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Andi Wahyu Wibisana
Faculty of Law, Pancasila University
Humanities Law, Crime, Criminology & Criminal Justice Social Sciences

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Constitutional Failure of The State In Protecting Witnesses: The Perspective of The Pancasila Rule of Law and The Reform of The Criminal Procedure Code RR. Duni Nirbayati; Agus Surono; Adnan Hamid; Andi Wahyu Wibisana
Journal of Law, Politic and Humanities Vol. 6 No. 5 (2026): (JLPH) Journal of Law, Politic and Humanities
Publisher : Dinasti Research

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.38035/jlph.v6i5.3596

Abstract

This article examines whether the absence of legal provisions guaranteeing the right of witnesses to obtain legal assistance from advocates within Indonesia's criminal justice system constitutes a constitutional failure of the State to fulfill its obligations as a Pancasila-based rule of law, and how Law Number 20 of 2025 on the Criminal Procedure Code (KUHAP) responds to that failure. This study employs a doctrinal legal research method using statutory, conceptual, and historical approaches. The analysis demonstrates that for more than four decades, Article 54 of Law Number 8 of 1981 granted the right to legal assistance by an advocate exclusively to suspects and defendants, while witnesses who bear legal obligations imposed by the Statewere denied equivalent normative protection. This legal gap is inconsistent with the State's positive obligations under Article 28D paragraph (1) of the 1945 Constitution of the Republic of Indonesia and with the principles of the Pancasila Rule of Law, which place the balance between rights and obligations at the core of the legal system. Law Number 20 of 2025 represents a significant constitutional correction. However, its effectiveness will depend on the transformation of the legal culture among law enforcement officials, the effective enforcement of sanctions, and the expansion of access to free legal aid for indigent witnesses.
Co-Authors Adnan Hamid Agus Surono RR. Duni Nirbayati