Protection for Experts Regulated in the Considerations of the PSK Law

The ruling hearing for the judicial review of Law No. 31 of 2014 on Witness and Victim Protection, Tuesday (1/31/2023). Photo by MKRI/Panji.

Tuesday, January 31, 2023 | 17:13 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) rejected the entire petition 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). the petition filed by Muh. Ibnu Hajar Rahim. The ruling hearing for Decision No. 109/PUU-XX/2022 took place on Tuesday, January 31, 2023.

Constitutional Justices Arief Hidayat and Enny Nurbaningsih took turns reading out the Court’s legal considerations. Justice Enny said the Criminal Procedure Code only defines expert testimony as special expert knowledge on a subject. Experts are needed in trial process, including in criminal cases, to shed light on a particular legal event. An expert must meet certain criteria to keep the information objective, impartial, and having integrity against any influence from the party who request their expert information, and to be accountable to the nation, state, and God Almighty.

Based on these considerations, experts are given the freedom to express opinions according to their expertise but not in the context of conveying facts. As such, experts would not feel any threat which witnesses, victims, and informants in a criminal case typically feel.

Based on Article 184 paragraph (1) of the Criminal Procedure Code, an expert testimony should have a great evidentiary value but will not necessarily be used by the judge for their consideration. Thus, it is more of a positive and constructive tool for judges to determine the truth of a case. Article 10 paragraph (1) of the PSK Law, Justice Enny added, essentially emphasizes the protection of witnesses, victims, defense witnesses, and/or informants so that they cannot be prosecuted legally, both criminally and civilly, for any testimony unless it is not given in good faith.

“Therefore, if Article 10 paragraph (1) of the PSK Law are changed by inserting the word ‘expert’ as requested by the Petitioner, it would in fact damage the system and main substance in the norm relating to other articles in the PSK Law,” Justice Enny said on the Petitioner’s challenge of Article 10 paragraph (1) of the PSK Law and its elucidation.

Justice Enny further stated that the Petitioner’s petition had been accommodated in the considerations of letter b of the PSK Law, which reads, “in order to increase a comprehensive disclosure effort of a criminal act, especially organized transnational criminal act, it is required to provide protection for justice collaborators, informants, and experts.” It is also explained in the general provisions of the PSK Law

Experts Must Be Protected

Meanwhile, Constitutional Justices Manahan M. P. Sitompul and M. Guntur Hamzah had a concurring opinion. Justice Manahan asserted that the protection of experts is regulated in several articles in the PSK Law, such as Article 5 paragraph (3) and Article 28 paragraph (3. However, Article 10 of the PSK Law there shows inconsistency as experts are not listed as subjects who receive protection from criminal and civil lawsuits.

“Therefore, it is appropriate that the protection of experts from lawsuits, both criminal and civil, is included in the scope of this article to emphasize the consistency and coherence of norms in the spirit of protecting witnesses, victims, and experts,” Justice Manahan said.

Next, Constitutional Justice M. Guntur Hamzah asserted that the legal subject of the PSK Law must be expanded in line with legal developments in society. This can be seen in the general provisions of the PSK Law and Article 9 paragraph (1) letter d point 2 of Law No. 28 of 1999 on State Administrators Clean and Free of Corruption, Collusion, and Nepotism. The absence of any mention of ‘experts’ in Article 10 of the PSK Law needs to be explored further by listening to the Government and the House’s statements to find out the original intent of this norm because, he explained, based on the consideration and general provisions of the a quo norm and Article 28 paragraph (3) of the PSK Law, the Witness and Victim Protection Agency (LPSK) has provided protection to experts.

“So, experts should be [protected from] prosecution so that the position of ‘expert’ in this norm complements and aligns with protection for experts,” he added.

Also read:

Protection over Experts Who Give Statements in Criminal Cases Questioned

Criminal Law Expert Strengthens Background to Challenge PSK Law

At the preliminary hearing on Monday, November 21, 2022, the Petitioner asserted that the norms were uncertain, unfair, and discriminatory as they only protected witnesses, victims, justice collaborators, and/or informants from criminal or civil lawsuits after giving testimony or statement, but did not provide the same protection to experts who give statements in criminal cases, who could be sued for their statements as experts during investigation.

This is despite statements by experts being categorized as 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). 

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

Translation uploaded on 2/2/2023 11:10 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.

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