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In handling cases in court, sometimes we encounter situations where the person who will give testimony in a trial is an atheist. The following is an analysis of whether there is an obligation to recite oath or pledge for witnesses who are atheists or who do not have a religion in a trial at the Indonesian Court. We will begin this analysis with questions, namely:

1. Is there a prohibition for people who do not have religious beliefs to become witnesses in trials before the Indonesian Court based on Indonesian law?

Under the Indonesian Civil Procedural Law article 145 HIR, a person who cannot be examined as a witness is as follows:

  1. Direct blood relatives and family of one party according to the descendants of the pass, except in cases of disputes between the parties concerning the circumstances of civil law or of any employment agreement;
  2. Wife or husband of either party, even if there is already a divorce;
  3. Children unknown to have reached the age of 15:
  4. Mentally ill, though sometimes his/her memory is clear.

Based on the above provision, an atheist person is not prohibited to appear before the court as a witness.

Under the Criminal Procedural Law, a person who cannot be heard his/her statement and can withdraw as a witness is stipulated on Article 168 Criminal Procedural Law as follows:

Except as provided otherwise in this law, no testimony may be heard from and withdrawal as a witness is possible for:

  1. “A blood relative or kin directly to the third degree up or down to the accused or who is equally an accused;
  2. A sibling of the accused or someone also accused, a sibling of the mother or sibling of the father, also those who are related by marriage and the children of siblings of the accused to the third degree;
  3. The husband or the wife despite having been divorced from the accused or who is equally an accused.”

In connection with the above provisions, not having a religion or belief is not an obstacle for someone to be a witness. However, this will relate to one of the witness’s obligations, that is, before giving a statement, the witness is obligated to swear an oath or pledge in the manner of his or her own religion, that he will give actual information and nothing but the truth. This matter is stipulated under Article 160, paragraph 3 Criminal Procedural Law which states as follows:

“before testifying witnesses shall be obligated to take an oath or affirmation according to their respective religions, that he will testify to the truth and nothing but the truth.”

2. What is the form of oath that an expert is required to give before giving evidence? How about people who do not have religious beliefs (atheist)?

Regarding the form or procedure of swearing or pledging, religious witnesses, based on the book published by the Indonesian Supreme Court, the Guidelines of Task Implementation and Court Administrative in Four Courts (Pedoman Pelaksanaan Tugas dan Administrasi Peradilan dalam Empat Lingkungan Peradilan) shall be as follows:

  • Islamic witness:

Wallahi or By the Sake of Allah”

“I Swear That I Will Explain the Truth and Nothing but the Truth”

  • Christian Protestant and Catholic witness:

“I Swear/Pledge That I Will Explain the Truth and Nothing but the Truth”

“May God Help Me”

  • Hindu witness:

Om Atah Parama Wisesa

“I Swear That I Will Explain the Truth and Nothing but the Truth”

  • Buddha witness:

Dami Sang Hyang Adi Budha

 “I Swear That I Will Explain the Truth and Nothing but the Truth”

  • In the case of any witness who, because of his or her belief, is unwilling to take an oath, he or she simply makes the following pledge:

“I Pledge that That I Will Explain the Truth and Nothing but the Truth”

The description above shows that both the books published by the Supreme Court and the Indonesian Criminal Procedural Code do not regulate the pronouncement of oath/pledge for witnesses who are atheistic or have no religion.

Although there is no swearing of the oath/pledge for the atheist or not having a religion and every pronouncement of the oath/pledge of each religion has a difference, but we can see that in essence, the pronunciation of the pledges of all religions is almost the same. That is, they have to explain or explain the truth. Therefore, in our opinion, it does not matter whether the witness has a religion/belief or not, as long as the witness is willing to pledge to tell the truth and nothing else and such witness’ statement is valid, it should be considered as witness testimony and not just as witness additional information.

Below we inform you about Tody Daniel Mendel, a Canadian expert who claimed to have no religion while giving a statement at the Indonesian Constitutional Court hearing. In fact, the Constitutional Court Regulation on Procedural Guidance in the judicial review of the Law only includes the pronunciation of oath or pledge for an expert who embraces one of the religions recognized in Indonesia.

Mendel claimed to have no religion, however, it is unclear whether he was an atheist who did not acknowledge the existence of God or was merely has no religion but still believed in God. However, Mendel’s position as an expert in the trial of the Indonesian Constitutional Court Wednesday, 23 July 2008, has become an issue of law itself. Mendel appeared in the Indonesian Constitutional Court through a teleconference as an expert from Risang Bima Wijaya and Bersihar Lubis who reviewed articles of insult and defamation in the Indonesian Criminal Code.

In the hearing, the Head Judge of the Indonesian Constitutional Court at that time, Mr. Jimly Asshiddiqie had confirmed Mendel’s belief. “Tody Mendel has no religion, right? That’s good.” He jokingly said. Currently, the panel of judges of the constitution is indeed gathering witnesses and experts from both the applicant and the government to take an oath or pledge.  

Finally, Constitutional judge Maruarar Siahaan asked Tody Mendel to make a promise. “Because you claim to have no religion, then we will only take your promise,” said Maruarar. Tody Mendel immediately followed Maruarar’s words. “I promise as an expert will explain the truth according to my expertise,” said Tody Mendel.

