The material judicial review hearing of Article 54 of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) to hear the Petitioners’ witness, Tuesday (9/20/2022). Photo by MKRI/Ifa.
Tuesday, September 20, 2022 | 15:08 WIB
JAKARTA (MKRI)—The Constitutional Court (MK) held another material judicial review hearing of Article 54 of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) on Tuesday, September 20, 2022 to hear the Petitioners’ witness. The case No. 61/PUU-XX/2022 was filed by Octolin H. Hutagalung, Muhammad Nuzul Wibawa, Imran Nating, and other petitioners.
At the hearing chaired by Chief Justice Anwar Usman, veteran advocate Petrus Bala Pattyona testified as a witness for the Petitioners. He revealed that the police and the Corruption Eradication Commission (KPK) had once prohibited him from providing legal services for Brig. Gen. Prasetijo Utomo, who was involved in a case involving Djoko Tjandra.
“It was in August 2020. I was lending my service to Brig. Gen. Prasetijo, who testified as a witness. He was also made a suspect. Suspects have the right to a defense, so there was no problem. However, when I accompanied him [to testify] as a witness, there was a debate because the investigator said they were not obligated to allow an attorney to accompany the witness. However, we asserted that attorneys were not prohibited from accompanying a witness,” he said virtually.
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“The Director for the Criminal Act of Corruption, Djoko Purwanto, said that there was such a provision in a police regulation issued in 2013. We engaged in a debate and [I] was asked to leave the [questioning] room,” Pattyona revealed.
He felt that his constitutional rights as an attorney were violated by being banned from offering his professional counsel to his client. “However, I believe my constitutional impairment was in terms of my job and livelihood, because the attorney’s profession of legal counsel is protected by Article 27 of the 1945 Constitution. That was the first case,” he explained.
He said the same thing happened before when he counseled Tommy Soeharto in the case of the murder of Supreme Court Justice Syafruddin. “[I] argued that there was no such prohibition. At the time, constitutional debates that are popular today were not trending. I feel that the prohibition from accompanying my witness harmed me as an advocate,” he said.
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Pattyona said such rejections were because it was not mandated that a witness be accompanied by an advocate. When a witness does not testify truthfully, they will be said to have committed perjury. When they become a suspect and plead the fifth, the investigator will refer to their witness testimony. “So, the impairment is not only the advocate’s [inability] to perform the profession, but also justice seekers’ inability to defend themselves,” he added.
“Therefore, I would be thankful if the Court could provide a constitutional interpretation whether this legal counsel is mandatory or whether a witness has a right to determine whether they want legal counsel. The investigator does not consider the witness’ interest, so the potential harm is great. Justice seekers or witnesses, in terms of advocacy, suffer constitutional impairment,” Pattyona explained.
He stressed his wish that the Court interpret conditionally whether investigators allow witnesses to receive legal counsel during their testimony as witnesses or suspects.
“That was my experience. The KUHAP itself is not strict, so the national police headquarters only interpreted the provision with the regulation of the chief of the Criminal Investigation Agency. Meanwhile, the KPK said there was a standard operating procedure, almost all advocates experience. What the KPK does to witnesses are like what it does to suspects, such as freezing banking accounts, seizure, restricting overseas travel, and so on. So, the treatment to witnesses is unclear, while to suspects it is clear. I believe the witnesses’ legal rights have been violated, as have that of advocates and justice seekers,” Pattyona emphasized.
Also read: Jamin Ginting: Witness and the Reported Have Right to Legal Assistance
Turned Away
Meanwhile, witness Bagia Nugraha recalled that he had once been turned away from the questioning room by investigator when assisting his client as a witness of alleged corruption at the South Jakarta Prosecutor’s Office. He had provided a power of attorney and his Peradi (Association of Indonesian Advocates) membership card, but turned away because his client was just a witness.
“I argued with the investigator that Article 18 of the Human Rights Law stipulates that everyone being examined has the right to legal counsel. The investigator said they had a formal law in the KUHAP, which does not expressly say that a witness has the right to legal counsel. He then threatened to make my client a suspect. I left the room after that,” he revealed.
In his written testimony, he explained that during a witness examination, a witness has the right to an advocate, who will keep the examination neutral so as to prevent any undue pressure. In the examination/investigation stage as part of the prejudicial stage, a witness could determine whether an alleged crime has occurred. They also play a role in determining one’s legal status as a suspect.
“I have been turned away and intimidated when accompanying my client as a witness as a result of the implementation of Article 54 of the KUHAP, which is a constitutional violation, both to a citizen who testifies as a witness and to me as an advocate that has the duty and responsibility to protect the client’s rights before the law,” he emphasized.
Also read: Petitioners’ Experts Explain Advocates’ Role in Criminal Justice System
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.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/12/2022 08:18 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 20, 2022 | 15:08 WIB 181