11

9. That in consideration of the Act No. 13 of 2006

on Witness Protection and the Victims is stated,

" that one of the valid evidence tools in the criminal justice process

is the Witness and/or Victim's description. that heard, viewing, or

experienced its own occurrence of a felony in search effort and

found the clarity on criminal acts committed by the perpetrator

criminal acts ";

Also in Section 1 (1) Act Number 13 of the Year

2006 of Witness Protection and Victims Protection:

" Witnesses are persons who can provide information in the interest

inquiry, investigation, prosecution, and examination at the hearing

the court of a criminal case He heard it himself, he saw

himself, and/or he was alone ".

In addition to it was stated in Article 5 of the Law No. 13 of the Year

2006 on Witness Protection and Victims:

(1) A Witness and The victim was entitled to:

a. obtain protection for the security of the family's pribad, and the property

the object, as well as free from the Threat with respect to

the testimony that will, be, or have been given;

b. take part in the process of selecting and determining the form

protection and security support;

c. provides the caption without pressure;

d. got a translator;

e. free from a question that is rodent;

f. get information on the development of the case;

g. get information about the court ruling;

h. knowing in the case of the convict was released;

i. got a new identity;

j. get a new residence;

k. obtaining the replacement of the transportation costs according to

needs;

l. get legal advice; and/or

12

m. obtaining assistance for temporary living expenses up to the time limit

protection ends.

(2) The right as referred to a paragraph (1) is provided to the Witness

and/or the Victims of a criminal offence in certain cases appropriate

with the LPSK decision.

10. That to provide a comparison of protection against Witnesses

in some countries can be seen in the table below:

No.

Country Name

Protection to a Rule Witness

set the Status

Suspect

1. United States

Protection of dismissals, demotions, temporary stops, threats, disorders and acts of discrimination.

Whistleblower Protection Act 1989

Not

2. South Africa Protection of occupational detriment or loss in relation to office or job;

Article 3 Protected Disclosures Act No. 26 Year 2000

Not

3. Canada Protection of Jobs that provides disciplinary punishment, demoted the rank, fired or committed any harm in terms of employment with the purpose of preventing workers from providing information to the government or to the end of the term. Legal enforcement agencies or to reply to workers who provide information.

Section 425.1 Criminal Code of Canada

4. Indonesia Witness Protection and Victims aim to provide a sense of security to the Witnesses and/or Victims in the criminal justice process.

Witnesses, victims, and prostitutes may not be prosecuted for reports, testimonies that will, moderate, or have been given it.

Article 4 Act No. 13 Year 2006

Article 10 paragraph (1) Act No. 13 of 2006

Article 10 of the paragraph (2) The witness who is also a suspect in the same case may be prosecuted.

5. New South Wales, Australia

-Identity is kept secret;-Protection of the follow

reprisals;-No accountability

criminally or perdata;-Protection of "defame"

(defamation claim)

(defamation claim)

(defamation claim)

(defamation claim) either);

-The conditional protection if the name is released to the media;

Section 20 and 21 Protected Disclosures Act 1994

Not

6. United Kingdom

-Should not be fired for being a whistleblower

-Protection of victimisation and adverse treatment/damages

Article 1 and 2 Public Interest Disclosure Act 1998

No.

13

11. That specifically about the position of a witness who is also

a suspect in the same case is set up in Article 10 of the paragraph (2) Invite-

Invite Number 13 Year 2006 on Witness Protection and Victims,

stated:

" A witness who is also a suspect in the same case could not

be released from criminal charges if he turns out to be legally proven and

convinces the guilty, but his testimony can be considered a consideration.

judges in easing of the criminal to be dropped ";

12. That the existence of 4 Articles 10 verses (2) can be said suddenly

appears and set something not set in Law Number 13 of the Year

2006. Article 10 of the paragraph (2) of this law does not have a password that

is clear and strong with the matters governed by Law Number 13 of the Year 2006,

in particular in the sections before Article 10;

13. That the norm and or legal problems are governed by Article 10 of the paragraph (2)

Act No. 13 of 2006, known in the doctrine and practice of law in

countries that are of the Anglo-Saxon system as "Plea

Bargaining". In the plea bargain practice is done by making

a statement of guilt or known as "guilty plea". With

This guilty statement is hereby a defendant will get a reduction

sentence (Andrew Ashworth: 2000, Sentencing & Criminal Justice, third

edition, Butterworths, h. 24); because of a plea bargain, as

is proposed by John Sprack, at least four

understanding, " It can mean an agreement between the judge and the accused

that if he pleads guilty to some or all of the offences charged against him the

sentence will or will not take a certain form ........ Second, plea bargain

can mean an undertaking by the prosecution that if the accused will admit to

certain charges they will refrain from putting more serious charges into the

indictment or will ask the judge to impose relatively light sentence .......

Thirdly, plea against may refer to the prosecution pleads with the

defence that if the accused pleads guilty to a lesser than they accept the

plea .... Lastly, it may refer to the prosecution note not to proceed on

one or more counts in the indictment against the accused if he will plead

guilty to the remainder " (John Sprack: 2002, EMMINS ON CRIMINAL

PROCEDURE, Ninth Edition, Oxford, h. 251);

14

14. That the legal regime that governs the position of witness and the victim is very

in contrast to the legal regime that governs "witnesses who are also suspects

in the same case". Legal provisions governing witness rights and

victims are clearly and expressly set in Law Number 13 of the Year 2006,

whereas the legal regime that governs the position of the witness as well

being a suspect in the same case is regulated by the KUHAP Act No. 8

In 1981, limited to providing protection against interests

suspects or defendants, have not given any protection of interest

witnesses or victims of criminal conduct;

15. That the provisions of the position of a witness were also

the suspect in the same case according to Article 10 of the paragraph (2) Invite-

Invite Number 13 Year 2006 on Witness Protection and Victims,

in fact Contrary to the provisions of Article 27 of the paragraph (1) of the Constitution

1945, which states:

" All citizens are subject to both in the law and

the government and shall uphold the law and the government with

no except for ";

article 28D paragraph (1) of the 1945 Constitution, which states:

"Everyone is entitled to the recognition, assurance, protection, and

fair legal certainty as well as the same treatment before the law";

Article 28G paragraph (1) of the 1945 Constitution, stated:

" Everyone is entitled to the personal self-protection, family, honor,

dignity, and property that under his power, as well as entitled to

the safe and protection of threat of fear to do or

not do something that is a birthright ";

