13

interpretatio cessate in claris, in which we cannot interpret the word-

word in the Act, if the text of the words is clear. This

is an arbitrary, authoritarian act and

override Rule of Law.

That interpretation can only be done in case there is a void

the law. However, the KPK has made an interpretation that is not based on

the legal reality of which is applicable in Indonesia (ius constitutum). While the Article

65 KUHAP is still in effect that it should be KPK cannot and not

needs to interpret the sound of an Act if the text of an

The Act is clear and light.

That against The interpretation of the suspect proved to have been severely harmed.

his constitutional rights as an Indonesian citizen should be

protected, i.e. human rights as set in Article 28D clause

(1) The 1945 Constitution. Loss of Constitutional Rights violations due to

interpretation of Article 65 of the KUHAP may also adversely affect the right

constitutional rights later.

That other than that, in practice, has evolved anyway. interpretation of

in part by the KPK against Article 65 of the KUHAP, in which the KPK argues

that there are extenutable witnesses to be checked in levels

the inquiry, but the expert submitted by the suspect cannot be submitted

in the investigation level. Whereas Article 65 of the KUHAP has set it up

is balanced between the right to file a easing witness and or

expert. The KPK should not create a different interpretation

regarding the right of the witness to which it is revealed to be

an expert in the investigation level.

The KPK's actions have clearly been adversely affected. The constitutional right of the

The applicant because of the passage of article 184 of the paragraph (1) of the (1) KUHAP

states:

" (1) the valid evidence tool is: a. Witness description

b. Expert description

c. Letter

d. Hint

e. The defendant's description "

14

Thus between the Attraction given by an expert

with the caption given by a witness are two things that

are different. Thus it is the right of a suspect or a defendant to

submit as many useful evidence tools to

himself, in the interest of his defense.

That the expert submission is in the investigation level already should be met

by investigators on the Corruption Eradication Commission of the Republic of Indonesia as appropriate

with the sound of Article 65 of the KUHAP.

One of the proofs of the KPK's rejection of an expert submission

is shortened by the suspect contained in the letter Number

B-48/D. Dak2/KPK/III/ 2007 dated March 28, 2007 to Dr. Otto Cornelis

Kaligis, subject to the Applicant Submission that the applicant

quotes as follows: "Thus the investigator does not have

the obligation to call and examine an expert favorable to

A suspect in an inspection at the investigation level. For that, it is recommended

to Brother to present a favorable expert for

the defendant in the trial proceedings in Court".

That the KPK Letter is proof of a heretical interpretation and not

by law, conducted by the KPK, so that the future

is always open to the possibility that constitutional rights related to

equal status equality before the law as stated in

Article 28D verse (1) The 1945 Constitution will be broken.

That with the wrong interpretation and unfounded on an

An Act of clarity and light that the Investigator does,

The General Prosecuer, and the Judge, then could potentially pose a loss

to the constitutional right of the Applicant who according to The reasoning that

reasonable is certain to occur, if the applicant later in the day

has the status of a suspect or a defendant, as it is highly likely to occur

The petitioners did a mistake and status

as a suspect and or a defendant. As such, to avoid

again the occurrence of misleading interpretations while the right

the suspect has been set up clearly and in light in Article 65 of the KUHAP, para

The applicant is applying to the Court Constitution for

materially testing against Section 65 of the Criminal Code as well as

15

an explanation that should be interpreted as " the investigator, the public prosecutor, and

the judge has no obligation to examine the witness and or a person

who has special skills to provide the description

advantageous for and submitted by the suspect/defendant ",

is unconstitutional because it is in conflict with Article 28D of paragraph (1) of the Constitution

1945.

III. Plea That based on the things the applicant has raised above, the

the applicant hereby pleads with the Constitutional Court of the Constitutional Court

please check, prosecute, and cut off the applicants

with Amar Putermination as follows:

1. Accept and grant requests from the Applicant for

entirely;

2. Stated Article 65 of the Law No. 8 of 1981 on

Law of Criminal Events (State Sheet of the Republic of Indonesia in 1981

Number 76) and Explanation of Article 65 of the Law No. 8 Year 1981

on the Law of Criminal Events (Additional Republican Gazette

Indonesia Number 3209) in conflict with Article 28D paragraph (1) Invite-

Invite Basic 1945 conditional (conditionally unconstitutional),

unless it is defined " suspect or defendant entitled to

attempt and file a witness and or someone who has

special expertise to provide favorable information

himself and the investigator, the public prosecutor as well as the judge have an obligation to

receive and check the witnesses and or experts who are evicted and

submitted by Suspect/Defendant ".

