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Tuesday, August 2, 2022 | 15:21 WIB

JAKARTA, Public Relations—The Indonesian Advocates Association (Peradi) believes witnesses and persons of interest have the right to a legal counsel or advocate during examination during a criminal case or research and investigation. As such, the association as the Relevant Party for the case No. 61/PUU-XX/2022 insisted that advocates have constitutional rights to counsel witness during examination. This statement was made by Sutrisno, Peradi’s legal counsel in his virtual testimony at the fifth judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) before the Constitutional Court (MK) on Tuesday, August 2, 2022.

At the hearing, he explained an advocate as someone whose profession is to offer legal assistance in and outside of the court after meeting the requirements as referred to in Article 1 paragraph (1) of the Advocate Law. based on Article 5 paragraph (1) of the Advocate Law, he added, as law enforcers, advocates’ freedom and independence are guaranteed by law and statutory legislation.

“From both articles, it can be ascertained that advocates as law enforcers provide legal assistance to justice seekers in the criminal case process at the level of both research and/or investigation in accordance with the norms or provisions stipulated in the Law on Criminal Procedure Code,” he explained.

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

The KUHAP, Sutrisno said, is a positive law that applies in the criminal justice system and is the foundation of the legal apparatus—police researchers and investigators in the enforcement of material criminal law. Therefore, it must proceed with the applicable criminal procedural law. In addition, based on Indonesia’s philosophy as stated in the preamble to the KUHAP, the Unitary State of the Republic of Indonesia is a law-based state based on Pancasila and the 1945 Constitution that upholds human rights and guarantees all citizens have equal status before the law and government and have an obligation to uphold the government without exception.

It shows that the philosophical foundation of the KUHAP is Pancasila, the supreme law of the land in Indonesia. Therefore, it was founded based on the values of Pancasila. As such, all legal norms relating to rights of persons or witnesses and advocates cannot be compared to those in other countries, including liberal, individualistic countries such as Germany and French, Sutrisno added.

Also read: Petitioners of Criminal Procedure Code Revise Petition Title

He also explained that advocates have the right to offer legal assistance to witnesses, suspects, defendants, and convicts in criminal cases in order to ensure that all examinations at all levels are in accordance with the applicable criminal procedural law and due process of law. In addition, Article 54 of the KUHAP only states that a suspect or defendant is entitled to legal assistance from one or more legal counsels during or at any time and at each level of examination. Thus, the provision has eliminated the right of advocates to exercise their rights as law enforcers in accompanying witnesses at the level of examination, research, and investigation.

Also read: Criminal Procedure Code Guarantees Rights of Suspects and Defendants

Ambiguous

In response to the Relevant Party’s testimony, Constitutional Justice Suhartoyo asked them to add more detailed explanation on legal assistance, which he believed to be rather ambiguous.

“Although in some parts Peradi supports the Petitioners, upon observation of the testimony conveyed today, there is something ambiguous. Please explain in an additional testimony. On one hand, it is clear who legal assistance is for—for everyone. The Court has offered opinion on the elucidation, which the Petitioners then challenged. I don’t know the coordination with Peradi. Why is not the body Article 54 that is challenged? Please explain, because if you support this, you must go along with the Petitioners’ petition,” he advised.

Also read: House, Police, KPK’s Views on Legal Assistance during Examination

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         : Lulu Anjarsari P.
Translator    : Yuniar Widiastuti (NL)

Translation uploaded on 8/3/2022 07:46 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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