THIS Monday, members of the Witness Protection Coalition will be directing their attention to the House of Representatives (DPR) as it commences deliberations over the long-awaited Witness and Victim Protection Bill. The bill is hoped to provide witnesses and informants legal protection in exchange for their help in exposing crime, particularly crimes of corruption. “Although the deliberations will be closed, we will continue to monitor them,” said Coalition spokesperson, Supriyadi.
Representing the organizations of Jakarta Legal Aid, Elsam, Komnas Perempuan and Walhi, the Coalition has promised to ensure that the DPR acts in accordance with the primary aims of the bill. The bill has caused problems from the beginning. The drafting process was complicated, a proposal from 40 DPR members submitted on May 19, 2002. The bill was slated for completion in 2005, but news that the bill would finally be deliberated only surfaced last week with the formation of a working committee assigned to push through the bill.
According to one of the bill’s drafters, Agus Purnomo, the bill was devised to prevent witnesses from being persecuted as a result of giving testimony. In 2001, Endin Wahyudin reported the existence of judicial bribery at the Supreme Court. In return, Wahyudin was charged with defamation and sentenced to three months in prison. “The laws are also aimed at anticipating the increasing number of crimes being committed through established crime syndicates, like drug and terrorism networks,” said Purnomo.
The Criminal Code does not contain a specific witness protection mechanism. However, witnesses are afforded certain rights under the code. Witnesses are protected in corruption cases under Article 15 of Law No. 30/2002 on the Commission for Eliminating Crimes of Corruption. Government Regulation No. 2/2002 on Protection for Witnesses of Grave Human Rights Violations affords protection to human rights abuse case witnesses. And victims of sexual abuse are protected by Law No. 23/2004 on the Elimination of Domestic Violence.
But, according to Legal Aid Policy Change Division coordinator, Indri Oktaviani, this compilation of disjointed legislation does not provide witnesses with strong protection. According to Oktaviani, the Laws for Elimination of Domestic Violence offer only limited protection to victims. “However, in domestic violence cases, it is not just victims who suffer persecution. Even witnesses face threats,” she explained.
Protection for witnesses reporting crimes of corruption is also lacking, chiefly due to the vague legislation. “Exactly what sort of protection is being afforded needs to be clarified and emphasized,” said Corruption Eradication Commission (KPK) advisor, Abdullah Hehamahua. According to Hehamahua, the KPK is hoping that the enactment of witness protection laws will greatly assist in the investigation of corruption cases, particularly those involving the judiciary.
However, the present Witness an Victim Protection Bill is still far from perfect. According to Witness Protection Coalition spokesperson, Supriyadi, the bill should cover five main issues: the distinction between witnesses and victims; the rights of witnesses; the formation of the witness protection department; the administration of protective measures; and the role of the public.
One of the main issues under deliberation is the formation of the Witness Protection Department. According to Supriyadi, this department should stand independently from other departments, similar in form to the US Marshal Department in the United States. Supriyadi warns against merging the department into the Indonesian Police Department, arguing that the administration of protection will be obstructed by bureaucratic red tape.
Separately, Director-General of Laws and Regulations at the Department of Justive & Human Rights, Oka Mahendra, acknowledged that deliberations over the witness protection department could get heated. “Would it not be better if this function was simply carried out by an already existing department? This could be done by further clarifying of duties and monitoring powers,” Mahendra suggested.
Another complicated issue is the actual form of protection or compensation to be afforded to witnesses. The bill allows for witnesses to be granted immunity against criminal or civil prosecution in exchange for information. According to corruption case informant, Khairiansyah, informants should be offered immunity from prosecution in exchange for any information which helps facilitate corruption investigations. Khairiansyah suggests that they could exchange such information for a guarantee that they themselves could escape prosecution from the KPK. “They will have to negotiate a deal. The process should be clearly separated,” he suggested.
Khairiansyah himself made a deal with the KPK in exchange for information helping to expose corruption within the General Elections Commission (KPU). However, he was later declared a suspect in a separate corruption scandal involving the embezzlement of state funds by the Department of Religious Affairs. “At the time, the regulations were not complete,” he complained.
According to bill deliberation working committee member, Azis Syamsuddin, dropping charges against cooperative witnesses or informants in exchange for certain information is justifiable. “However, we must look at the motive. If they actively involve themselves in uncovering a corruption scam, they can be given witness protection. If they simply report corruption due to a personal grudge, this could be another matter,” said Syamsuddin. “We may still reduce the sentence against the witness,” conceded Syamsuddin.
However, Agus Purnomo disagreed with this view. According to Purnomo, charges should only be dropped or reduced over witnesses or informants who help the state make substantial gains from their information, like regaining misappropriated state assets. “The maximum compensation which can be given is dropping charges. The minimum could be in the form of reducing the sentence,” said Purnomo.
Separately, the director of NGO Imparsial, Rachland Nasidik, suggested that charges should only be dropped for witnesses testifying in human rights abuse cases. One such example would be a suspect charged with allowing human rights abuse to occur due to a failure to take action. But, those witnesses found to have been actively involved in such a crime should still be prosecuted and punished.
Supreme Court Justice Artidjo Alkostar also expressed opposition to the idea of dropping charges against a suspect simply in exchange for testimony. “If that occurs, the public sense of justice will have been compromised. They have clearly committed a criminal act, so why wouldn’t they be charged?” said Alkostar.
Comprising seven chapters and 32 provisions, deliberations over the bill are expected to finish before the next DPR session on March 24, 2006. The DPR’s Law Commission will then deliberate the results of the working committee prior to submitting them to the Board of Consensus for approval in the House session. Azis Syamsuddin remains optimistic that the bill will be completed fast. “We will go over it three times in a week,” he promised.
Abdul Manan
TEMPO, FEBRUARI 06, 2006-022/P. 40 Heading Law