Another virtual judicial review hearing of No. 8 of 1981 on the Criminal Procedure Code to hear the House, the Police, and the KPK, Thursday (7/14/2021) in the plenary courtroom. Photo by Humas MK/Ifa.
Thursday, July 14, 2022 | 18:14 WIB
JAKARTA, Public Relations—Article 54 of the KUHAP is a form of guarantee of legal rights for suspects and defendants to obtain legal assistance from legal counsels. “The provision in the Law on [Criminal Procedure Code] has provided clear boundaries of the definition of witness,” said House of Representatives (DPR) Commission III member Arteria Dahlan when testifying at the judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) before the Constitutional Court (MK) on Thursday, July 14, 2022 virtually.
Arteria said Article 54 of the KUHAP did not keep the Petitioners from performing their profession to provide legal assistance before a witness is examined. If the witness is then declared a suspect or defendant, the Petitioners may assist them and provide them with legal assistance in accordance with the rights of an advocate or legal counsel and of the rights of suspects and/or defendants.
“Therefore, the provision of the a quo article is not against the 1945 Constitution,” he added.
In response to the statement of limited assistance by an advocate or legal counsel, Arteria said that a witness only requiring assistance before an examination starts is in line with the concept of the criminal justice system in which witnesses are positioned as evidence to seek substantive truth. “It serves to find facts related to the investigation, in which when a witness gives inaccurate information, there is the consequence of penalty based on Article 242 of the Criminal Code, which in essence regulates criminal provisions against anyone who commits perjury and/or give false testimony. Based on these provisions, it can be understood that a witness is a party who has not been suspected of a criminal act, so that in handling it, the principle of presumption of innocence and the principle of equality before the law are absolutely necessary,” he explained.
With these principles in mind, Arteria said that the examination of witnesses must follow proper procedures, avoiding any violation of the witnesses’ rights. Thus, the Petitioners need not worry that witnesses be treated inappropriately.
He added that Law No. 13 of 2006 on the Protection of Witnesses and Victims, as amended by Law No. 31 of 2014, also gives authority to the state organ Witness and Victim Protection Agency (LPSK) to provide assistance to witnesses or victims at all stages of the criminal justice process. This is the legislators’ effort to provide all witnesses or victims in criminal justice a sense of security. However, the LPSK only provides legal protection, but not for the sake of defense, as regulated in Article 54 of the a quo law.
“The House leaves the legal assistance obligation of advocates [and] legal counsels in the examination of witnesses that the Petitioners requested to the discretion of the honorable constitutional justices,” he concluded.
Implementation of Article 54
The Head of the Legal Aid Bureau of the National Police Legal Division Imam Sayuti said the Petitioners did not suffer constitutional impairment due to Article 54 of the KUHAP. Arguing that there was no specific, actual, or potential impairment, which according to logical reasoning is inevitable nor was there any causal relationship between the perceived loss and the enactment of the norm, and that the impairment only related to an alleged mis-implementation of the norm, the Police requested that the Court declare the Petitioners lacking the legal standing to file the material judicial review petition.
“However, the Police leaves it to the chief justice and constitutional justices of the Constitutional Court to consider and adjudicate whether the Petitioners have the legal standing or not on the enactment of Article 54 of the KUHAP,” Imam stressed.
He said Article 54 of the KUHAP in the investigation process will continue to the next step, the trial, where criminal prosecution and defense are closely related. Therefore, there will be a fundamental difference in context if assistance is needed for witnesses during the investigation process.
“Based on the provision of Article 1 point 26 of the Criminal Procedure Code, ‘a witness is a person who can provide information in the interest of investigation, prosecution, and trial on a criminal case which he himself has heard of, witnessed, or experienced.’ The presence of witnesses in the investigation process is in the context of validating evidence based on the provision of Article 184 of the Criminal Procedure Code for a person to be designated as a suspect and is also in line with the definition of an investigation based on the provisions of the Criminal Procedure Code,” he explained.
Witness Assistance
The KPK’s Deputy for Enforcement and Execution Karyoto said there is no legal treat at all to a witness as long as they provide accurate, honest testimony. In this context, they are not facing the law formally and materially. Furthermore, testifying on an incident not for the state but for the sake of truth and justice requires honesty. In such capacity, a witness does not require any assistance, including from legal consels. They must be free from intervention by any other party and testify to what they have experienced, witnessed, and heard.
“Any advice outside of [they a witness experienced, witnessed, and heard] could obscure what a witness will testify to because they could be confused by the suggestions,” he added.
Karyoto said the Petitioners’ claim that Article 54 of the KUHAP was multi-interpretive was legally groundless. Defense in Article 54 of the KUHAP is the legal counsel’s effort for the suspect and defendant. It is also mentioned in Article 51, Article 70 paragraph (1), Article 71, Article 182 paragraph (1) letter b, and Article 203 paragraph (3) letter c of the KUHAP. Therefore, legal counsel’s assistance in Article 54 of the KUHAP cannot be extended willy-nilly to witnesses because the defense in those articles relating only to suspects and defendants, not to witnesses.
He also emphasized that assistance by legal counsels only to suspects and defendants also applies in criminal justice in other countries, as referred to in international law.
Also read:
Deemed Restrictive, Criminal Procedure Code Challenged by Advocates
Petitioners of Criminal Procedure Code Revise Petition Title
Criminal Procedure Code Guarantees Rights of Suspects and Defendants
The case No. 61/PUU-XX/2022 was filed by Octolin H. Hutagalung and 11 other petitioners. 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 : Utami Argawati.
Editor : Nur R.
PR : Raisa Ayudhita
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 7/21/2022 08:09 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.
Thursday, July 14, 2022 | 18:14 WIB 240