

The Lecturer of Law at the As-Syafiiyah Islamic University explained that the articles being reviewed by the Petitioner seem to ignore due process of law. This is because it all boils down to the validity of guidance to the judge and reduces the rights or interests of the defendant in the trial, in which a witness testimony should have been presented to assess the validity of the testimony of the witness. He also believes that the most important element to confront a witness testimony as stipulated in Article 165 paragraph (4) becomes meaningless when the intended witness is not present in court and cannot be confronted by other witnesses. "Where the witness testimony is read, of course its validity and truth will be doubted, as long as there is no compliance with other evidence materials, there is no compliance with the testimonies of other witnesses," Abdul explained.

Meanwhile, another Petitioner Expert, Akhiar Salmi, stated that the presence of witnesses is useful for exploring material truth. If witness statements are only read out in court without the presence of the witnesses, what occurs is formal truth, which is the objective of civil procedure law, but not of criminal procedure law.

"Material truth can only be obtained through evidence in the form of witness testimony because the parties involved in the criminal justice process can ask the witness directly and explore why the witness knows the event, the reason for his knowledge, making it difficult for the witness to lie," he explained.

Emir Moesi, a former member of the House of Representatives for the 2004-2009 period, challenges the regulation on the testimony of witness who does not attend a court session. The Petitioner argues that Article 162 paragraph (1) is contrary to the principle of legal certainty and justice as stipulated in Article 28D of the 1945 Constitution. The a quo article states that a witness may be absent from a hearing and may submit his/her testimony in writing. However, the testimony is considered equal in value as a testimony given at the hearing. The Petitioner claims that the provision potentially violates the constitutional rights of a defendant. He argues that the provision is vulnerable to abuse by the public prosecutor, because the witness testimony cannot be contradicted by other witnesses, cannot be confronted by other testimonies, cannot be questioned by the defendant. Even the judge cannot ask and see his/her expression when he/she gives his/her testimony. On the other hand, the article is no longer relevant. Today, technology has advanced rapidly. If a witness cannot come to the court for reasons in accordance with the article, visual communication/teleconference can be carried out. (ARS/LA/Yuniar Widiastuti)