Article 28J paragraph (2) of the 1945 Constitution states,

" In exercising its rights and freedom, each person is subject to submission

to the restrictions set forth with the legislation with

The intent is solely to warrant recognition as well as the respect of

rights and freedom of others and to meet fair demands

in accordance with moral considerations, religious values, security, and

Public order in a democratic society ";

15

16. The recognition, warranty, protection, and legal certainty of a fair

as referred to above also includes recognition, assurance, and

protection of the universal applicable legal principles. One

the legal asas of its existence in the Indonesian legal system

is protection against a witness;

17. The applicant has been designated as a suspect and

detained by the Indonesian National Police based on the Warrant

The arrest of May 10, 2010 has only been sourced from a witness description

that became the The suspect in the case that the applicant reported to

the Commission III of the House and the Legal Mafia Eradication Task Force were supported

by another tool of evidence, or in other words the applicant has been set

as the Suspect, arrested, detained and bewitched as Suspect by

The Polri Investigator without being based on the tool Enough evidence. (vide Proof

P-9);

18. That thus proved that the arrest, detention

and the inquiry of the applicant as the suspect by the Polri Investigator were

based on the "conditioning" of the situation by investigators and lies that

carried out by checked at the request of investigators, and not based on

valid evidence according to law;

19. That even though earlier the applicant had requested protection

to the LPSK in accordance with the Letter of the applicant on 4 May 2010 (vide proof

P-6), however the applicant remains arrested and held by the Investigator

Barescream, for reasons that the Investigator's actions have been

in accordance with Article 10 of the paragraph (2) Act No. 13 of 2006, which

states,

"A witness who is also a suspect in the same case cannot

be released from criminal charges if he turns out to be legally proven and

convinces the guilty, but his testimony can be considered consideration

the judge in easing the criminal to be dropped";

20. According to Article 27 of the paragraph (1) of the 1945 Constitution, which states:

"All citizens simultaneously in the law and

the government and shall uphold the law and the government with

there is no exception";

16

Article 28D paragraph (1) of the 1945 Constitution states,

"Everyone is entitled to the recognition, guarantee, protection, and

fair legal certainty as well as the same treatment before the law".

First, it must be as soon as possible the whistle blower is given protection. This

is meant to have he not been killed by his accomplices. Second, information from

whistle blower could be made sufficient initial proof for

uncovering the crime syndicate. Third, if the whistle blower

provides information so that it can dismantle the crime syndicate

up to its roots, it is used as an eraser reason

criminal charges.

3. The provisions of Article 10 of the paragraph (2) of the Act a quo do not meet the principle

protection against a whistle blower because it is concerned

remains to be sentenced to death when involved in such crimes.

Meaning, on one side of the section it provides protection, but on the other side

whistle blower does not get bail to be exempt from prosecution

criminal of the given testimony. Thus, Article 10 (2)

Act No. 13 of 2006 does not provide any legal certainty

to whistle blower.

Interpretation Gramatikal

1. The meaning of the provisions of the Act is interpreted by means of addressing it

according to the everyday common language

2. The provisions of Article 10 of the paragraph (2) Act No. 13 of 2006

are ambiguous, do not meet the lex certa principle in penal law and

tend to be contra legem with the provisions of Article 10 of the paragraph (1).

3. If it is grammatically elaborated, it is a tricative three. First,

a witness who is also a suspect in the same case will

54

has a legal standing (legal standing) in the Test request

The Act against the Constitution of 1945, then first must

explain and prove:

a. Qualify as the applicant in a a quo

as referred to in Article 51 of the paragraph (1) of the Act

Number 24 of 2003 on the Constitutional Court;

b. The rights and/or its constitutional authority as intended

in "The explanation of Article 51 of the paragraph (1)" is considered to have been harmed by

The enactment of the Undang;

Regarding the parameters of constitutional losses, the Constitutional Court

has given the definition and limitations on constitutional losses

arising from the enactment of an Act must meet 5

(five) terms (vide Verdict Case Number 006/PUU-111/2005 and

Perkara The number 011 /PUU-V/2007) is as follows:

a. the rights and/or constitutional authority of the applicant

provided by UUD 1945;

b. that the permissions and/or constitutional authority of the applicant

are considered by the applicant to be harmed by an Act

which is tested;

c. that the loss and/or constitutional authority of the applicant

is referred to Specific (special) and actual or at least to be

potential that the reasonable reasoning can be guaranteed

occurs;

d. Due to (causal verband) between the loss and

the enactment of the test-moveed Act;

e. It is possible that with the application of the request then

the loss and/or. Controlled constitutional authority is not

will or no longer occurs.

If all five terms are not met by the applicant in

the Test case a quo, then the applicant does not have

Legal standing (legal standing) as the Applicant.

Respond to the applicant a quo, the House of view

that the applicant must be able to prove beforehand whether it is true

The applicant as a party that considers the right and/or authority

55

its constitutionality was harmed over the expiring provisions

to be tested, in particular in contesting the loss

against its rights and/or its constitutionality authority as impact

of The provision of the provisions is expected to be tested.

Against the legal standing (legal standing), the House

submitted fully to the Chairman/Assembly of the Court of Justice

The mulya Constitution to consider and assessing whether

The applicant has a legal position (legal standing ) or not

as provided by Article 51 of the paragraph (1) of the Act on

Constitutional Court and under the Constitutional Court's Decree

Perkara Number 006/PUU-111/2005 and Perkara Number 011 /PUU-V/2007.

2. Materiel testing of the Act No. 13 of 2006

about Witness Protection and Victims (subsequently called Act

Number 13 of 2006)

Against the Applicant's view as described in

Request a quo, the House of Representatives conveyted the following statement:

1. That to understand the "spirit" of the provisions or norms that

is contained in Article 10 of the a quo, need

pay attention to the formulation of the formulation of the section. The meaning that

is present in the provisions of Article 10 of the paragraph (2) of the Act a quo

is important to understand. The formulation of the formulation provision

Article 10 of the a quo related to the Witness Protection that

is then assigned to be a suspect is not understood subjectively,

but the approach must be from the angle Objective view of view to

deeds. Debate on the formulation of the provisions of Article 10 of the paragraph

(2) it can be studied/read in Treatise Meeting Discussion of the bill on

Witness Protection and Victims of the Working Committee Meeting, Wednesday 24 May

2006 may be delivered as berikut: " DIM Number 53 is Article

10: a witness who is included as this suspect is also a witness as well,

but the suspect is also equally inextriable from criminal charges

if he is proven lawful and reassured guilty, however

His testimony can be made judge consideration in easing

the criminal to be dropped. That removes the Pernerintab proposal at

top. About not being able to get charged with a criminal and a civil service. Agreed

56

yes? If this is what it takes, sir? Because he's a witness and can

also be the perpetrator, if you see the rest of the time. This is a witness, so a suspect

also, KPK when we take it from the prosecutor or the police force, end-

end so again. But whatever the story is, we agree on the basic idea

is self-reliance, only the implementation is under the police

until now it has the tools to protect the witnesses. That's me

kira. Thank you. " (vide Book I Process Processing Bill on

Witness Protection and Victims, General Secretariat of the House of Indonesia, Jakarta,

things. 515).

