Ifdhal Kasim testifying as an expert for the Petitioners at the judicial review hearing of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP), Tuesday (9/6/2022). Photo by MKRI/Bayu.
Tuesday, September 6, 2022 | 15:20 WIB
JAKARTA (MKRI)—In the criminal justice system, advocates help suspects and defendants understand the legal process they are undergoing, including the pre-adjudication, adjudication, and post-adjudication stages. They also supervise and assist investigators and public prosecutors in maintaining a balance between the public interest and all rights and guarantee provided by law to suspects and defendants.
This statement was made by Ifdhal Kasim as an expert for Octolin H. Hutagalung and 11 other petitioners at the seventh hearing for the material judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) on Tuesday, September 6, 2022. The hearing for case No. 61/PUU-XX/2022 was presided over by Deputy Chief Justice Aswanto (panel chair) and the other seven constitutional justices.
According to Law No. 18 of 2003 on Advocates, Ifdhal added, advocates have an important position in the criminal justice system. One of them is to maintain a balance between the large role of law enforcers such as the police and prosecutors and the weak position of the suspect/defendant. Therefore, independent advocates are very much needed, although in practice, advocates rarely get to play this role.
“In fact, finding the truth about a suspect or defendant’s guilt or innocence requires ‘due process.’ In this context, the criminal justice system must also consider the witnesses’ position in order to receive assistance from advocates on their volition,” said the former chairman of the National Commission on Human Rights (Komnas HAM) of 2007–2012.
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Legal Assistance for Witnesses
Ifdhal also explained the witnesses’ position in the criminal justice system in Indonesia. The protection for witnesses is still minimal, he said. However, they are expected to fulfill their obligation. Thus, they assume a vulnerable position where they may make statements that incriminate themselves. Therefore, legal assistance by advocates for witnesses is very important. He mentioned that witnesses in Anglo-Saxon countries must be accompanied by advocates, since they may incriminate themselves and, as a result, may be indicted for it.
To avoid this, Ifdhal said, it is time for the criminal justice system to provide adequate protection to witnesses and victims, including victims of rape and sexual harassment to witnesses who reveal the secrets of criminal organizations. The criminal justice system no longer relies on perpetrators versus the state, but each unit involved in must be given the same protection.
“I believe the judicial review petition of Article 54 of the KUHAP against Article 28D paragraph (1) of the 1945 Constitution has strong constitutional reasons. Therefore, the Petitioners request that the Court declare Article 54 of the KUHAP is constitutional as long as it is interpreted to include witnesses and the person of interest in line with the spirit of Article 28D paragraph (1) of the 1945 Constitution, which reads, ‘Everyone shall be entitled to fair legal recognition, certainty, protection, and assurance and equal treatment before the law.’”
Also read: Criminal Procedure Code Guarantees Rights of Suspects and Defendants
Protection for Justice Seekers
Meanwhile, Lies Sulistiani, a law lecturer of Padjadjaran University, testified on the protection for justice seekers, especially witnesses and victims, in Indonesian criminal justice system. Over time, she added, the KUHAP, which has existed since 1981, has not been paying enough attention to witnesses and/or victims. She asserted that the KUHAP was offender-oriented and had little attention for witnesses, victims, or other persons of interest. However, the Indonesian people are starting to realize that access to justice must also be guaranteed for parties other than suspects/defendants is a right.
“Therefore, justice seekers are not only for suspects/defendants, but also victims or witnesses involved in the criminal justice process,” Lies said.
She further explained that as a law-based state, Indonesia has ratified the International Covenant on Civil and Political Rights (ICCPR) through Law No. 12 of 2005. Thus, Indonesia is bound by various obligations, including that to respect, protect, and fulfill human rights within its jurisdiction, including rights enshrined in Article 14 of the ICCPR, to ensure proper implementation of justice. Access to justice in the criminal justice system, she added, must begin by guarantee for the balance of the implementation of assistance, protection, and defense of all parties by advocates as well by the protection and fulfillment of the rights of witnesses and/or victims by the Witness and Victim Protection Agency (LPSK). In this case, access to justice and fair treatment is important in criminal procedural law and its implementation is the responsibility of law enforcement officials.
Also read: House, Police, KPK’s Views on Legal Assistance during Examination
Advocates-LPSK Synergy
Lies also said that the judicial system could run well upstream to downstream when each subsystem plays a role in carrying out their respective functions and responsibilities, including advocates and the LPSK. They can continue to accompany justice seekers—suspects/defendants, witnesses, and victims—at all stages of the judicial process or throughout the criminal justice process. This means that their work cannot be restricted. In other words, advocates should be able to provide assistance in all stages of the examination and, in line with its function, the LPSK should be able to provide protection and fulfillment of the rights of witnesses and/or victims since investigation.
“So that the function of advocates and the LPSK can be carried out throughout the judicial process, because the function is subjective to the situation and condition of the parties they accompany. Meanwhile, the advocate’s function to provide advice and assistance to witnesses will not negate the function of the LPSK, because the advocate’s function relates to defense, which is different from the LPSK’s function, which is protection for witnesses and/or victims of criminal acts in cases that result in threats of danger to witnesses and/or victims. Therefore, even though advocates and the LPSK’s functions may overlap, they can actually support and synergize with each other,” Lies said.
Before concluding the session, Deputy Chief Justice Aswanto informed the litigants that the next hearing would commence on Tuesday, September 20 to hear the Petitioners’ witness.
Also read: Jamin Ginting: Witness and the Reported Have Right to Legal Assistance
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 : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/9/2022 09:56 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.
Tuesday, September 06, 2022 | 15:20 WIB 454