3. Stated Article 65 of the Law No. 8 of 1981 on

Law of Criminal Events (State Sheet of the Republic of Indonesia in 1981

Number 76) and Explanation of Article 65 of the Law No. 8 Year 1981

on the Law of Criminal Events (Additional Republican Gazette

Indonesia Number 3209) as long as " investigator, public prosecutor, and

judges do not have the obligation to accept and examine witnesses and

or experts who were ushered in and submitted by defendants ",

unconstitutional and do not have binding legal power.

16

4. Ordering the loading of this ruling in the Republic News of the Republic

Indonesia as it should be;

If the Constitutional Court of the Constitutional Court argues otherwise, please the verdict

that is in its fair (ex aequo et bono).

[2.2] weighed that to prove its request control, para

The applicant submitted a proof of a letter or inscription given a Proof of P-1

up to the Proof P-3, as follows:

1. Proof of P-1: Photocopy of the State Basic Law of the Republic of Indonesia

In 1945;

2. Evidence P-2: Photocopied Act No. 8 of 1981 on Law

Criminal Event;

3. Evidence P-3: Photocopy Act No. 8 of 1981

on Criminal Event Law;

In addition to submit written evidence, the petitioners also submitted 1

(one) Expert person Prof. Dr. O.C. Kaligis which he had heard in the trial on 18 January 2011 as follows:

1. Expert Prof. Dr. O.C. Kaligis

Ratio legis The Basic Law of Article 1 verse (3) there are two,

rechtszekerheid and rechtelijkheid. Regarding equality before law, special

is faced to the law of the event, where the rights of the suspect confronted

to the integrated criminal justice system, in Article 28D paragraph (1)

reads, " Everyone is entitled to the recognition, warranty, protection, and

fair legal certainty as well as the same treatment in the Before the law. "

Actually Article 65 is pretty clear. Only the heretical interpretation

from investigators led to the issue being brought to the Constitutional Court

because interpretatio cessate in claris.

The judge did not take the decision in a conflict. If the right

the suspect has since originally been castrated, his philosophy as well as the concept

human rights in Article 28 of the 1945 Constitution, authoritarian states are not likely to wear

the philosophy of the Human Rights. Middle range storywas due process of

law. We do not use the power approach and because of the

presumption of innocence.

17

Article 417 of the Criminal Law Act, "Whose goods

willfully embezzled the penalty." was always ignored in

legal considerations. Since there is no possible agreement

if the suspect is expected by a suspect who is right

the basic is ignored.

In equality before the law is most important to the discussion.

primary judicial ethics, especially for judges and prosecutors. This is happening

due to the concept of judicial ethics, not only rules of conduct

but also counting rule of law and morality. Judicial ethics rules of

the standard and norms that bear on judges and covers such matters as

how to maintain independent impartiality and avoid improperty. With

Prosecutors deprive the suspect rights since Originally to submit an expert,

There is no possible judge in the dissection of Article 185 of the paragraph (6)

view the conflict, and what happens only the Prosecutor's opinion, which has

engineered in such a way that the suspect be included because

approach due proccess of law is presumption of innocence no

presumption of guilt. We do not pursue the recognition of the suspect and

hence Article 185 verse (1) says, "The evidence is what

is declared in court." One witness is not a witness.

Adanya equality before the law as ratio legis Article 1 of paragraph (3)

is linked to Article 28 of the Basic Law of 1945, if indeed

that right is not granted. About judicial ethics which is a discussion

in the world, regarding integrity, and fair trial. Fair trail judge not possible

in terms of judex facti does one conflict between the witness description

one and another witness description if indeed a de charge was not

has been pushed forward since Originally.

The suspect's rights waiver has since been in violation of Invite-

The base he had ratio legis was rechtszekerheid and

rechtelijkheid, equality before the law, and violating Article 28D paragraph (1)

that reads, " Everyone is entitled to a confession, a guarantee,

protection, and fair legal certainty as well as equal treatment

before the law ".

The emergence of this issue due to the perverse interpretation of investigators.

