Witnesses' tricks: Exploiting legal loopholes
Muninggar Sri Saraswati, The Jakarta Post, Jakarta
Testifying before a court is something most people would rather not do. Once named a witness, one must spend his or her precious time attending court sessions and be ready to answer the questions of the prosecutors, lawyers and the judges.
Testifying against a defendant is also risky as the later might take revenge as the country has no laws or regulations on witness protection.
No wonder, the absence of witnesses commonly happens here even though nobody may reject his or her appointment as a witness.
The latest case occurred two weeks ago when seven prosecution witnesses failed to testify at the murder trial of Hutomo "Tommy' Mandala Putra.
Prosecutor Hasan Madani failed to give any explanation about their absence. The judges looked angry with the absence as they had to postpone the hearing, which was guarded by 400 police officers.
Presiding judge Amiruddin Zakaria later ordered the prosecutors to use force to summon witness Dion Hardi, who had been summoned twice.
At the following hearing, they all appeared in court. Five of them claimed that they could not attend the hearing due to health problems, one came to the court late and another one forgot the schedule.
The Criminal Code Procedure allows a witness to skip a hearing for reasons such as a health problem.
The spokesman of the Central Jakarta District Court, Judge Andi Samsan Nganro, confirmed that the absence of witnesses commonly happens despite the summons sent by prosecutors.
Most of them usually attach letters from their doctors saying that they were not healthy.
"We couldn't force them to testify if they have legal reasons as it is allowed by the law," Judge Andi said.
He was aware that defendants might just pretend to be sick, but judges usually did not investigate the "illness" because it would take time. What's more the law does not require judges to check the doctors' reputation.
A court could only order prosecutors to use force to present a witness before the hearing if the witness failed to testify without legal reasons three times.
Taking the witness stand is not a choice. It is an obligation for everyone, the Criminal Code Procedure says.
Witnesses who refuse to testify without legal reasons could face a possible sentence of nine months in jail, according to Article 224 of the Criminal Code.
However, courts here have never imposed the law, according to Andi.
Should the witness refuse to testify, courts here usually order prosecutors to read out the witnesses statements which are made earlier before the investigators.
Prosecutor Kemas Yahya Rahman admitted that a witness played an important role in the trial as the testimony could disprove or prove an indictment.
However, he could tolerate a witness' absence in a hearing.
"It's not a problem as it is allowed by the Criminal Code Procedure. A witness' statements which is read before the court is equal with the witness' direct testimony," said Kemas.
Judge Andi acknowledged that due to the witnesses' absence, sometimes judges made "unfair" verdicts based on what they believed instead of on the evidences as read in court.
He also admitted that judges usually order prosecutors to just read the witness' dossiers because they are racing against time, especially in a criminal case with the defendant being detained.
"In a criminal court, we must be able to finish the case within six months, otherwise, the defendants must be released in the name of justice," he said.
In the case a defendant has been released from detention, if the court jails them, he could avoid the sentence by appealing to a higher court. It is only when the verdict has a permanent legal power that the defendant should serve the jail term. The appeal process may last for years.
For example, the drugs dealer Sunardi was released in April last year and has remained a free man even though the Surabaya District Court later sentenced him to two years and six months in prison.