2. That the background of the provisions of Article 10 of the bill

about Witness Protection and Victims as described

that, the response of a Witness may also be status as

The suspect, so for reasons Even if

The status of a Witness is of course unable to be released from criminal charges

If the question is legally proven and assured

guilty. Despite the testimony of a Witness who becomes

The suspect may be considered a judge to lighten

the criminal to be dropped on him. On that basis, the House

argues that the provisions of Article 10 of the paragraph (2) Invite-

Invite a quo, in relation to the provisions of Article 10 of the paragraph (1) Invite-

Invite a quo contain clear and certain legal norms. to

provide legal protection to Witness, Victim and Report,

that is that in essence a Witness, Victim, and Report

is granted legal protection for not being legally prosecuted

both criminal and criminal data on reports, testimonies that will,

moderate, or have been provided. However, this provision must be defined

that the Witnesses, the Victims, and the Report are not caught in the

the events of the criminal acts and the data that it has reported. By

therefore the provisions of Article 10 of the paragraph (2) of the a quo of course

do not apply to the Witnesses, Victims, or Enquiry while not involved

with the criminal conduct being carried out the investigation or

The investigation.

3. That the applicant in the a quo request did not elaborate

includes the por in the context of protection against the whistle-blower which

has been widely practiced in several countries. But as a point

the beginning, the regulation still looks to LPSK to protect the

buoy.

3. The provisions of this legal protection are governed in Article 10 Law Number

13 Year 2006 stated that:

(1) Witness, Victim, and Report cannot be legally charged

criminal nor perdata on reports, testimonies which will, be,

or have been given it.

(2) A witness who is also a suspect in the same case cannot

be released from criminal charges if he turns out to be legally proven

and convinces the guilty, but her testimony can be made

a judge ' s consideration in easing the criminal who will dropped.

(3) The provisions as referred to in paragraph (1) do not apply to

Witnesses, Victims, and Statements That Give A Description Not to

good faith.

4. Under this section then the Act provides protection

the laws of 2 (two):

(1) against the Witnesses, Victims, and reports due to reports, testimony that

will, be, or have been given it, referred to in the case of the law. "por por"

by the Act is the person who provides information to

law enforcement regarding the occurrence of a felony.

(2) The witness is also a suspect in the same case.

5. Legal protection in the first category is an immunity that

is given to witnesses, victims, and the por for not being prosecuted

the law of both criminal and civil rights over the report, testimony that will,

medium, Or has been given it. However, this does not apply to witnesses,

victims, and the labeling who provided the caption is not in good faith.

According to the Explanation The Act referred to " give

62

The caption is not in good faith " in this regard among others gives

false captions, perjury, and evil facification.

6. This provision is a novelty in the criminal law

Indonesia to be able to apply to all criminal cases. Previous

the protection provisions in this category were only limited given to

money laundering cases. It is also limited to a legal context

criminal. Whereas the new provision applies also in the legal region

the data.

7. In the implementation of some countries these provisions are commonly referred to as

immunity or immunity given to the plow or witnesses

which provides the apparatus (disclosure) to the apparatus

law enforcement Regarding the crimes he was aware of and above

this information would certainly help the law enforcement authorities to

investigate or prosecute the perpetrators in court. This provision

constitutes a shield for criminal offenses.

II. The Importance Of The Witness Protection Of Collaborators (Crown Witness)

8. Protection in the second category, which is set in Article 10 of the paragraph (2)

is the legal protection given to the Witness who is also the suspect.

Yakni a Witness who is also a Suspect in the same case

does not can be released from criminal charges if he turns out to be proven

legitimate and assured of guilt, but his interest may be made

a judge ' s consideration in easing the criminal to be dropped.

In general referred to as: crown witness, a witness to a collaborator,

a collaborator of the law, a state witness, "supergrasses" and pentiti (Itali language that

means "those who have been tobate"). Or a minor offender.

9. The Act does not explain a more detailed intent of this,

but it can be interpreted that witnesses in this ketegory are status as

witnesses who are also suspects who helped reveal the criminal case,

may be:

a. provide a description in the trial for incriminating the accused

others;

b. provide information on the whereabouts of the evidence/evidence tool or

any other person who is already or who is not

disclosed;

63

c. and other contributions impacting the apparatus of the apparatus

law enforcement; and

d. The phrase is "in the same case" in the formulation of the above section. If

means this phrase is only in cases where the witness position

is also at the same time the suspect is in the same case.

10. The inclusion of this provision in Law No. 13 Tabun 2006 is not without

reason. The emergence of severe criminal cases thrusts a lot of challenges

for investigators and prosecutors. Most of these cases involve

a criminal act committed by some of the perpetrators who have

developed a strong bond with each other over a period

in particular, either through a personal connection or connection business or through

a society of professions. Such a bond is often mutually beneficial that

will cause the perpetrators to be united in the face of

the investigation or the possibility of a claim to protect

their interests.

11. With respect to the basic nature of the cases organized crime or white

colar crime, then these cases are more difficult to prove than with

another criminal criminal case: Perscales of obstruction. The following, which

is often found to include:

It is difficult to know who is the main culprit of his crime;

In most cases, those who know about the crime

like this are also related in it, and get profits from

the crime, so it ' s very unlikely to report it to

Authorities;

Most crime offenders use a link between some

The key perpetrator-and the basic nature of a relationship like this can only

be proven through the help of the perpetrator involved in the relationship that

referred to;

In most cases, it is very difficult or even there is no "place

case of case" or minim forensic evidence to help

identify the perpetrator;

The physical evidence of large crimes, such as transaction documents and assets that

purchased with the result of corruption, can hidden, destroyed, diverted,

or entrusted to another person;

64

In many cases, the perpetrator is the ruling person, who

may use their influence to interfere with the inquiry,

intimidating the witnesses, or obstructing witnesses in collaboration with

authorities law enforcement;

Often new lawmakers know about the following

The crime is long after it happened, so that the trail is hard to escape,

The evidence is hard to track, and the witnesses have been paid or have

an opportunity to make an alibi-a fake alibi.