Because the words of Article 65 are sufficient Obviously, here his words.

18

is a suspect, his legal subject is a suspect, and that

cannot be usured by anyone as well.

[2.3] A draw that the Government submitted a written statement without

date, January 2011 accepted by the Court on the date

17 February 2011 as follows:

I. Point of Request a. That subject of the applicant with the register of the case

No. 28 /PUU-VIII/2010, at its core stated that the provisions

Article 65 of the Law No. 8 Year of 1981 on the Law of the Event

Criminal, considered potentially adverse the rights of the petitioners,

due to the unconstitutional interpretation carried out by

law enforcement apparatus, in particular for the suspect or defendant to

submit a Witness and/or Expert favorable, which can only

rejected by law enforcement authorities for no obligation

for the law enforcement apparatus to receive and inspect the Witnesses

and/or the Expert.

1. That in the handling of matters under the name of Syaukani Hassan Rais,

Marthias and Aulia Pohan, the Investigator of the Corruption Eradication Commission

(KPK) has refused to examine the expert filed by the suspect with

the reason there is no need for investigators to examine the expert who

submitted by the suspect, this is evidenced by the letter Number B-

48 /D. Dak2/KPK/III/ 2007 dated March 28, 2007 to Dr. Otto

Cornelis Kaligis that reads: " thus the investigator is not

has an obligation to call and check the expert that

benefits for suspect in examination at the pen level

yip. To that end, it is recommended to the Brothers to present

an expert favorable to the accused in the proceedings of the

Court.

2. That according to the applicant, the KPK Investigator has misinterpreted

Article a quo so that it would be open to the possibility

of a violation of constitutional rights as a citizen

Indonesia that is also potentially harm the constitutional right of the

The applicant.

19

3. That the norm that is in the a quo Act, is considered

has violated the constitutional right of the applicant as an

advocate who is in practice and appointed as legal advisor

the suspects or the accused have been subjected to a violation of rights

constitutional by therefore according to the applicant then the provision

a quo is considered in conflict with Article 28D of paragraph (1) of the 1945 Constitution.

4. The government argued that the Constitutional Court was not

authorized to examine and prosecute the applications

The applicant, because of the plea a quo is pertinated with

the application of the norm (implementation) of an Act appropriate

mandate Section 65 of the Law No. 8 of 1981 on

Criminal Event Law, especially because it concerns the order of practice

by the Corruption Eradication Commission in conduct of inquiry

in accordance with the authority presented by the Act,

in particular in conducting top consideration expert check

filed suspect in the investigation.

b. That is the subject of the applicant with the case register

No. 65 /PUU-VIII/2010, at its core stating the provisions of Article 1

number 26 and number 27, Section 65, Section 116 of the paragraph (3) and paragraph (4) as well as

Section 184 of the paragraph (1) of the letter a Law No. 8 Year 1981 on

The Criminal Event Law is considered to have recognized the recognition, guarantee,

protection, and legal certainty, as well as being considered contradictory

with the principles of the state of law, hence according to the The applicant

such provision is deemed to be contrary to the provisions of Article 1

paragraph (3) and Article 28D paragraph (1) of the Constitution of 1945, because as follows:

1. That a suspect as determined by KUHAP

is given the right to prove that he is innocent,

because the provision is above must be interpreted as an attempt

a suspect to prove that His innocence

as a form of respect and fulfillment of human rights, the

is therefore protected and guaranteed by the constitution;

2. That it is the right of a suspect to submit

as much as the evidence tool to benefit himself and

prove his innocence, as it gives

20

interpretation of a viable or unexemplary or not a witness

favorable to himself is not a discretion or

"freis ermessen" of the investigator's more than Jampidsus and Prosecutor

The Supreme but the authority of the judge.

3. That a phrase, a suspect or a defendant is entitled to attempt

or to file a witness and or a person with expertise

specifically to provide a favorable description for

himself, should be interpreted and interpreted as rights that cannot

be rejected for any reason for a suspect to

present a witness or an expert favorable to him

in one criminal case.