The issue of oath and pledge is an important matter in the procedural law in the Constitutional Court. Constitutional Court Regulation No. 6/PMK/2005 on Guidelines for Procedures in Law Review Cases even set the oath and pledge pronunciation based on each religion held by the experts. Unfortunately, the pronunciation is not there for someone like Tody Mendel, an expert sets who has no religion.

As stated above, below is the recite of oath regulated on Constitutional Court Regulation No. 6/PMK/2005 on Guidelines for Procedures in Law Review Cases:

Article 22 Paragraph (3)

Expert examination begins by asking for identity (name, place of birth date/age, religion, occupation, and address) and curriculum vitae and expertise; and also asked his willingness to be taken oath or pledge according to his religion to give according to his expertise.”

Paragraph (4)

Pronunciation of oath or pledge of experts:

I swear/pledge as an expert will give actual information according to my expertise.

For the Muslims, the aoth begins with the phrase by the sake of Allah.

For Protestants and Catholic Christians, the oath is  closed with May God Help Me.

For Hindus begins with Om Atah Parama Wisesa.

For Buddhists, the oath starts with “By the Buddha I Swear … and ends with Saddhu, Saddhu, Saddhu.

For believers of other religions,they should  follow their own religious rules.”

Jimly, on his personal website, writes that if there are experts who have no religion, then what is taken from them is not their oath but their pledge. He explained in whatever court such produce is common. In fact, during the five-year existence of the Constitutional Court, the presence of a man like Tody is nothing new.  It is like the taking of the oaths of experts in a criminal case the other day, he explained.

At that time, Jimly had time to ask the expert, William Schabas, whether he was willing to be sworn or promised according to religion or just pledge. Schabas also chose to pledge without associating with any religion. “I would be happy to make a solemn declaration to take a vow. I am not a Catholic, I would prefer to do a secular affirmation if this possible,” Schabas said at the time.

Furthermore, Jimly added that among Catholic and Protestants,  they also usually do not give oath but pledge. However, in the eyes of law, both oath and pledge have the same position. If an oath or pledge is violated, the concerned individual could be subject to criminal penalties for perjury or a false pledge or at least regarded as having committed a disgraceful act.

The provision mentioned by Jimly is Article 242 paragraph (1) of the Indonesian Criminal Code. This provision states that Any person who in the cases that a statutory provision demands a testimony under oath or attaches legal consequences to it, orally or in writing, personally or by special proxy, with deliberate intent makes a false testimony under oath, shall be punished by a maximum imprisonment of seven years. Paragraph (3) of its Article confirms the same position between an oath and as it states, with the oath shall be identified the promise or affirmation which by virtue of general regulations is required or is made in lieu of the oath.

Jimly explained that an expert’s statement is very important. Although it is not absolute, it has a binding power for the judge as a reference in examining the cases handled, explained the Professor of Constitutional Law of the University of Indonesia.

The attorney of the applicant, Anggara, who contacted Tody Mendel as an expert, stated that the belief of the international comparative law expert is not a problem. Although not in an oath, he still pledged, he said. The proof is, the judges considered it not as a problem, he explained again.

The expert from the government who became opposed to Tody’s debate, Mudzakkir agreed with Anggara. In principle, oath and pledge have the same strength or status, explained the expert of Criminal Procedural Law of Islamic University of Indonesia. Despite holding a particular religion, Mudzakkir could have chosen to promise. Personally, I do not want to swear and when that happens, I choose to pledge, since it is, he added.

An example of an examination of an atheist witness in another case can be seen in a hearing of an interstate drug case held at the Surabaya District Court on 25 August 2014. The judge was confused because the witness presented in this case was truly an atheist. The defendant in this trial is Franklin aka Bobby (21), a Nigerian. The witness presented was Lu Xu Mei, a Chinese citizen. Lu Xu Mei is also involved in the circulation case of 1.8 kilograms of crystal meth. The trial usually starts by holding a ritual of taking the oath first. Since the witness was atheist, the judge was silent for a long time, and seemingly confused and trying to find a solution.

Regardless, the witness must be sworn. After a long pause, the judge then asked the woman from Guangzhou to come forward while clasping her hands. Though without a holy book brought to her head, like any other witness. Judge Moestofa, the presiding judge, said, “Follow my words?” to Lu Xu Mei, who answered with a nod. “I swear on Tian’s behalf, I will explain the truth,” said Moestofa who was then imitated by the witness. Tian is the supreme deity that the Chinese believe.

3. How will the Indonesian Court treat evidence provided by an expert if they do not swear based on a religion accepted by the Court?

Based on the description in point 2 above, it is evident that testimony from an atheist person has been done and the court accepts the testimony as witness testimony, but not only as additional information.

4. What is the consequence if the Court treats the evidence of an expert as ‘additional information and not as a testimonial evidence‘?

This concerns the validity of the evidence. Additional information does not have the same evidentiary power as testimonial evidence. Additional information only works as additions besides other information that has been submitted by the parties in the trial, but it cannot be considered as evidence in judges’ decision making.

5. What happens when a party presents a witness who cannot take an oath because such a witness does not have a religion?

Based on the description above, we believe that the witness can still be examined by a judge and the testimony of witnesses who do not have religion can also be accepted as evidence of testimony and not just as additional information.

Hope it’s useful,

FREDRIK J. PINAKUNARY LAW OFFICES


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