Another material judicial review hearing of Article 54 of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) to hear experts for Peradi (Relevant Party), Monday (10/10/2022). Photo by MKRI/Ifa.
Tuesday, October 10, 2022 | 15:28 WIB
JAKARTA (MKRI)—The Constitutional Court (MK) held the ninth material judicial review hearing of Article 54 of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) on Monday, October 10, 2022 to hear two experts and one witness for the Association of Indonesian Advocates (Peradi) as a Relevant Party. The case No. 61/PUU-XX/2022 was filed by Octolin H. Hutagalung, Muhammad Nuzul Wibawa, Imran Nating, and other petitioners.
Constitutional law lecturer of the Indonesian Muslim University Fahri Bachmid explained that Article 54 of the KUHAP gives suspects or defendants an exclusive right to legal assistance at every level of examination. However, law enforcement officers limit advocates from providing legal assistance to witnesses while, in fact, internationally, advocates can provide defense to witnesses and victims of rape, sexual harassment, and to whistleblowers of organized crimes, as seen in the International Criminal Court (ICC). Thus, the criminal justice system no longer focuses on the perpetrators crimes versus the state, but the same protection is provided for all units involved.
Fahri explained that since a criminal case is exposed to investigation to evidentiary trials, witnesses are highly expected, as their statements could be a determining factor. Thus, there must be guarantee of freedom from fear before, during, and after giving testimony, as it is imperative that they provide truthful information without any pressure.
Indeed, Article 5 paragraph (1) of Law No. 13 of 2006 on the Witness and Victim Protection (the PSK Law) regulates rights granted to witnesses and victims, but not very specific. Among these rights are the right to legal assistance, to certainty of legal status, to freedom from sanction, to substitute job, to an opinion in every examination process that can help sentence the perpetrator.
“These rights are very important, considering that in some cases witnesses really need an advocate to accompany them during examination. With an advocate beside them, witnesses will feel more comfortable in giving testimony and be more confident because they get legal protection,” Fahmi explained.
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Advocate’s Rights
Meanwhile, Head of the Legal and Legislative Studies Division of Peradi Nikolas Simanjuntak testified as an expert that investigators, the state, or even the Government do not have the right and authority to eliminate, hinder, limit, and neglect the human rights of witnesses/persons of interest who have entrusted their testimony to an advocate. Therefore, every state official, including the Government, must be responsible for ensuring the implementation of these rights. He emphasized that Article 54 of the KUHAP is against Article 28D paragraph (1) of the 1945 Constitution.
“The legal culture regarding the article must be stopped because it still adheres to the colonial mentality that is domineering, exploitative, and intimidating to witnesses, investigators, lawyers or legal counsels, who should be equal in law, legislation, code of ethics, and professional oaths to God Almighty,” he explained Nikolas before Chief Justice Anwar Usman and the other constitutional justices.
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Vulnerable to Intimidation
Meanwhile, YLBHI (Indonesian Legal Aid Foundation) chairman Muhamad Isnur recalled his experience assisting witnesses/persons of interest in several criminal cases. In 2013, he and a team from LBH Jakarta tried to accompany Cipulir buskers who were accused of murder. They were kept from offering legal assistance because the case was still under investigation. The buskers were forced to make false confession. The investigators claimed that only suspects had the right to legal defense. The real killer surrendered to the police but his testimony was rejected. However, he testified in court. Finally, the High Court and the Supreme Court acquitted the buskers.
“Their families did not accept the wrongful arrest and sued the police. The court granted the lawsuit and ordered the police to pay compensation to the buskers,” Isnur said.
From his experiences assisting witnesses/persons of interest in various criminal cases in 2019 and 2020, Isnur found that without legal defense, witnesses are left vulnerable to pressure and intimidation. He added that in practice, there are ‘confirmation’ and ‘person of interest,’ which are not regulated in the KUHAP. “I found that in many cases, someone could be summoned to give a witness testimony and then be declared a suspect,” he revealed.
Before concluding this last session, Chief Justice Anwar informed the parties to submit their conclusions no later than Tuesday, October 18, 2022 at 11:00 WIB to the Registrar’s Office.
Also read:
Jamin Ginting: Witness and the Reported Have Right to Legal Assistance
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 14:35 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.
Monday, October 10, 2022 | 15:28 WIB 374