4. In short, the petitioner requests that

a a quo must be defined (conditionally unconstitutional)

" The suspect or defendant is entitled to attempt to and

submit witnesses and or a person who has the expertise

specifically to provide a favorable caption himself,

and the investigator, the public prosecutor and the judge have an obligation to

receive and check witnesses and or experts which are ushered in and

filed by the suspect/defendant ":

5. The government argued that the Constitutional Court was not

authorized to examine and prosecute the applications

The applicant, because of the plea a quo is pertinated with

the application of the norm (implementation) of a law. appropriate

mandate Section 1 of the number 26 and number 27 Act No. 8

In 1981 on Criminal Event Law, especially since

concerns the order of practice by the Prosecutor's institutions as

Investigators, to conduct the investigation and/or prosecution appropriate

with the authority provided by The Act,

in particular in consideration of the witness examination

that benefits/witnesses a de charge for the suspect for

the inquiry's interests, even against the wishes of the petitioners

has been met (among others presenting former Vice President of the Republic of Indonesia

H. Yusuf Kalla and former Minister of the Economy Kwik kian Gie).

21

II. About the Legal Standing (Legal Standing) The applicant

In accordance with the provisions of Article 51 of the paragraph (1) Act Number 24

of 2003 on the Constitutional Court, stating that the applicant

is the party to which it is not. the rights and/or authority

its constitutionality is harmed by the enactment of the law, namely:

a. Individual citizens of Indonesia;

b. the unity of the indigenous law society as long as it is alive and appropriate

with the development of the community and the principle of the Unity State

The Republic of Indonesia that is governed in the promulcity;

c. the public or private legal entity; or

d. country institutions.

The above provisions are expressed in its explanation, that what

with "constitutional rights" is the rights set forth in the Invite-

Invite the Basic State of the Republic of Indonesia in 1945.

Thus, in order for someone or a party to be accepted

as the applicant who has a legal position (legal standing) in

an Act of testing against the Basic Law

The State The Republic of Indonesia in 1945, first had to

explain and prove it:

a. Qualify for the a quo as described in

Article 51 of the paragraph (1) of the Law No. 24 of 2003 on

Constitutional Court;

b. the rights and/or its constitutional authority in qualifying

referred to as being harmed by the enactment of the Invite-

Invite which is tested;

c. The claim and/or constitutional authority of the applicant as

result enactment of the Act, which is expected to test.

More on the Constitutional Court since the Decree Number 006 /PUUIII/2005

and the Number 11 /PUU-V/2007, as well as subsequent rulings,

has provided the understanding and limitation of the Cumulatively about

rights and/or authority losses constitutional arising out of

the enactment of an Act according to Article 51 of the paragraph (1) Invite-

22

Invite Number 24 of 2003 on the Constitutional Court must

meet 5 (five) terms:

a. The applicant's constitutional right is granted by Invite-

Invite the State of the Republic of Indonesia in 1945;

b. that the applicant ' s constitutional right is considered by the applicant

has been harmed by an Act that is tested;

c. that the intended constitutional loss is

specific (special) and actual or at least potentially a potential

according to reasonable reasoning that can be certain to occur;

d. Due (causal verband) between the loss and

the enactment of the Act is moveed to be tested;

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

the constitutional loss postured will not or no longer occur.

Over those things above, then according to the Government needs

in question of interest The applicant is correct as

the party who considers the rights and/or its constitutional authority

aggrieved by the provisions of Article 1 of the number 26 and the number 27, Article

65, Section 116 of the paragraph (3) and paragraph (4) as well as Section 184 verse (1) letter a

Act Number 8 of the Year of 1981 on the Law of Criminal Events. Also

whether there is a constitutional loss the applicant referred to

is specific (specifically) and actual or at least potential that

according to reasonable reasoning can be certain to occur, and whether

there is a causal link (causal verband) between the loss and

the enactment of the Act that is being moveed to be tested. In this case,

The government argued that:

a. The applicant in case register Number 28 /PUU-VIII/2010

dated 28 April 2010 did not have a valid legal standing for

applying for not fulfilling the provisions

Article 51 of the paragraph (1) Act Number 24 Year 2003 juncto

Putermination of the Constitutional Court among other Putermination

No. 006 /PUU-III/2005 dated 31 May 2005 due to not

the resulting constitutional rights loss of the applicant who

was an advocate of the when practicing and appointed

as the legal advisor of the suspects or the defendant with

23

the enactment of the Tested Section. Based on Putermination jurisprudence

Constitutional Court Number 10 /PUU-VIII/2010 pages 57, 58, and 59

points 3.11 to point 3.15 at the point stating that

The petitioner's plea is not an advocate. have

legal standing to apply for a materiile test.

b. The applicant's request with the case register Number 65 /PUU-

VIII/2010 is not solely intended to the applicant (as

a suspect in the case of a criminal corruption only) and at the stage

The investigation only, but is addressed as well. or applies to any of the proceedings

the trial of any person and or the witnesses that

benefits and witnesses a de charge under Article 1 of 26 and

number 27 of the Law No. 8 of the Year of 1981 on KUHAP.

