Constitutional Justice Suhartoyo reading out the Court’s legal considerations at the ruling hearing for the judicial review of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP), Wednesday (11/30/2022). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the entire material judicial review petition of Article 54 of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) on Wednesday, November 30, 2022. The pronouncement hearing of Decision No. 61/PUU-XX/2022 was presided over by Chief Justice Anwar Usman and the other constitutional justices. “[The Court] rejects the Petitioners’ petition in its entirety,” the chief justice read out the verdict.
Reading out the Court’s legal considerations, Constitutional Justice Suhartoyo in stated that it is important to regulate witness advocacy in the examination of criminal cases. However, is not properly regulated by Article 54 of the KUHAP, which only regulates legal assistance for suspects or defendants. “Therefore, the Court is of the opinion that Article 54 of the KUHAP does not lead to legal uncertainty nor does it conflict with Article 28D paragraph (1) of the 1945 Constitution,” Justice Suhartoyo said.
In its legal considerations, the Court also asserted that, in order to prevent intimidation and arbitrary actions that could violate the witnesses’ human rights and thus lead to the failure to achieve the objective of criminal justice, i.e. material truth, provisions on witnesses and witness advocacy must be regulated in a separate chapter or subchapter in the KUHAP. The House delivered statement that the revision of the KUHAP had been included in the list of the 2020-2024 national legislation program (Prolegnas) No. 294.
“So, in order to provide guarantee of protection and legal certainty for witnesses, it is important for the legislature to revise the KUHAP to include material on the procedure for examining witnesses and legal assistance for witnesses in a separate chapter or subchapter,” Justice Suhartoyo explained.
Also read:
Deemed Restrictive, Criminal Procedure Code Challenged by Advocates
Petitioners of Criminal Procedure Code Revise Petition Title
Witnesses’ Human Rights
In response to the Petitioners’ assertion that the KUHAP had not stipulated legal assistance for witnesses, the Court emphasized that it is only one implementation and protection of human rights as a constitutional provision in the 1945 Constitution, and the Court asserted that suspects, defendants, and witnesses should have the right to legal protection. In response to the Petitioners’ concern that witnesses may potentially be declared suspects, the Court emphasized that law enforcement must apply the principles of presumption of innocence and equality before the law and witness examinations must be carried out in accordance with proper procedure and respectful of the witnesses’ human rights.
“Therefore, human rights protection for witnesses is not only carried out by legal advisers (advocates), but also by other law enforcers as representatives of the public interest in criminal law enforcement, including those who carry out examinations at the investigative and prosecution stages,” Justice Suhartoyo said.
Also read:
Criminal Procedure Code Guarantees Rights of Suspects and Defendants
House, Police, KPK’s Views on Legal Assistance during Examination
Advocates’ Code of Ethics
The Court also asserted that legal protection, especially advocacy, for witnesses should not be the same as that for suspects or defendants, since witnesses are not legal subjects that can be subject to coercive action, which may result in legal deprivation of liberty or goods, as is the case with suspects or defendants. Therefore, advocates can provide limited legal assistance to witnesses at the examination stage, while witnesses are obligated to convey facts that they have witnessed freely without pressure. An advocate is necessary to ensure that the witness examination complies with existing procedure.
In addition, advocates can also ensure that there is no intimidation and arbitrary actions by law enforcers that could violate the witnesses’ rights when giving testimony. In turn, they may not influence the witnesses’ testimony and must uphold integrity and code of ethics.
“So, legal assistance for witnesses by advocates in the examination of criminal cases is something that is important to regulate, but the material referred to is not properly contained in Article 54 of the Criminal Procedure Code. Because Article 54 of the Criminal Procedure Code specifically regulates legal assistance for suspects or defendants. Therefore, the provisions of the norms of Article 54 of the Criminal Procedure Code do not create legal uncertainty and do not conflict with Article 28D paragraph (1) of the 1945 Constitution as argued by the Petitioners. Thus, the petition of the Petitioners has no legal grounds in its entirety,” said Suhartoyo.
Also read:
Jamin Ginting: Witness and the Reported Have Right to Legal Assistance
Petitioners’ Experts Explain Advocates’ Role in Criminal Justice System
Peradi’s Expert: All Parties Entitled to Same Protection
Octolin H. Hutagalung, Muhammad Nuzul Wibawa, Imran Nating, and other petitioners, who are advocates, challenged 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 believed that in a criminal case, advocates were often hired to assist someone who reports a crime, the reported, a witness, a suspect, or a defendant. They believed that the enactment of Article 54 of the KUHAP had led to legal uncertainty for advocates in performing their profession since there were no provisions in the KUHAP that regulated 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 12/1/2022 15:15 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.
Wednesday, November 30, 2022 | 15:56 WIB 236