12. In the case of corruption the Investigators and the Prosecutor in Indonesia also face

additional impediation in investigating and prosecuting such cases.

The reality that the economy in the country is very based on money

cash make suspicious cash transactions increasingly

difficult. In addition, the corruption of the government's ocnum aparatur in

the country is often seen vertically, with the participation of the

officials at a higher level who have a strong enough position to

persuaded officials who were at a lower level to not work

same, or otherwise to obstructing the investigation.

13. Due to problems inherent in corruption cases

the public, most prosecutors on large corruption cases in some countries

depend partly on the cooperation of those who have

direct knowledge about this crime and their involvement in

in it. Aside from corruption cases, crime case handling

organized, corporate accounting fraud cases, and also many types of

other complex crimes involving many defendants highly

depend on the evidence provided by those who have

direct knowledge of this crime.

14. Sometimes this "insider" is a perpetrator who is involved in the crime

in his own way. The person in can provide proof that

is important about who is involved, what the role of each perpetrator is,

how the crime was committed, and where other evidence could be found.

In addition to providing clues to the investigators, the person in this

sometimes participate in an undercover investigation, recording the evidence

the sound or the video as an important evidence in the prosecution. Akhimya, person

in this can be a very important witness during the trial,

65

gives evidence as the first person, an eyewitness to the crime and the top

the activities of the defendants. To persuade people in order to work

equals the investigation and prosecution of the other perpetrators in the act

This criminal, then needed using some kind of legal device

was able to break through the deadlock.

15. Since a person who has participated in a criminal act

in connection with a crime organization has knowledge

it is important about organizational structure, operating methods, activities and relationships

with Other groups are both local and international. Then more

the country has now formed a policy or policy for

facilitating the cooperation of those individuals in the investigation of the case

involving organized crime. These individuals are known

with a number of names, including long-running witnesses, crown witnesses,

witnesses to collaborators, legal collaborators, state witnesses, " supergrasses '' and

pentiti (Iope's language) "those who have been tobats").

16. Based on experts ' opinions, there is no associated moral element in

his motivation for working together. Most of them work together

doing so in hopes of receiving immunity or at least

a reduction in prison sentences and physical protection for himself and

his family. In the rules in several other countries, people like this

are the main participants in the witness protection program. The combination

leniation in (or even immunity and) prosecution with

witness protection is considered to be a very powerful tool in

the success of the prosecution of organized crime.

17. But in practice it can indeed lift some ethical issues

because it can also be seen as a gift-giving to criminals

with the release of punishment from its criminal acts.

18. To discuss these concerns, the "benefits" granted

a number of legal systems to collaborators were not fully immunity from

his involvement in felon, but rather a lighter sentence

that only could be was given at the end of his cooperation in the process

the trial. Regulations and policies on a number of countries clearly

separate acceptance in the witness protection program from profit

anything that may be given to participants by a public prosecutor or

66

by the court with regard to previous criminal acts, and

the rules and policies state that the legal collaborator

needs to carry out the prison sentence for his criminal conduct.

III. The background of the formulation of Article 10 of Law No. 13 of 2006

19. At first in the Witness Protection bill and the Victims, Article 10

is only a 1-paragraph list (not to be contained in three verses like

in the current Act):

"A Witness who is included as a suspect in a case that is not available to the victim. equal

cannot be released from criminal charges if he turns out to be proven

legitimately and convinces the guilty, but his testimony can be made

The judge ' s consideration in easing the criminal will rationed".

The entry of this passage in the bill was motivated against its growth. various

concepts such as Plea Agreement in some Countries. Previously in the bill

community initiatives (the proposed Sentra HAM UI and ICW) have included

this protection and looks the formula is almost the same as the proposed

by Baleg House in the bill, namely:

Article 11

(1) A witness who is also the defendant in the same case is not

may be acquitted of criminal charges if he is found guilty

valid and assured, but his testimony may be considered

the judge in easing the criminal to be dropped

(2) The provisions in the paragraph (1) above are not applicable for felonacts that

carried out with violence and criminal acts related to

a grave violation of human rights.

20. In its subsequent development through DIM, the Government later

proposes a redactional revision of Article 10 to:

"A witness who is also a suspect in the same case cannot

be released from prosecution criminal if he turns out to be legally proven and

convinces the guilty, but his testimony can be considered

the judge in easing the criminal to be dropped against him."

21. In a meeting of the Working Committee on the discussion of the witness protection bill and the victims

(Panja) on 31 May 2006, the Panja Meeting approved the formulation of Article 10

with some changes in the sentence being:

67

" A witness who is also a suspect in the same case could not

be released from criminal charges if he turns out to be legally proven and

convinces the guilty, but his testimony can be taken consideration

the judge in easing the criminal to be dropped against him."

22. The panja in the Meeting considers it important to agree to the article

that is due to the initial spirit of protection for witnesses and

victims who have contributed to the disclosure of the crime. The panja

also megaggap that it is unlikely that a witness and also a

suspect can be released from criminal convictions. That would be better if,

The witness contribution was made the basis for a judge to reduce

his sentence according to his contribution. According to the necessary Panja

is merely a provision of punishment reduction on the basis of his cooperation

the witness is concerned in the judicial process.

23. In a parliamentary hearing on June 15, 2006, between Tim Panja

with some experts to receive input in the discussion of the bill,

proposed regarding the need for protection to Whistle Blower,

Hold of facts in this bill and in the discussion of the Panja Meetings

subsequently, on July 6, 2006, which is based on the expert proposal.

The examiner again proposes the inclusion of a new paragraph [paragraph (3)]

in Section 5 which contains the following:

"Witnesses, and Victims, unable to be prosecuted legally both criminal and

the data for the report, the testimony that will, are, or have been given it"

That it is essentially not a bare provision as it is also

has been contained in the Money Laundering Act. But there is

the difference, where in the Protection Money Laundering Act

it is only given to the por whereas in the examination proposal for

the bill is addressed to witnesses and victims. The government proposes that

this provision is indeed an exception and more special.

24. However, concerns in the Panja Meeting due to the emergence of the new

paragraph (3) include the provisions of Article 10 on the witness of this suspect will

have the potential to protect the crime of the person in question, if

the witness It turned out to be a crime. Show the question until

limit when the witness is unable to be prosecuted? It must also be

68

explained. Based on these concerns, Panja later distinguished

earlier in which witnesses were not suspect and status

a suspect who gave his cotributary bare the reward which could be

given to him.

25. In addition, the Panja Meeting also stated necessary to think of the foundation

and its legal theory, lest it violate the principle

The equation in front of the law can be breached with this provision.