1. According to the Government, the presumption of the applicant stating

that the provisions are considered to be contrary to the Constitution

1945, and are therefore considered to be detriing to rights and/or

of its constitutional authority, it is premature and that it is not possible. not

based, because according to the Government provisions a quo not

is solely directed to the applicant (as a suspect

in the case of criminal corruption only) and at the preparation stage

only, but intended also or applies to any process

the trial against each person and or witnesses

a favorable and witness a de charge under Article 1 of the number 26

and the number 27 Act of 1981 on

KUHAP.

2. Thus, even though the Investigator did not grant

a favorable witness check or a witness a de charge which

was filed by the petitioners at the investigation level, however

The Act regulates that on the level examination in

the trial (at the prosecution stage) the applicant may still

submit a favorable witness and witness a de charge

independent or through the judge's order to

General Prosecutions, vide section 160 paragraph (1) letter c, stating,

" In case there are good witnesses who favorable or that

incriminating the defendants listed in the Abundance letter

24

matters and or requested by a defendant or legal counsel

or a public prosecutor during the course of the hearing or before

rationed the ruling, the speaker of the hearing is required to hear

The witness description. " Further M. Yahya Harahap, in

his book Pembahasan, Question and Application of KUHAP Volume

II, PT. Garuda Metropolitan Press, May 1988, hal. 693, states,

" Article 160 paragraph (1) of the letter c imposes a legal obligation

to the judge of the hearing to the hearing of the witness. ...

0leh as it is every witness who has been examined by investigators, and

The witness is listed in the matter of the case file, mandatory

heard his statement in advance of the trial without

supposing the witness incriminating or perpetuating

the defendant ".

3. That the a quo Act expressly states still

the chance of the applicant to submit additional witnesses

that the defendant or the General Prosecuting and, " not only

limited to the witnesses that have been listed in

The problem of the case files checked by

the inquiry ... but covering all the witnesses ... beyond those witnesses

has been listed in the devolution of the case files .... Judge

Speaker "must be" listening ".

4. That, the a quo provision is a form of protection

general (general prevention) given by the state against

any person who sits as a suspect/defendant. That

a favorable witness check and a witness a de charge

is not blocked by the KUHAP, even recognized by the para

The applicant that KUHAP has stepped one stage more forward

in laying out the tonsils Article 1 paragraph (3) and Article 28D UUD

1945. With the uncalled witness a de charge submitted

by the suspect or defendant, does not mean eliminating the rights

the suspect because the suspect ' s right is still protected by Invite-

Invite that stated that in the process trial in

Article 160 paragraph (1) of the letter c KUHAP, suspect or co-defendant

may file a lightest witness and witness a de charge.

25

So that according to the Government of the entire investigation process,

the prosecution in advance of the judiciary, up to the court ruling

has appropriate the applicable procedure and has been appropriate to

the laws of the law. that applies and reflects

a good judicial process (due process of law).

Based on the description, the Government implores the Speaker/Assembly

The Constitutional Court Justice states the applicant ' s plea

not acceptable (niet ontvankelijk verklaard).

III. The Government ' s Explanation Of The Charge Material Is Being Moed To Be Tested By The Petitioners. The applicant in his request submitted the testing

(constitutional review) against the provisions of Article 1 of 26 and the figures

27, Article 65, Section 116 of the paragraph (3) and paragraph (4) as well as Section 184 of the paragraph (1)

letter a Act In 1981, the Law of the Event

Criminal stating:

Article 1 26 of the KUHAP:

The witness is the one who can provide a description of interest

pen yiDriving, prosecution and judiciary on a criminal case that

he heard himself, he saw himself and he experienced himself.

Article 1 of the KUHAP 27:

The witness account is one of the evidence tools in the criminal case

is the description of a witness regarding a criminal event that he

hears himself, he sees it himself and It is self-natural to describe

the reason of that knowledge.

