Constitutional Justice Arief Hidayat delivering a keynote speech and opening a national seminar, Thursday (14/11) at Tarumanegara University, Jakarta. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—Constitutional Justice Arief Hidayat delivered a keynote speech and officially opened a national seminar that marked the start of the 2019 National Moot Court Competition for the Chief Constitutional Justice trophy, Thursday (14/11) at Tarumanegara University, Jakarta.

Justice Arief considered the national seminar on "The Constitutionality of Aircraft Accident Investigation Results as Evidence in Court" interesting from the human rights perspective. According to him, the reference to human rights regulated in the 1945 Constitution is the Decree of the People\'s Consultative Assembly (Tap MPR) Number XVII/1998 concerning Human Rights, first adopted in Law Number 39 of 1999 concerning Human Rights .

He explained that on that note, human rights regulated in the Constitution can be limited as long as its limitation is stipulated in the law, and this is confirmed in Article 28J, which concludes the human rights regulations in the 1945 Constitution. Although human rights can be limited, these restrictions must not be discriminatory, hinder, or even eliminate equal opportunities before the law and the Government.

In a number of decisions, the Constitutional Court has interpreted Article 28J paragraph (2), "Human rights can be limited but the limitation requires seven things. First, regulation in the law. Second, strong, reasonable, proportionate, and not excessive reasons. Third, to ensure recognition and respect for the rights and freedom of others. Fourth, meeting fair demands in accordance with moral considerations, religious values, security, and public order in a democratic society. Fifth, non-discriminatory. Sixth, not illegally obstruct or eliminate the right of citizens to obtain equal opportunities in government. Seventh, related to the right to vote, restrictions based on consideration of incompetence, such as age, mental state, and impossibility, for example due to voting right revoked by a court decision that has permanent legal force and is generally individual and not collective," he said.

To the academic community of Tarumanegara University and participants of the 2019 National Moot Court Competition for the Chief Constitutional Justice trophy from 12 universities that went to the national level, Justice Arief posed a question for discussion, "Is the provision on the results of an aircraft accident investigation cannot be used as evidence in the court a human rights restriction, or instead human rights protection? Please discuss [it] through this forum, as experts are in attendance."

Investigation by the National Transportation Safety Committee (KNKT) 

Criminal law expert Edward OS Hiariej in his presentation explained the objective of KNKT investigations, which is different from the objective of investigations by law enforcement officials. According to him, evidence is the truth of an event. In the law, looking for the truth of an event means finding who is guilty and what the sanction will be. This, according to Eddie, is different from the purpose of the KNKT, which is finding the causes and preventing similar accidents.

Aviation law expert K. Martono, who said that aviation needs honesty, agreed. "If too many [violators] are punished, no one will want to be honest," he said. He believes many factors leads to an aircraft accident, including pilots working under pressure that they do not dare reporting when they are not in great conditions, because this could affect their flight license. Martono asserted that the KNKT has the duty to protect many parties, including users of aviation services, so that similar incidents do not recur. He also revealed that the ban on the publication of aircraft accident investigations not only applies in Indonesia, but in other countries. (Ilham/NRA)

Translated by: Yuniar Widiastuti