But the Meeting of Paja aware of the practical interest aspect then the provisions

it becomes very important to be listed, aside also has been

used in some countries.

26. The Chief Meeting of Panja then proposes that the provisions of paragraph (3) in

Article 5 of the whistle blower be included in Article 10 to

paragraph (1), it is to be based that in principle witnesses and victims that

have exposing a criminal offence cannot be legally prosecuted,

but it needs to be made an exception, a special provision if the witness

turns out to be in the category as the perpetrator in the case

same. Therefore, it is necessary to distinguish which witness which

is not a suspect and the status of a suspect is then Article 10

is changed to paragraph (2), as follows:

Article 10

(1) The witness and the victim, not may be charged with both criminal and

data for reports, testimonies that will, moderate, or have been

provided.

(2) A witness who is also a suspect in the same case cannot

be released from criminal charges if he turns out to be legally proven

and convinces guilty, but his testimony can be made

consideration the judge in easing the criminal to be dropped

against him.

May 31, 2006

"as referred to in paragraph (1) does not apply to the Witnesses, Victims,

and the Report which gives the caption not in good faith".

69

IV. Conclusion and Recommendation

27. Based on the above exposures it must be distinguished between the good formula

in Article 10 of the paragraph (1) and Article 10 of the paragraph (2) Act No. 13 of 2006.

That the formula 10 paragraph (1) is intended for the whistleblers whereas

Article 10 of the paragraph (2) is intended for the witness of a collaborator or with the language

The Act is aimed at the protection of witnesses and suspects

in Same case.

28. The formulation of Section 10 is either in paragraph (1) and paragraph (2) Act No. 13 of the Year

2006 is a very important provision for grant efforts

protection for witnesses or whorings that will contribute to

disclosure of cases criminal who is the mandate of the Institution

Witness Protection and Victims (LPSK). Therefore, the LPSK remains

adhering to the position of Article 10 should remain governed in Law No. 13

2006 of Witness Protection and Victims.

29. The LPSK realized that in its current application, Article 10

is still understood to be differently both by the public and by the authorities

law enforcement in Indonesia. Some of the things that are concerned with

the application of the section are:

a. Regarding Section 10 of the paragraph (1), in any event cannot be prosecuted

legally both criminal and civil rights to the witness of the above

the report, the testimony that will, be, or have been given it? Is

referring to the phrase, "on the report, the testimony that will, be, or have

been given it"? Would trend use of a lawsuit or report

a defamation of defamation or contempt for the por

of some existing cases may be included in that category

above?

b. With regard to Section 10 of the paragraph (2), is there a particular prerequisite to the

the status of this protection applicant (suspect)? In practice,

Which is it better to take precede the tail? Is

the case that was reported in advance or the case in which

a witness is a suspect? Or can both be done

at the same time?

70

30. The above things in practice make it difficult for protection by

LPSK against either the snitch or the suspect's witness, therefore

is required for a new interpretation of the section. We view

MK may provide a more operational interpretation of Article 10.

But we hope such interpretations have to be aligned

with a passion and purpose in the form of Act Number 13 Year

2006 on Witness Protection and Victims.

31. LPSK views Law Number 13 Tabun 2006 must be more previewed

including provisions in this Section 10. Hence the LPSK

has attempted to perform a legislative review of Article 10. Related to

with the plan, the current LPSK has cooperated with some

related agencies in conducting the revision plan Act No. 13 of 2006.

[2.6] Draws That The Applicant has delivered a written conclusion

which was received in the Court of Justice on 2 September 2010

whereas the Government has delivered a written conclusion received in

Heated of the Court on September 6, 2010, which at its point

each remained with its stance;

[2.7] weighed that to shorten the description in this ruling, all

something that happened at the trial be quite appointed in the news of the event

the trial, which is one unitary one inseparable with

this verdict;

3. LEGAL CONSIDERATIONS

[3.1] Draw that the intent and purpose of the a quo plea is to

test Section 10 of the paragraph (2) Act Number 13 of the Year 2006 on

Witness Protection and Victims (Sheet) Republic of Indonesia Year

2006 Number 64, Additional Gazette Republic of Indonesia No. 4635,

subsequently called Act 13/2006) against the Constitution of the Nation

Republic of Indonesia in 1945 (later called UUD) 1945);

71

[3.2] weighed that before entering the subject of the application, the Constitutional Court

The Constitution (subsequently called the Court) was first going

consider:

a. Court Authority to check, prosecute and disconnect

plea a quo;

b. Legal standing (legal standing) The applicant to apply for

a quo;

Constitutional authority

[3.3] weighing that under Section 24C of the paragraph (1) of the 1945 Constitution and the Article

10 verses (1) The letter of a bill MK, as well as Article 29 paragraph (1) letter a Law No. 48 Year

2009 on the Power of Justice (State Sheet of the Republic of Indonesia

2009 No. 157, Additional Gazette of the Republic of Indonesia Number

5076, next called Act No. 48/2009), one of the authorities

Constitutional Court is to prosecute on the first and last level that

the verdict is final to test the legislation against the Act

Basic;

[3.4] Draw that the applicant's plea is to test

the constitutionality of the norm Article 10 of the paragraph (2) of the Act of 13/2006 against the Constitution of 1945, which

becomes one of the authority of the Court, so that the Court

is authorized to examine, prosecute, and cut down the a quo;

The Occupation of Law (Legal Standing) The applicant

[3.5] A draw that is based on Article 51 of the paragraph (1) of the MK Act and

The explanation, which may apply for testing of the Act

against the Constitution of 1945 is those who consider the rights and/or authority

the constitutionality given by the Constitution of 1945. harmed by the prevailing

Act, i.e.:

a. Individuals in Indonesia (including groups of people

have common interests);

72

b. the unity of the indigenous law society as long as it is alive and in accordance with

the development of the society and the principle of the Republic of the Republic of Indonesia

which is set in Undang-Undang;

c. the public or private legal entity; or

d. state agencies;

Thus, the applicant in testing the Act against the UUD

1945 must explain and prove first:

a. The name of the supplicant is: "

. the constitutional rights and/or constitutional authority granted by the Constitution

1945 resulting from the enactment of the legislation

testing;

[3.6] In a draw that the Court since the Constitutional Court's termination

Number 006 /PUU-III/2005 dated May 31, 2005 and the Constitutional Court

Constitution Number 11 /PUU-V/2007 dated September 20, 2007, as well as the ruling-

