Law and Human Rights Ministry’s expert staff for Interagency Relations Dhahana Putra testifying on behalf of the Government virtually at the judicial review hearing of No. 8 of 1981 on the Criminal Procedure Code, Wednesday (6/29/2021). Photo by Humas MK/Ifa.

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Wednesday, June 28, 2022 | 15:14 WIB

JAKARTA, Public Relations—Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) provides clear regulations on the rights of suspects and defendants in line with the purpose of the KUHAP—providing legal certainty and guarantee and protection of human rights—said Law and Human Rights Ministry’s expert staff for Interagency Relations Dhahana Putra at a hearing on Wednesday, June 28, 2022 in the plenary courtroom of the Constitutional Court (MK). The case No. 61/PUU-XX/2022 was filed by Octolin H. Hutagalung and 11 other petitioners.

“[It] also encourages law enforcement officers to carry out their duties to the best of their abilities and avoid the arbitrary and unfair treatment,” he said at the hearing chaired by Deputy Chief Justice Aswanto.

Also read: Deemed Restrictive, Criminal Procedure Code Challenged by Advocates

Dhahana also rebutted the Petitioner’s allegation that investigators or researchers often bar legal counsels from accompanying their clients when being examined as a suspect or a witness or allow them to only accompany the examination passively. The Government asserted that it was legally groundless because Article 54 of the KUHAP clearly regulates the suspects and defendants’ right to legal assistance and defense.

“It is part of the protection granted by the KUHAP to suspects and defendants, that is, a set of human rights that must be respected and protected by law enforcement officers, which [were not regulated before the KUHAP was enacted],” he said.

Also read: Petitioners of Criminal Procedure Code Revise Petition Title

Biased

The Government also responded to the Petitioners’ argument that a person could be examined as a witness and then is a suspect by investigators without any notice, and claimed the allegation biased and irrelevant to the petition. Dhahana said that if it was true that law enforcement officers had behaved arbitrarily, it must be proven in a judicial process.

“And it will backfire on the law enforcement officers themselves, so what the Petitioners argued only showed distrust of the credibility of law enforcement officers who have been sworn in to carry out their duties. In terms of need and urgency, the examination of a witness does not need a legal counsel in order to realize a simple, fast, and low-cost trial as adopted by the KUHAP,” he said.

Constitutional Justice Suhartoyo clarified what the Petitioners referred to in the petition. He explained that there are fundamental parts to the rights of an advocate in providing legal services and protection to anyone who needs their services in criminal cases. In the Advocates Law, an advocate is given the freedom to provide legal services to anyone who needs it. However, it is different in the KUHAP, which does not accommodate this.

“The examination of witnesses is not in line with nor accommodate the spirit of the Advocate Law. In fact, according to the statement, witnesses are examined by law enforcement officers, whether at the investigation [or] research, they are integral parts of uncovering crime. And it is also possible that a witness then becomes a suspect. And this happens a lot and a witness could potentially to turn out to be a witness at the first summons for examination, but it turns out that for some reason they were made a suspect. That should have been explained earlier,” he said.

In response, Dhahana asked for time for the Government to provide additional information. Thus, the justice panel announced that the hearing would continue on Thursday, July 14 to hear statements from the House of Representatives (DPR), the Indonesian National Police, and the Corruption Eradication Commission (KPK).

The Petitioners, who are advocates, challenge Article 54 of the KUHAP, which reads, “In the interest of defense, a suspect or defendant shall have the right to legal assistance from one or more legal advisers during the period and at every level of examination, according to the procedure determined by this law.”

They believe that in a criminal case, advocates are often hired to assist someone who reports a crime, the reported, a witness, a suspect, or a defendant. They believe that the enactment of Article 54 of the KUHAP has led to legal uncertainty for advocates in performing their profession since there are no provisions in the KUHAP that regulates the rights of a witness or a person of interest to legal aid and assistance from a legal counsel in offering testimony before investigators in the police, the prosecutor’s office, or the KPK (Corruption Eradication Commission). Therefore, in the petitum, the Petitioners requested that the Court declare Article 54 of the KUHAP conditionally constitutional insofar as it be interpreted to include the witness and the person of interest.

Writer       : Nano Tresna A.
Editor        : Lulu Anjarsari P.
PR            : M. Halim
Translator : Yuniar Widiastuti (NL)

Translation uploaded on 6/30/2022 13:51 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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