Mardani H. Maming Punya Hak Memberikan Keterangan Saksi Secara Daring

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Pemanggilan seorang saksi dalam perkara tindak pidana korupsi di Pengadilan Tipikor Banjarmasin, yaitu Mardani H Maming menjadi perhatian publik.

Sidang ini terkait dengan Sidang kasus dugaan suap izin tambang di Kabupaten Tanah Bumbu dengan terdakwa eks Kepala Dinas ESDM Tanah Bumbu Raden Dwidjono Putrohadi Sutopo itu digelar di Pengadilan Tipikor Banjarmasin, Senin (18/4/022).

Pada akhirnya Mardani H. Maming bersedia hadir dan memberikan keterangan secara virtual bersama dengan tiga saksi lainnya yaitu  saksi Lena Komala, Miranti dan Ahli Silhon Junior.

Saksi Mardani Maming tidak hadir karena yang bersangkutan sedang menjalani pengobatan di Singapura. Sidang yang disebutkan dalam berita tersebut sedianya disidangkan oada tanggal 18 April 2022 yang dilakukan secara daring sebagaimana persetujuan majelis hakim dalam persidangan terdahulu. Namun uniknya ketika saksi telah bersedia hadir secara daring dan sudah berada di layar kemudian ketua majelis hakim menolak kehadiran saksi dan malah menerbitkan surat pemanggilan paksa terhadap saksi. Dengan alasan untuk menanyakan kepada saksi secara langsung perihal SK yang diterbitkan oleh saksi selaku Bupati Tanah Bumbu pada tahun 2010 – 2015.

Padahal, SK yang akan ditanyakan tersebut tetap dapat ditanyakan kepada saksi secara virtual dengan mengirimkan SK tersebut kepada saksi sebelum persidangan atau saat persidangan.  Sehingga saksi dapat memeriksa di tempatnya berkedudukan dan majelis hakim tetap dapat mengajukan pertanyaan atas SK Bupati tersebut.  Hal ini tetap dapat dimungkinkan dengan mekanisme persidangan online.

Pengaturan tentang persidangan secara elektronik (online) telah diatur dalam sejumlah peraturan perundang-undangan seperti :

Peraturan Mahkamah Agung RI Nomor 3 Tahun 2018 Tentang Administrasi Perkara di Pengadilan Secara Elektronik.

Keputusan Direktur Jenderal Badan Peradilan Agama MARI Nomor 1294/DjA/HK.00.6/SK/05/2018 Tentang Petunjuk Pelaksanaan Peraturan Mahkamah Agung Nomor 3 Tahun 2018 Tentang Administrasi Perkara di Pengadilan Secara Elekktronik.

Keputusan Ketua Mahkamah Agung RI Nomor 122/KMA/SK/VII/2018 Tentang Pedoman Tata Kelola Pengguna Terdaftar Sistem Informasi Pengadilan.

Peraturan Mahkamah Agung RI Nomor 1 Tahun 2019 Tentang Administrasi Perkara dan Persidangan di Pengadilan Secara Elektronik.

Keputusan Ketua Mahkamah Agung RI Nomor 129/KMA/SK/VIII/2019 Tentang Petunjuk Teknis Administrasi Perkara dan Persidangan di Pengadilan Secara Elektronik.

PERMA No. 4 tahun 2020 tentang Administrasi dan Persidangan Perkara Pidana Secara Elektronik di Pengadilan.

PERMA No. 4 tahun 2020 yang mengatur tentang persidangan perkara pidana secara elektronik, utamanya pada pasal 11 ayat (3) menyebutkan bahwa:

Dalam keadaan tertentu, Hakim/ Majelis Hakim dapat menetapkan pemeriksaan yang dilakukan terhadap Saksi dan/Atau Ahli yang berada di :

Kantor Penuntut di dalam daerah hukumnya;

Pengadilan tempat Saksi dan/ atau Ahli berada apabila  Saksi dan/ atau Ahli berada di dalam dan di luar daerah hukum Pengadilan yang menyidangkan perkara;

Kedutaan/ Konsulat Jenderal Republik Indonesia atas persetujuan/ rekomendasi dari Menteri Luar Negeri, dalam hal Saksi dan/ atau Ahli berada di luar negeri; atau

Tempat lain yang ditentukan oleh Hakim/ Majelis Hakim

Maka, berdasarkan regulasi di atas,  Pemeriksaan Saksi secara daring (elektronik/ online) termasuk dalam perkara pidana adalah hal yang wajar terjadi, apalagi di masa pandemic Covid-19 seperti saat ini.  Apalagi, PERMA No. 4/ 2020 juga telah memberikan acuan untuk mekanisme ini.  Tidak ada keharusan untuk mengikuti pemeriksaan saksi secara daring di tempat tertentu, melainkan diberikan sejumlah pilihan sebagaimana tercantum dalam Pasal 11 ayat (3) dari PERMA No. 4/ 2020.

