Frans H. Winarta, Jakarta – The withdrawal of testimony by a witness in a criminal proceeding often occurs without any reaction from the court. The panel of presiding judges rarely ask for the reasons for the reversal and fail to unveil the motive behind the withdrawal of testimony.

In fact, material truth is the whole objective of any proceeding in a criminal case. Moreover, Article 108, paragraph 2, of the Indonesian Criminal Code is explicit:

"Anyone who has knowledge of any evil plot to commit a crime against the public's peace and security or against a human life or a possession, must immediately report such a matter to an examiner or investigator."

In addition, witness testimony in a criminal case is compulsory, not voluntary, as opposed to witness testimony in a civil case. An identified witness in a civil case may choose not to continue to be a witness and the court cannot force her or him to do otherwise.

A witness in a criminal case does not have that option. Should that witness not appear to give testimony, the court can force him to do so, as regulated in Article 112 of the Indonesian Criminal Code. If a witness (including an expert or a linguist) refuses to appear, they may be charged under Article 216, paragraph 1, Article 224 and Article 522 of the Indonesian Criminal Code.

A criminal proceeding is done in the name of justice (pro justitia), so the presiding judges' sincerity is absolutely required. Therefore, the withdrawal of witness testimony in a criminal case should invoke the full attention of the Supreme Court.

The presiding judges must also address any reversal seriously and question the motive for the witnesses to do such a thing.

If the reason is threat or intimidation of the witness, then such withdrawal must be denied and the panel of judges must continue to use that testimony as part of the official evidence in deciding the case, especially if that testimony was given under oath.

The fact that such withdrawals have been so easily accepted gives the impression that trial proceedings are not taken seriously. Justifiable reasons for disallowing testimony include situations in which the testimony was originally given under duress, intimidation, violation of the law or persecution.

Recently, the withdrawal of one witness' testimony occurred again, namely in the trial of suspect Muchdi P.R., charged with directing the murder of rights activist Munir. That withdrawn testimony should not have gone unremarked by the presiding judges, especially since the charge was premeditated murder, as regulated under Article 340 of the Indonesian Criminal Code.

An accusation of premeditated murder is a serious one and a witness in such a case cannot be given the latitude a witness in a civil case may have.

That withdrawn testimony may be extremely vital in the pursuit of Munir's murderer, so the action should have led to questions from the judges as to the motive and reason behind the withdrawal.

If unquestioned, withdrawn testimony could become a norm, criminal proceedings, a laughingstock. It requires initiative and creativity on the part of judges to reveal causes for a witness backing down.

If the causes remain unclear, the presiding judges are in fact free to use that testimony as the legal consideration and fact in making a correct and fair decision, after the testimony of the prosecution's witnesses are confronted with those of the defendant's witnesses because the objective of any court decision is to seek material truth and justice.

In addition, as of this moment, some serious thought should be put into how to protect judges from threats by the parties in the case or by other parties – and not just for terrorism cases – so any trial, particularly sensitive ones, can proceed safely and the security of the judges upheld. Then the judges can hand down a decision free from any outside influence and pressure.

Protection of judges should be extended beyond terrorism cases, as has already been spelled out in national regulation 24/2003 on procedures for the protection of witnesses, investigators, prosecutors, and judges in crimes of terror. The murder of judge Syafruddin Kartasasmita several years ago was a bad precedent for Indonesia's judiciary and it showed a judge's life could be imperiled in cases other than terrorism.

To avoid any kind of repetition, there needs to be a protection mechanism for judges who preside over sensitive cases such as crimes against humanity, genocide, war crimes and so forth. With that kind of protection, judges will no longer be reluctant to hand down fair decisions, free from any outside influence and threat.

[The writer is an advocate and a lecturer at the Law Faculty of Pelita Harapan University.]