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Panel revision hearing of the judicial review of the Telecommunication Law, Tuesday (4/12) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Bayu.

The revision hearing of the judicial review of Law No. 36 of 1999 on Telecommunication was held by the Constitutional Court (MK) on Tuesday (4/12). Attorney Ma’ruf conveyed several revisions, including of legal standing and constitutional loss.

"[The Petitioner removed and merged the introduction into the legal standing]. Then, in constitutional loss, we elaborated the constitutional impairment of the Petitioner in the petition revision in points 14 to 16. The constitutional rights of the Petitioner have been impaired by the enactment of the provision of Article 42 paragraph (2) of the Telecommunication Law. The Petitioner did not have equal opportunity as subjects permitted by the provision of the Telecommunication Law to present audio recording and transcript during criminal justice process," said Ma\'ruf. 

The enactment of the provision, Ma\'ruf added, had resulted in the Petitioner as a justice seeker to not have the right to request audio recording to telecommunication operator. Especially, he added, in the interest of defense in the criminal trial that the Petitioner is undergoing when the subject specified in the norm would not submit evidence of the recording to the court. 

"[The provision of Article 43 of the Telecommunications Law has been determined] for the benefit of the criminal justice process. As referred to in Article 42 paragraph (2), providing audio recording is not a violation," said Ma’ruf. 

Therefore, said Ma\'ruf, indeed the limitation of subjects who can request audio recordings to Attorney General, Chief of Police of the Republic of Indonesia, and investigators of certain crimes has made the Petitioner as a defendant unable to submit evidence of recorded conversations in the interest of defense to the court. 

"In fact, the audio recording can be useful to find material truth of the Petitioner\'s case in the North Jakarta District Court to prove the presence or absence of communication between the Petitioner and anyone regarding illicit circulation of narcotics. Because the Petitioner as [a defendant] cannot submit the evidence of audio recording in the interest of the Petitioner\'s defense to the court, the norm has contradicted the principle of due process of law that declares that a suspect or defendant in casu the Petitioner has equal position [to law enforcement officers] in the criminal trial process," Ma\'ruf elaborated before the panel of justices led by Constitutional Justice Arief Hidayat. 

The petition registered as Case Number 94/PUU-XVI/2018 was requested by Sadikin Arifin. THe argued that his determination to request proof of recorded conversations to be presented before the court was not without basis. According to him, the recording evidence would have a great role in proving whether or not there had been talk about narcotics between the Petitioner and a foreign national (WNA) who were accused of joint drug crime. 

According to the Petitioner, based on verification in the his criminal trial, there was at least the fact, among others, that a person accused along with him of a criminal offense of illicit narcotics distribution had died after being shot by officers of the National Narcotics Agency (BNN) during an arrest, which then captured the Petitioner as a single defendant in the North Jakarta District Court. 

In addition, the Petitioner\'s had given statements throughout the trial denying possession of the item and denying any communication with foreigner who had been shot by BNN officers or with anyone related to narcotics. He also denied the laboratory result of his urine sample that was said to show indication of narcotics or psychotropic drugs. During a search in his residence, no narcotics or related items were found. 

In the Petitioner\'s criminal case, his ID was confiscated by the investigator. The BNN officer who stood as witness in the trial said that the ID was used to prove the Petitioner\'s identity. Therefore, the Petitioner wondered why there was no evidence to suggest any conversation between the Petitioner and the foreigner or anyone related to narcotics. (Nano Tresna Arfana/LA/Yuniar Widiastuti)

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