The subsequent ruling is the loss of rights and/or authority

constitutionally referred to Article 51 of the Article 51 paragraph (1) the MK bill must meet

five terms, that is:

a. the rights and/or constitutional authority of the applicant given by

Constitution of 1945;

b. The rights and/or constitutional authority by the applicant are considered

aggrieved by the enactment of the legislation, which the testing is required;

c the constitutional loss must be specific (special) and actual or

At least a potential that according to reasonable reasoning can be confirmed

will occur;

d. A causal link (causal verband) between the intended loss

and the applicable law-moveed act;

e. It is possible that with the request of a request then

constitutional losses such as those that are postulate shall not or no longer occur;

[3.7] Draw that based on the description as

paragraph [3.5] and [3.6] at the top, next the Court will consider

73

regarding legal standing (legal standing) the applicant in the plea a quo

as follows:

[3.8] Draws that on the applicits of the applicant postulate as

the individual of the Indonesian citizen which has a constitutional right that

set in the 1945 Constitution:

Article 27 paragraph (1) states, " All citizens together

the position is in law and government and must uphold the law

and resolute (expressis verbis) of the exctional nature of Article 10 of the paragraph (1), so

the applicable provisions of the Article 10 of the paragraph (1) must be interpreted to be not valid

against witnesses who are also suspects in the same case, also the por

is not in good faith. However, the participation of the witness is also a suspect,

if in the process of the law it is legally proven and

convinces, the witness is indeed not exempt from prosecution

criminal, but His testimony in uncovering a criminal act is granted

award, which is as considered in the subtraction

pidananya.

[3.15] Draw that based on the description in such consideration in

over related to the dalil-dalil in the applicant's request then the issue

the law to be answered by the Court is, whether the provisions of Article 10

paragraph (2) which gives only the award (reward) against the witness participation

that is also a suspect whose interest has helped in

the disclosure of the criminal offence only as a consideration of criminal reduction,

but does not release him from the lawsuits against the principle-

principle:

79

-participation in government as set out in Article 27 paragraph (1)

Constitution of 1945 stating, " All citizens at the same time

in law and government and shall uphold the law. and

The government is with no exception ";

-a fair legal certainty as set in Article 28D paragraph (1) of the Constitution

1945 stating, " Everyone is entitled to the recognition, guarantee,

protection, and fair legal certainty as well as the same treatment at

before the law ";

-deprive the rights of safe and protection of the threat of fear

to do as set in Section 28G paragraph (1) of the 1945 Constitution

states, " Everyone is entitled to the protection of the law. Personal, family,

honor, dignity, and property under his power, as well

entitled to a sense of security and protection from the threat of fear for

commit or not to do something it is a fundamental right ", and

-limiting human rights (human rights) by preventing people do

fair demands according to moral and religious values

as set in Section 28J paragraph (2) of the 1945 Constitution that states,

" In exercising their rights and freedom, each person is mandatory subject to the

the restrictions set out with legislation with intent solely-

the eyes to guarantee recognition as well as respect for rights and freedoms

others and to meet the fair demands accordingly.

moral considerations, religious values, security, and public order in

a democratic society ";

[3.16] Draws, to answer the legal issue of the Court

gives consideration according to the problem as follows:

1. Participation In The Governance

[3.16.1] Draws That The Applicant postulate with the enactment of Article 10

80

paragraph (2) Act 13/2006, the right to participate in law and governance

as defined in Article 27 paragraph (1) of the 1945 Constitution. The rights were lost

since the applicant has been detained by the Investigator for reasons other than as a witness

The applicant has also been set as a suspect. In order to support the control

in addition to submitting the papers/writing, the applicant also proposes the expert Prof. Dr.

Saldi Isra, S.H., MPA., which in the matter specifies, Article 10 of the paragraph (2) of the Act

13/2006 specifically does not benefit on the eradication agenda

the corruption and eradication of the law mafia, because 1) does not provide guarantees

for witnesses and victims; 2) make it difficult to get key witnesses in

settlement of corruption cases and mafia laws (especially those that category

scandal); 3) difficult to dismantle the practices of corruption and mafia in the environment police

law enforcement; and 4) witnesses who provide the caption may well be

suspects. Against the applicant's control, upon divorce of the request

The applicant, the expert on the Government, the Council's description

The People's Representative, and the written testimony of the Witness Protection Society and

Victims, the Court of Justice. argues, that as described in

the consideration of paragraph [3.14], the provisions contained in Section 10 of the paragraph (2) of the Act

13/2006 are provisions that can be defined very clearly and

unequivocal (expressis verbis) that the normative substance is giving

the award ( reward) against the participation of witness who is also a suspect who

his interest has been helpful in the disclosure of a criminal offence with

making it a consideration of criminal reduction. Based on

the substantive provisions, states through the power-forming power-

invite should be deemed to have not to ignore the participation of the citizens who

have contributed to the disclosure A felony. Country

gives the award of its pidanical reduction. How big it is

it reduces the pidation of being handed over to the discretion of the judge who

is controlling it based on his contributions in the participation of uncovering the action

criminal. An award is a choice of legal choice (legal choice) that

81

performed by the state in giving awards to witnesses also

suspects, as well as encouraging public participation of uncovering felon.

In the General Description of Act No. 13 of 2006 mentioned,

" In order to foster community participation to unravel the follow

criminal, need to create a climate that is conducive to giving

legal and security protection to any person who knowing or

found a thing that could help uncover the follow-up criminal

has occurred and reported it to law enforcement ". Based

the description in such consideration, according to the Court of provisions in the Article

10 paragraph (2) Act 13/2006 is not proven to be contradictory with Article 27 of the paragraph (1) of the Constitution

1945;

2. Certainty of Fair Law

[3.16.2] A draw that the applicant has lost the right to

recognition, assurance, protection, and fair legal certainty, as

guaranteed by Article 28D paragraph (1) of the 1945 Constitution As a result of the termination of Section 10 of the paragraph (2) Act