Article 65 of the KUHAP:

The suspect or defendant is entitled to attempt and file

the witness and or someone who has the expertise special purpose

provides a favorable description for him.

Section 116 paragraph (3) KUHAP:

In the examination of the suspect is asked if he intends

with a witness which can be favorable to him and when there

then it is recorded in the news of the event.

Article 116 of the paragraph (4) of the Criminal Code:

26

In the event referred to in paragraph (3) of the mandatory investigator

call and examine the witness.

The article 184 of the paragraph (1) letter a KUHAP:

The valid proof tool is: a. witness description;

The provisions above by the applicant are considered to be contradictory

with the provisions of Article 1 paragraph (3) and Section 28D paragraph (1) of the 1945 Constitution,

stating:

Article 1 of the paragraph (3) of the 1945 Constitution: The State of Indonesia is a legal state.

Article 28D paragraph (1) of the Constitution of 1945: Everyone is entitled to the recognition,

fairness, protection, and fair legal certainty as well as the treatment

equal before the law.

Over those matters, the Government can provide an explanation as

following:

a. That subject of the applicant with the register of the case

No. 28 /PUU-VIII/2010, at its core stated that the provisions

Article 65 of the Law No. 8 Year of 1981 on the Law of the Event

Criminal, considered potentially adverse the rights of the petitioners,

due to the unconstitutional interpretation carried out by

law enforcement apparatus, in particular for the suspect or defendant to

file a witness and/or expert in favor, which can only

rejected by law enforcement authorities for no obligation

for the law enforcement apparatus to receive and check the witnesses

and/or the expert.

That against the presumption of the applicant above, the Government

may explain as follows:

1. that the provisions of Article 65 of the Law No. 8 Year of 1981

on the Code of Criminal Events Act do not

contrary to Article 28D of paragraph (1) of the 1945 Constitution. The

The applicant has misinterpreted the norm in the proofed Article

i.e. Section 65 of the Law No. 8 of 1981 on the Book

The Criminal Event Law Act where in

the execution of the suspect or the defendant to submit

the witness is not only limited to the investigation level but on

the examination rate of the suspect trial or the defendant may

27

presenting the expert as it is in the nature of the expert description

as a proof tool as delivered

The applicant in its Role on page 16 is

The caption is delivered In front of the trial and below

I swear.

2. That the petitioners in his Permohores on page 12

(twelve) paragraph 4 (four) and on Petitum Plea

2 (two) state that Section 65 Act No. 8

Year 1981 on the Book of Law of the Event The criminal

and its Explanation have violated the provisions of Article 28D clause

(1) of the 1945 Constitution. The applicant ' s control is the erroneously incorrect proof

due to Article 65 of the Law No. 8 of 1981 on

The Code of Criminal Events Act and its Explanation

not contradictory to the 1945 Constitution in particular Section 28D verse

(1). In contrast, Article 65 is intended to be

the editoration or reflection of Article 28D of the paragraph (1) of the Constitution

1945, due to the existence of Article 65 of the Law No. 8

of the Year of 1981 on the Code of Criminal Events Act

this, has accommodated the execution of a suspect or defendant ' s rights

in accordance with the provisions of Article 28D paragraph (1) of the 1945 Constitution.

b. That according to the petitioners with the register case Number

65 /PUU-VIII/2010, in its Permohony at its point stated

that the applicant 's right to request was heard the witness' s caption-

a witness deemed favorable to the para The applicant is based on

provisions of Article 65 juncto Section 116 paragraph (3) and paragraph (4) Invite-

Invite Number 8 Year 1981 on Criminal Event Law, which

rejected by the Investigator and the Supreme Prosecutors ' superiors clearly

harms the constitutional right of the Applicants guaranteed by the Constitution

1945. The source of such refusal according to the applicant is based

on the provisions of Article 1 of the No. 8 Act of 1981

on the Law of the Criminal Event, about the description of the witness which

is linked to the provisions of Article 65 juncto sections 116 paragraph (3) and

(4) as well as Section 184 paragraph (1) letter of Act No. 8 of the Year

1981 on the Law of Criminal Events.

