A witness retracts his testimony alleging it was given under duress. If untrue, he could be subject to seven years in jail.
ONGEN has become news again. Initially, the man whose full name is Raymond J.J. Latuihamallo shocked the public with his testimony to police about a person that was with Munir prior to the death of the human rights activist. Now, the man with long, neatly combed hair has caused shock again by refuting his statements in the police investigation report (BAP).
“Of course it’s his right not to admit to the results of the police questioning,” said University of Indonesia Faculty of Law criminal law lecturer, Rudi Satryo, on Friday last week. But if his testimony before the court is false, “He could be indicted under Article 242 of the Criminal Code,” said Rudi. This article pertains to witnesses who give false testimony under oath.
The issue of a false testimony started from Ongen’s BAP. Ongen admitted to investigators that he saw Pollycarpus Budihari Priyanto at the Coffee Bean in Changi Airport, Singapore, together with Munir on September 6, 2004. Later on Ongen refuted this testimony when questioned as a witness in a court hearing of a judicial review into the Munir murder case at the Central Jakarta District Court on August 22.
Ongen stated in court that he had given the testimony to police because he had been threatened with being named as a suspect and prevented from leaving the country by the head of the Munir murder case investigation team, Brig. Gen. Mathius Salempang. “The threat was not made during the questioning, but beforehand,” said Ongen’s lawyer, Ozhak Sihotang. Mathius has explicitly denied the accusation. “Never did I do that,” he said.
Certainly, a witness has the right to retract a testimony given under police questioning. Moreover witness testimony given before investigators is usually not done under oath, except in the case of expert witnesses or a witness that cannot be present in court. “According to the Criminal Code Procedures, witness testimony before a court is deemed as evidence,” said Rudi. Mathius has responded by stating that Ongen was put under oath when he was giving his testimony in the BAP.
Executive Director of the Court Monitoring Society, Hasril Hertanto, can understand why Ongen was put under oath. “It may have been for reasons of security and safety, in the event that Ongen was unable to appear [in court],” he said. Because, however, Ongen was able to testify in court, his testimony before the court carries more weight as evidence than the BAP.
Despite this denial, said Hasril, it does not mean that the BAP is unimportant. “The BAP can still become a reference,” he said. Ongen however could be charged with giving false evidence if what he states before the court does not conform with the facts. “If Ongen’s testimony is false, it’s quite possible that he could be subject to [indictment] for giving an untrue testimony under oath.”
If a witness is charged under the articles on giving false evidence, said Rudi, there are two ways that this can be done. A judge may declare that the witness has given a false testimony, then ask investigators to pursue the matter. But it is also possible that the police could investigate directly if there are strong indications that a witness has given a false testimony. “In practice, it is the first that is most often used,” said Rudi.
In cases such as this where there are suspicions that a false testimony has been given, said Hasril, the active role of the prosecutor and the judge is extremely important. In court the prosecutor must convince the judge that what Ongen has stated before the court is a lie. “The prosecutor must demonstrate this,” said Hasril. If proven, Ongen could be indicted under Article 242 of the Criminal Code which carries a sentence of seven years in jail.
Ozhak Sihotang was not prepared to comment at length on the issue of giving a false testimony under oath. “Ongen doesn’t wish to be involved in this case any more,” said Ozhak. “Moreover the judge has the authority to declare this so.”
Abdul Manan, Rini Kustiani
Tempo Magazine, No. 01/VIII/September 04-10, 2007