13/2006 In order to support the applicant in addition to submitting evidence

surat/writing also submitted the expert Prof. Dr. Saldi Isra, S.H., MPA., who at

instead explained, Article 10 of the paragraph (2) of the 13/2006 Act contains the potentially formula

embed an interpretation that can harm witnesses and victims

thus eliciting legal uncertainty as opposed to Article

28D paragraph (1) of the 1945 Constitution. Based on the reason for legal and benefit certainty

that, many countries in the world provide protection to witnesses and

victims, such as the United States, South Africa, Canada, New South Wales

Australia, and the United Kingdom by not giving a suspect status to

witnesses, so that witnesses easily opened up and dismantled the crime-

major crimes including corruption. As for the expert Dr. Eddy O.S. Hiariej,

describes Article 10 of the verse (2) of the Act of 13/2006 does not provide a formula

clearly and resolute against the position of witnesses and suspects as well as in conditions

how a witness is a suspect. when at the same time

82

also has a status as a reporter witness. This gave rise to multitasers and

potentially eliciting an unconstitutional interpretation, thus causing

a legal uncertainty in conflict with the 1945 Constitution. In addition, Article 10

paragraph (2) of the Act of 13/2006 gives rise to the three cuperates. First, a witness who

is also a suspect in the same case would eliminate the right excusatie

the defendant as one of the judicial objectivity, because on the one hand,

when the person As a witness to the court, his limitations were valid as

a proof tool for being pronounced under oath, but on the other side when

concerned with the status as the defendant's description was not in

under oath. Second, is ambiguous and raises the question, who is

that will be arrated first, whistle blower or the perpetrator he reported,

or trial concurrently. Third, is contra legem with

provisions of Article 10 of the paragraph (1) of the Act of 13/2006 that release witnesses, victims and

the perch of the lawsuits. Against the control, after a divorce

pleas of the applicant, expert captions, Government captions, captions

People's Representative Council, and the written testimony of the Witness Protection Institute

and the Victims, the Court argued, that as described in

paragraph [3.14] and in accordance with the name Act 13/2006 which is about

Witness Protection and Victims and the title of the section, Protection and Witness Rights

and Victims, then the substance of the norm Article 10 {\b {\cf1 \f1 \" \" \" \" is to protect the witness, the victim, and

the por, not the witness who is also a suspect in the same case and not

the non-faith whistleber. The protection of the law as

awards (reward) for the participation of witnesses, victims and forkmen as citizens

a good country in assisting law enforcement in uncovering

a occurrence of a criminal offence. In line with that, Section 10 of the paragraph (2) Act 13/2006

states, " A witness who is also a suspect in the same case is not

may be released from criminal charges if he turns out to be legally proven and

convinces guilty, but his testimony can be a judge's consideration

83

in extenuating criminal to be dropped ". Awards by state

which are given to witnesses who are also suspects in question should be viewed

as justice because in it there is balance (balancing) between

contribution of crime disclosure and criminal reduction to errors.

Therefore, it is not appropriate to be interpreted a contrario that the witness who

is also a suspect in the same case not getting legal protection,

so it does n' t get anything. Not exactly that interpretation

due to the fact as a witness he received an award under Article

10 paragraph (2) of the Act a quo due to his participation in uncovering

a felony, and as a suspect/defendant he has obtained protection

the law based on the KUHAP as described above. Article

10 paragraph (2) of the Act of 13/2006 as an exctional provision of Article 10

paragraph (1) of the 13/2006 Act is in contrast to Article 10 paragraph (3) of the Act of 13/2006.

The difference lies in the award. Witnesses who were also suspects

received awards, while witnesses, victims and non-official labeling

in good faith, were legally prosecuted, but did not receive an award

in the form of a reduction in its pidanings. Such provisions have been sufficient

giving it justice. The provisions of Article 10 of the paragraph (2) of the Act of 13/2006

have meaning or are the assertion that a protected witness

is merely a witness who is not involved as a perpetrator in the criminal act

that is. Based on the description in such consideration, according to the Court

the provisions of Article 10 of the paragraph (2) of the 13/2006 Act do not conflict with Article 28D

paragraph (1) of the 1945 Constitution;

3. Safe and Protection of Fear Threats

[3.16.3] A draw that the applicant has lost the right to

a sense of safety and protection from the threat of fear to commit, as

guaranteed by Article 28G verse (1) The 1945 Constitution that states, "any person entitled

for personal protection, family, honor, dignity, and property

under its authority and entitled to a sense of security and protection from the

84

the threat of fear for committing or not doing something that is right

-as a result of the enactment of the provisions of Article 10 of the paragraph (2) Act 13/2006

thus according to the applicant, contrary to the Article 28G paragraph (1) of the Constitution of 1945

which states, "... and is entitled to the safe and protection of the threat

fears to do or ...". In support of his control, the applicant in addition to

filed a proof of the letter/writing also submitted the expert Prof. Dr. Saldi Isra, S.H.,

MPA, which in its press specifies, Section 10 of the paragraph (2) Act 13/2006

potentially damaging or otherwise. Thwarting the initial intent of the formation of Law 13/2006,

and not in line with the intent in Chapter II, protecting witnesses and victims,

but instead it could threaten witnesses and victims. Against this, after

defile the request of the applicant, the expert captions, the Government's description,

the statement of the House of Representatives, and the description of the Institute

Witness Protection and the Victims, the Court argued, The applicant ' s control

states, if the section is used with the wrong interpretation

potentially eliminate the right of safe and protection from threat

fears to commit to the por or witness [vide Request points 10

page 16 and points 14 page 14] is not appropriate, cause according to

The court of formulae the norm in section a quo is quite clear, resolute, and not

ambiguous. Thus, according to reasonable reasoning, it encourages

that the perpetrator is to be truthful in his

testimony in order to uncover the criminal offense. In contrast, there is no

argumentation that reasonable reasoning can be accepted if the terms

thus make people feel afraid and feel insecure for

giving testimony. On such grounds the Court does not agree with

The applicant of the applicant, Prof.Dr. Saldi Isra, S.H., M.P.A. stating, Article 10

paragraph (2) of the Act of 13/2006 is not in line with the intent in Chapter II, protecting witnesses

and the victim, But it can be a threat to witnesses and victims. Thus

that Article 10 paragraph (2) of the 13/2006 Act is contrary to Article 28G of the paragraph

(1) The 1945 Constitution is unproven and unwarranted according to the law;

85

4. Restrictions on Human Rights

[3.16.4] Draw that the applicant postulate has lost rights and

the freedom to meet fair demands in accordance with consideration

morale, religious values, security, and the public order in a society

democratic, especially in relation to "corruption prevention"

as guaranteed by Article 28J paragraph (2) of the 1945 Constitution as a result of expiring

provisions of Article 10 paragraph (2) of Act 13/2006. To support his control, the applicant

submitted the expert Dr. Eddy O.S. Hiariej, who explained it in his section

10 verses (2) contrary to the spirit in the history of whistle-blower, because:

(i) whistle blower not being given protection from the threat of his conspirators, (ii) not

making information whistle blower as a preliminary proof to unravel

crime syndicate, and (iii) the whistle blower information that unravels

is used as an excuse to remove criminal charges. Article 10 of the paragraph (2) of Act 13/2006

also gives rise to the three cuperates. First, a witness who is also a suspect

in the same case would eliminate the right excusatie the defendant as

one of the elements of the judicial objectivity, because on the one hand, when the person

as a witness In court, his limitations are valid as a tool of evidence because

is pronounced under oath, but on the other hand when concerned

status as a given caption is not under oath.