28

That Article 1 is 26 and 27 a quo of that

according to the applicant is also applied "discriminatory" by

Investigator as it applies only to the witnesses of the facts, witnesses to events and

witnesses However, not against the favorable witness

or the witness a de charge for the petitioners (vide plea of the applicant

number 19 page 28). That the petitioners in his petition

the 20-figure-37 thing that at the point was the act

arbitrary the prosecutor and the prosecutor's office

the great who didn't want to call the auspicious witnesses.

The petitioners who harmed the constitutional right of the applicant will not

happen again if the request is granted.

That against the presumption of the applicant above, the Government can

explain as follows:

1. That the provisions of Article 1 of item 26 of the Law No. 8 of the Year

1981 of the Criminal Event Law (KUHAP), stated, "Witnesses

is the person who can provide the information

the interests of the investigation, prosecution and A judicial case

A self-heard criminal case, he sees himself and he is natural

himself by calling the excuse of his knowledge ".

Whereas Article 1 of item 27 states, " The witness account is

one of the evidence tools in the criminal case that he heard himself,

he saw himself and he experienced himself by calling the rationale of

That knowledge is ". That according to M. Yahya Harahap, in

his book The Problem, Question and the Application of the KUHAP Volume

I, PT. The Kartini Library, December 1993, thing. 146, states,

appropriate witness description for yusticial interest, enough

carefully noted article 1 buitr 27, linked

with section 116 paragraph 2: the witness must provide the caption which

actually is the actual description in respect

with the criminal offense being examined. The opposite place

in examining the witness is a criminal offence being examined

itself, so that the investigator actually got the order

The truth of the criminal event was from the witness, within the limits of way

that does not contain pressure and coercion. Description element

29

The correct witness is relevant for a justifiable or judicial interest

is the description intended by article 1 of item 27 and Article

185 verses (5). With this affirmation it can be

directs the witness examination: a description of an

criminal event, which he heard, not the result of the story or results

the hearing of the other person. Must be directly personally

is heard by a witness himself about a criminal event that

is concerned, which he sees itself means at the time of the incident

or a barrage of events of criminal events that earnest

witnessed by its own eyes.

That Article 1 of item 27 of the KUHAP does not harm the constitutional right

The applicant, since the provisions of the section are linked

with Article 185 of the paragraph (5) of the Criminal Code, aims to be an investigator

to obtain the truth of the event a criminal action

not an opinion nor a recluse that is obtained from the outcome of the thought

only. Thus the provisions of Article 1 item 27 of the KUHAP

aim for justifiable interest in order to obtain the order

the correctness of the criminal events as well as provide reassurance and

legal protection for suspects and defendants in order not to

disnumerable or charged not based on real factafacts.

2. That Section 65 of the KUHAP states, " The suspect or the defendant

reserves the right to attempt and file a witness and or

someone who has special skills to provide

The favorable captions for himself ".

That during the examination the applicant's investigator (the suspect)

may submit to the investigator for the witness to be examined which

benefits for him. A favorable witness check

or a witness a de charge for the suspect is subject to the law

is mandatory, as is the provisions of Article 116 of the paragraph (4) of the Criminal Code

in the case of the suspect stating that he will apply

A favorable witness for himself investigator "obligatory" calls

and examined the witness.

That according to M. Yahya Harahap, in his book Pembahasan,

Question and Application of the KUHAP Volume I, PT. Kartini Library,

30

December 1993, thing. 142, stated, on the issue of obligations

the law for investigators to call and check a witness de

charge if it needs to be slightly sobering up to where

This obligation must be met by Investigator? The reject point of principle

and the purpose of KUHAP itself may be appropriate for the obligation

the laws charged with Section 116 of the paragraph (4), are limited

to the extent of the need for interest. profits

suspects. If there are any adverse symptoms in

file a witness de charge to the toying-play

The path is checked, hilt or hapkeep the binding obligation

to call and check Witnesses a de charge that

filed suspect.

3. That thus, even though the investigator is obliged to

call and check the witness a de charge, but of course

the witness must be a witness in accordance with the provisions of Article

1 item 27 of the KUHAP aims for Yusticial interests in order to

get the truth of the criminal events as well as

provide warranty and legal protection for the suspect and

the defendant as well as need to be aware of their relevance for

prove not to be caused obstacles to its path

examination.

4. That the petitioners in the 7-page 23-page figure were

that at the point stated " The provisions of Article 14 paragraph (3)

International Covenant on Civil and Political Rights