Protection over Experts Who Give Statements in Criminal Cases Questioned

Muh. Ibnu Hajar Rahim (Petitioner) conveying his petition virtually at the preliminary hearing of Law No. 31 of 2014 on Witness and Victim Protection, Monday (10/21/2022). Photo by MKRI/Ifa.

Monday, November 21, 2022 | 16:40 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the judicial review of Law No. 31 of 2014 on the Amendment to Law No. 13 of 2006 on Witness and Victim Protection (PSK Law) on Monday, November 21, 2022. The petition No. 109/PUU-XX/2022 was filed by Muh. Ibnu Hajar Rahim, a lecturer at President University and a criminal law expert. At the hearing, he argued that Article 10 paragraph (1) of the PSK Law and its elucidation had violated Article 28D paragraph (1) and Article 28I paragraph (2) of the 1945 Constitution.

Article 10 paragraph (1) of the PSK Law reads, “Witnesses, Victims, Justice collaborators, and/or Informants cannot be legally prosecuted, whether through criminal or civil court upon the testimony and/or statement that will be, is or have been given, unless such testimony or statement was given not in good faith.” Meanwhile, its elucidation reads, “What is meant by ‘giving testimony not in good faith’ in this provision, among others, is giving false testimony, committing perjury, and being involved in an evil conspiracy.”

The Petitioner believes the norm was uncertain, unfair, and discriminatory as it only protects witnesses, victims, justice collaborators, and/or informants from criminal or civil lawsuits after giving testimony or statement, but does not provide the same protection to experts who give statements in criminal cases. They, he asserted, could be sued for their statements as experts during investigation.

Expert Statements

Statements by experts—statements made by people who have specific expertise on matters being disputed in a trial to shed light on legal events—are some of the pieces of evidence in the evidentiary process at trial. In criminal cases, they have the same position as other pieces of evidence as referred to in Article 184 paragraph (1) letter b of the Criminal Procedure Code (KUHAP). Thus, expert statements are independent evidence which, when added to other valid pieces of evidence, fulfil the requirement for proof (bewijs) to be able to convince the judge that an offense has occurred and the defendant is guilty of committing a crime.

“Everyone should understand that an expert statement has the same position of evidence as other pieces of evidence. The judge is absolutely not bound by the statement given by an expert. However, in various tort lawsuits shown to experts, it has various implications. An expert who provides a statement should be respected, appreciated, and protected because they are able to assist law enforcers in explaining a case according to their expertise. So, in this law, there is no guarantee for an expert who gives testimony during a criminal trial,” the Petitioner emphasized before Constitutional Justices Daniel Yusmic P. Foekh (panel chair), Manahan M. P. Sitompul, and Enny Nurbaningsihv.

Justices’ Advice

In response to the petition, Constitutional Justice Enny Nurbaningsih advised the Petitioner to simplify his profile and add the 1945 Constitution, the Judiciary Law, the latest Constitutional Court Law, and  the Lawmaking Law to describe the Court’s jurisdiction over the case.

She also highlighted the Petitioner’s legal standing as he had not elaborated the constitutional impairment he suffered due to the enactment of the norms and the causality between them.

“Those must be elaborated and added so that the Petitioner’s qualification and impairment in this case be made apparent. In essence, the Petitioner wishes to include the expert who make a statement in a criminal case, so it was reinforced by the matters that made protection over experts not included. In addition, pay attention to the norms before and after this article since they are usually interconnected,” she explained.

Meanwhile, Constitutional Justice Manahan M. P. Sitompul recommended that the legal standing be revised because the Petitioner asserted that he is a citizen who works as a lecturer, so he must implement the three pillars of higher education. Thus, his impairment would be specific. Therefore, his legal standing must be explained to show that he has often given statements at criminal trials. “Then, the posita has not contrasted the principal norm and its elucidation, so that the unconstitutionality is apparent,” he said.

Next, Constitutional Justice Daniel Yusmic P. Foekh added that the Petitioner would need to observe whether the ‘expert’ in question is only regulated in the a quo Law or also in other norms or paragraphs. Since this protection could impact on the right to immunity, it should be compared to similar provisions in other countries. “Why should experts be protected? If the Petitioner has concern as he also make statements as an experts at trials, try to observe it in other countries, there might be similar provisions,” he said.

Before concluding the session, Justice Foekh announced that the Petitioner had 14 workdays to revise the petition and submit it to the Registrar’s Office by Monday, December 5, 2020 at 14:00 WIB. The Petitioner will be notified of the schedule for the next hearing.

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Raisa Ayuditha
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/22/2022 10:01 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, November 21, 2022 | 16:40 WIB 84