Second, is ambiguous and begs the question, who would

be judged first, whistle blower or the perpetrator he reported, or

arraignment concurrently. Third, is contra legem provided

Article 10 of the paragraph (1) of the Act of 13/2006 that exonerates witnesses, victims and the rights of

the lawsuits. Against the control, upon divorce of the application

The applicant, the expert captions, the information of the Government, the captions of the House of Representatives

People, and the written testimony of the Witness Protection Society and the Victims,

The court argued, that the constitutional norm of Article 28J paragraph (2) of the paragraph (2) of the Constitution

1945 is a provision that allows the state to limit

the implementation of human rights and that each person is mandatory subject to such restrictions.

86

Restrictions are intended to meet the terms of: (i) with the Invite-

Invite, (ii) with the intent to guarantee recognition and respect for

the rights and liberties of others, and (iii) to meet the demands that fair to

with moral considerations, religious values, security, and public order

in a democratic society. According to the Court, the provisions of Article

10 verses (2) of the 13/2006 Act are not restrictions on the implementation of human rights.

The provisions contained in it are regarding lawsuits against

a suspect who has been legally proven and convincingly guilty of doing

a criminal offense, still legally prosecuted even though he has provide

testimony against the same case, as the granting of testimony is not

removing its pidanical liability. Such provision is not

constitutes a limitation, but is a reasonable one based on

justice and is the principle that is embraced in the criminal legal system in

Indonesia. Because of the provisions of Article 10 of the paragraph (2) of the Act of 13/2006 not to be

the limitation of human rights implementation then the Court does not need to test the dalil

The applicant is further related to the terms of the constitutionality

the restrictions Human rights. As for the applicant ' s control of the whistle blower,

The court argued that the a quo Act did not set up

about the whistle blower. In relation to this, the Court agrees

with the Government stating, " The complexity of the whistle position

the blower (battlers) caused the perumus of the legislation

a quo decided not to enter the whistle blower ... ". With

so the applicant ' s control is irrelevant to consider, so

should be ruled out;

[3.17] It is balanced that regardless of consideration Court against

legal issues above, the Court needs to consider things

such below:

[3.17.1] That the Court assesses there is a legally weakened choice

87

about the cancellation request of Section 10 of the paragraph (2) of the 13/2006 Act, which was submitted

by the applicant. On one side the Court understands the applicant that

if the section is left to remain in effect there will be many people who are afraid

to report and testify in the same case as it could

be targeted criminalization without being held for protection, but on the other

the Court also understands the Government's view that if

the section is abolished could pose a possibility or a door for the perpetrator

a criminal offence for Take shelter and save yourself through the absence of the norm

that. In addition to the witness, the victim, and the reporter were not the participants

A criminal offence in the inclusion of the inclusion, then the person in question has received

legal protection under Article 10 of the paragraph (1) Act 13/2006. Therefore,

The court assesses that it is a legal policy option that

does not contain the problem of the constitutionality of the norm, so that the decision

The applicant is unwarranted according to the law;

[3.17.2] That the applicant postulate Article 10 of the paragraph (2) of the 13/2006 Act of 13/2006 should

be given the constitutional interpretation that, " a witness who is also a suspect

in the same case may not be exempt from criminal charges if

stated that the position as a suspect is set in advance

before a witness gives testimony in the case ". According to

Court, the plea is not exact cause without interpretation

conditional (conditionally constitutional) substantively as well as

A grammatical indeed for such a thing must be declared to have been proven

lawfully and convincingly guilty of committing a criminal offence. Thus,

there should be no other interpretation for the phrase as it is clear and resolute

(expressis verbis) a convicted man is surely to be

the suspect first.

4. KONKLUSI

Based on the assessment of the facts and laws as outlined

above, the Court concluded:

88

[4.1] The court is authorized to check, prosecute, and disconnect

plea a quo;

[4.2] The applicant has a legal position (legal standing) for

applying for;

[4.3] Pokok a non-proven and unwarranted law.

Based on the Constitution of the State of the Republic of Indonesia

In 1945 and given the Law No. 24 Act 2003 on

Constitutional Court (State Gazette) Indonesia Year 2003 Number

98, Additional Gazette Republic of Indonesia Number 4316), Invite-

Invite Number 48 Of 2009 On The Power Of Justice (State Sheet

The Republic Of Indonesia In 2009 Number 157, Additional State Sheet

Republic Indonesia Number 5076);

5. AMAR RULING

PROSECUTING,

STATES:

IN THE PROVISION REQUEST

REJECTING THE APPLICANT ' S PROVISION;

In case of the case:

Repleting the applicant's plea for the whole;

Thus decided in a Consultative Meeting of the Judges by

nine Constitutional Judges on Friday, the third of September of the year

two thousand ten and spoken in the Plenary Session of the Constitutional Court

open to the public on this day, Friday the twenty-fourth month

September of the second year Thousand ten by nine Constitutional Judges, which is Moh.

Mahfud MD., as Chairman of the Member, Achmad Sodiki, M. Arsyad

Sanusi, M. Akil Mochtar, Maria Farida Indrati, Harjono, Muhammad Alim, Ahmad

Fadlil Sumadi and Hamdan Zoelva each as a Member, with

assisted by Cholidin Nasir as Panitera Replacement, as well as attended by

89

The applicant/Power, the Government or the representing, and the People's Representative Council

or represents.

CHAIRMAN,

ttd.

Moh. -Mahfud MD.

MEMBERS,

ttd. td

Achmad Sodiki

ttd.

M. Arsyad Sanusi

ttd.

M. Akil Mochtar

ttd.

Maria Farida Indrati

ttd.

Harjono

ttd.

Muhammad Alim

ttd.

Ahmad Fadlil Sumadi

ttd.

Hamdan Zoelva

6. DIFFERENT OPINIONS (DISSENTING OPINION)

Against that ruling, a Constitutional Judge Hamdan Zoelva

has a different opinion (dissenting opinion) as follows:

The applicant's plea is at its point. extend the constitutionality

Article 22 paragraph (2) Act No. 13 of 2006 On the Protection of Witness and Victims,

determining: " A witness who is also a suspect in the case

is the same as not being released of criminal charges if he turns out to be proven

legitimately and Guilty, but his testimony can be made up.

The judge ' s consideration in easing the criminal to be dropped ".