Terlebih lagi, Indonesia telah memiliki UU Hak Asasi Manusia No. 39 tahun 1999,  telah meratifikasi Kovenan Hak-Hak Sipil dan Politik (International Covenant on Civil and Political Rights) dengan UU No. 12 tahun 2005,  serta telah melahirkan UU No. 13 tahun 2006 jo UU No. 31 tahun 2014 tentang Perlindungan Saksi dan Korban.

Pasal 5 Undang – Undang No. 39 tahun 1999 tentang Hak Asasi Manusia menyebutkan :

Pasal 5

(1) Setiap orang diakui sebagai manusia pribadi yang berhak menuntut dan memperoleh perlakuan serta perlindungan yang samasesuai dengan martabat kemanusiaanya di depan hukum.

(2) Setiap orang berhak mendapat bantuan dan perlindungan yang adil dari pengadilan yang objektif dan tidak berpihak.

Pasal 16  dari International Covenant on Civil and Political Rights (ICCPR) yang telah diratifikasi dengan UU  No. 12 tahun 2006 menyebutkan bahwa :

Setiap orang berhak untuk diakui sebagai pribadi di hadapan hukum di mana pun ia berada.

Kemudian perlindungan saksi (dan korban) yang lebih luas tercantum pada UU No. 13 tahun 2006 jo UU No. 31 tahun 2014 tentang Perlindungan Saksi dan Korban; sebagai berikut :

Pasal 5 (1) Seorang Saksi dan Korban berhak:

a. memperoleh perlindungan atas keamanan pribadi, keluarga, dan harta bendanya, serta bebas dari Ancaman yang berkenaan dengan kesaksian yang akan, sedang, atau telah diberikannya;

b. ikut serta dalam proses memilih dan menentukan bentuk perlindungan dan dukungan keamanan;

c. memberikan keterangan tanpa tekanan;

d. mendapat penerjemah;

e. bebas dari pertanyaan yang menjerat;

f. mendapatkan informasi mengenai perkembangan kasus;

g. mendapatkan informasi mengenai putusan pengadilan;

h. mengetahui dalam hal terpidana dibebaskan; i. mendapat identitas baru

Pasal 9

(1) Saksi dan/atau Korban yang merasa dirinya berada dalam Ancaman yang sangat besar, atas persetujuan hakim dapat memberikan kesaksian tanpa hadir langsung di pengadilan tempat perkara tersebut sedang diperiksa.

(2) Saksi dan/atau Korban sebagaimana dimaksud pada ayat (1) dapat memberikan kesaksiannya secara tertulis yang disampaikan di hadapan pejabat yang berwenang dan membubuhkan tanda tangannya pada berita acara yang memuat tentang kesaksian tersebut.

(3) Saksi dan/atau Korban sebagaimana dimaksud pada ayat (1) dapat pula didengar kesaksiannya secara langsung melalui sarana elektronik dengan didampingi oleh pejabat yang berwenang.

KESIMPULAN

Berdasarkan data-data dan peraturan-peraturan di atas,  Saudara Mardani H. Maming memiliki cukup alasan untuk memberikan Keterangan Saksi secara daring (elektronik/ online) di Pengadilan Tipikor Banjarmasin.  Karena ini adalah bagian dari Hak Saksi yang telah diatur dalam peraturan-peraturan tersebut di atas dan juga dimungkinkan oleh PERMA No. 4 tahun 2020.

Disamping itu,  keberadaan yang bersangkutan yang memang sedang berada di negara lain alias tak dapat hadir ke Banjarmasin adalah hal yang patut diperhitungkan oleh Majelis Hakim. Majelis juga perlu mempertimbangkan asas persamaan.  Ketika saksi lain dapat memberikan keterangan secara daring,  maka Sdr. Mardani H. Maming-pun, atas nama keseteraan di hadapan hukum (equality before the law), memiliki hak yang sama untuk memberikan keterangan secara daring.

Selanjutnya,  Hak-hak dan perlindungan saksi telah diatur secara tidak langsung dalam UU No. 39 tahun 1999 tentang Hak Asasi Manusia dan pada UU No. 12 tahun 2006 tentang Ratifikasi Kovenan Hak-Hak Sipil dan Politik (ICCPR).  Serta, diatur secara langsung oleh UU No. 13 tahun 2006 jo UU No. 31 tahun 2014 tentang Perlindungan Saksi dan Korban.  Maka, sepatutnya aparat penegak hukum (APH) menghormati hak-hak ini atas nama hak asasi manusia dan prinsip keadilan dan kesetaraan di hadapan hukum.

(Oleh: Assoc. Prof. Heru Susetyo, SH. AP. LL.M. M.Si. Ph.D )
(Pengajar Tetap Fakultas Hukum Universitas Indonesia)

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