By: Iman Sjahputra, SH, SpN, LL.M *)

      Hearing in Tipikor (Corruption Criminal Case) in the Special Court of Corruption in Jakarta, in the case of Defendant Harini Wijoso may face dead corner, the deadlock was due to continuing debating between non career judge and career judges.

      The problem faced was whether or not the presence of the Lord Juctice Bagir Manan as the witness is imperative.  Lord Justice Bagir Manan was noted as witness in the proceeding by the prosecutor in the case of alleged bribery of Lord Justice of Supreme Court in relation to the case of Probosutedjo.

      Whilst the Panel Chairman of the Corruption Hearing Judge, Kresna Menon, is of the opinion that the presence of Lord Justice Bagir Manan in the court as the witness whom is also his superior is not necessary.  Judge Kresna Menon alleged no relevance to the presence of Lord Justice Bagir Manan as the witness in this case.

      Judge Kresna Menon based his allegation on SEMA (Circulatory Letter of Supreme Court) No. 2 Year 1985.  The provision of the SEMA among other is about determination on who is to be presence as the witness in the court.  While on the other hand, ad hoc judge who originates from non judge career, namely Made Karna, and the other two ad hoc judges have the opinion that Lord Justice Bagir Manan shall be present as a witness in that case.   His allegation is, how can a prosecutor prove his case and how can judge give judgment if someone who is suspected to have received bribery is not required to be present at court hearing?  That his legal logic.  Due to this opinion dispute, the hearing of the bribery case in the court remains delayed.

JUSTICE DELAYED IS JUSTICE DENIED

      Many times hearings were pending.  We regret for the delay.  The law principle says justice delayed is justice denied.  Delaying of the case does not only damage the right of the Defendant due to due process of law but also justice is denied.

      Doesn’t it mean that delaying hearing denies justice? Harini as Defendant is the party losses the most because her right according to due process law is neglected.

      To mention some of the rights, the provision of Judiciary Law No. 14 Year 1970 juncto Law No. 4 Year 2004 Article 4 paragraph (2) which provides, ”Judiciary is performed simply, fast and in low cost”.  It means that court hearing cannot be delaying.  Such a case may cause disrespect of legal certainty.

      As a justiciable (justice seeker) Defendant’s rights are victimized.  More over if the delaying of the case is not due to the Defendant but due to the judge did not take majority vote in the case tried.

      In consequence the case become delaying which damages the right of the Defendant   to be released from arrest, even though no enactment yet issued because time frame of the arrest has been exceeded.

      It is not unfair for the seeker of justice, that being the Defendant he/she has the same right to ask for the presence of Bagir Manan in the hearing as the witness.  Isn’t it relevant that statement of Lord Bagir Manan be confronted with the statement of the Defendant?  The logic is that truth is necessary to be found.

      A material  truth is always sought in criminal law meaning that the most essences is justice or material truth, not just formal truth, unlike that in civil process.  Civil process differs from criminal process.  Therefore the presence of witness who is the direct person in the case is not an illogical thing.  It is for the sake of justice.

      More over law provides equality before the law.  This is stipulated in the amendment to the Constitution 1945. Article 27 paragraph (1) provides, “Any citizen has the same status in front of law and government and shall respect the law and government without any exception”. Thus it is obvious that the presence of a very important witness is “mostly needed” beside it also shows respect for the law and to maintain that law be respected with authority.

      We all expect that this case shall not keep delaying because with that way justice cannot be enforced.  And it is necessary to note that Lord Justice Bagir Manan should have not been “reluctant”, moreover since the case alleged that it is him who is the “victim in bribery case”.  It may that the Lord Bagir Manan presence in the hearing  is even the easiest way to  clean his name as the Lord Justice  in the case of bribery of  by the Defendant Harini Wijoso, where in this case there is a heavy political sense that there is character assassination toward  Lord Justice Bagir Manan.  What do you think?

*) The writer is practicing lawyer in Jakarta.