| Subject: Tempo: Human Rights Court: The
Forgotten Memo [+Witness Protection Law]
Received from Joyo Indonesia News
also: Witness Protection Law
Tempo Magazine No. 28/V/Mar 15 - 21, 2005
Law
Human Rights Court
The Forgotten Memo
An alleged human rights violator escaped prosecution because the
prosecutor failed to attach a legal brief to the appeal case request. But,
there will be no sanction for the prosecutor.
GABRIEL Simangunsong was uncharacteristically quiet upon exiting the
work room of Attorney General Abdul Rahman Saleh last Wednesday, after
being questioned for half an hour regarding his failure to append a legal
memorandum to a human rights violation appeal case. Flanked by Junior
Attorney General for Special Crimes, Sudhono Iswahyudi, and Human Rights
Violation Prosecutor Sub-directorate chief, Widodo Supriyadi, Simangunsom
merely pointed to Sudhono when journalists fired a barrage of questions at
him following his meeting.
Attorney General Abdul Rahman Saleh had summoned Simangunsong for
questioning with regard to an alleged East Timor human rights violation
case involving the then Lieutenant Colonel Tono Suratman.
In April 2003, Simangunsong indicted the former Wiradharma 164 Military
District Commander on human rights violation charges, calling upon the ad
hoc human rights court to sentence Suratman to 10 years in prison. In May
2003, the ad hoc court rejected the prosecution's case and exonerated
Suratman from all charges.
Simangunsong immediately filed an appeal against the court verdict.
However, unfortunately he failed to include a legal brief in his appeal
request. It is a condition that all requests for appeal be appended with
legal memorandums. Last Monday, the appeal case finally came to trial.
However, the presiding judicial panel was forced to release Tono Suratman
on the grounds that the appeal request did not fulfill the procedural
requirements. Presiding over the ad hoc court's judicial panel, Chief
Justice Artidjo Alkostar could not hide his disappointment that Prosecutor
Simangunsong's had negligently failed to attach the legal brief.
Suspicions of foul play have since arisen. However, Simangunsong has
denied deliberately failing to attach the memorandum to his appeal.
"I had not received a copy of the court verdict," Simangunsong
told journalists when asked about the case. Nevertheless, judicial panel
chair of the ad hoc court adjudicating over Tono Suratman's case, Andi
Samsan Nganro rejected Simangunsong's claim. Nganro, who now presides over
the Cibinong District Court in Bogor, maintains that the ad hoc court
verdict was typed up in 10 copies. "Copies of the verdict were
distributed to the judges, the prosecutor, the lawyers, and court clerk
and one was kept for the archives," Nganro told Tempo.
Nganro claims that he was approached by Simangunsong several days after
the court verdict had been issued. According to Nganro, Simangunsong asked
for an official copy of the verdict whereupon he advised Simangunsong to
contact the court clerk. However, Attorney General's Office (AGO)
spokesperson, R.J. Soehandojo, claims that Simangunsong received a copy of
the verdict on June 16, 2003. According to Soehandojo, the deadline for
submitting the legal brief with the request for appeal expired on June 17,
2003. "So, although he received a copy, Prosecutor Simangunsong did
not have time to compile a memorandum for the appeal case," said
Soehandojo.
According to Soehandojo, Simangunsong actually prepared a legal brief
for the case on June 14, 2003. However, this was based on an unofficial
copy of the court verdict, which had not been stamped by the court or
signed by the judge. "There were some elements in that copy that did
not match the trial facts," explained Soehandojo, reporting what
Simangunson had told him. According to Soehandojo, Simangunsong chose not
to attach his legal brief to the appeal case due to this disparity in
facts.
Nevertheless, Soehandojo still acknowledges that Simangunsong had been
negligent. Although, he added that since Simangunsong was already retired,
the AGO could not sanction him. "The Government Regulation on
Disciplining Public Servants no longer applies to him," explained
Soehandojo.
According to Yan Juanda Saputra, one of the attorneys on Tono
Suratman's defense team, the court was correct in exonerating his client
from all charges. "The prosecutor failed to attach the legal brief to
the case," he noted.
Saputra explained that Simangunsong's negligence was fatal. Saputra
invited the AGO to file for judicial review if it is dissatisfied with the
court verdict, but warned: "The prosecution must have new evidence to
file for judicial review."
Sukma N. Loppies, Yuswardi A. Suud, Maria Ulfah, Istiqomatul Hayati
-------------------------------------------------
Tempo Magazine No. 28/V/Mar 15 - 21, 2005
Law
Witness Protection
Protective Covering
The DPR is being pressed to commence deliberations over the Witness
Protection Bill. It is hoped that the legislation will facilitate the
government's plans to crack down on corruption.
HOLLYWOOD has introduced an important legal concept to the world—the
witness protection program. Any person fond of mafia films like Goodfellas
should already be familiar with the program, in which key witnesses who
plan to testify against notorious gangsters are put in a witness
protection program, given a new identity, a new job, and even a new place
of residence; to avoid being harassed, prevented from testifying, or even
murdered.
Now in Indonesia, the legal system is rapidly developing to cover
concepts like the witness protection program. This program is currently in
the pipeline, in the form of the Witness and Victims Protection Bill. This
initiative represents another attempt by legislators to shed Indonesia's
image of having one of the most outdated legal systems in the world.
Coordinator of the Witness Protection Coalition, Danang Widoyoko,
illustrates the importance of the legislation through this example:
Syahdan, a public servant working in a government department becomes aware
of a major corruption scandal occurring in his office. But, Syahdan is
concerned that if he exposes the scheme, he will be demoted or even fired.
He also realizes that if he stays quiet, the situation will continue to
get worse. Despite possessing ample evidence, Syahdan decides to play it
safe and remain quiet.
According to Widoyoko, countless government officials and public
servants are unwilling to report corrupt practices taking place in their
own office, well aware of the repercussions and consequences of reporting
these practices. "This is why we are pushing for the immediate
deliberation of the Witness Protection Bill," said Widoyoko, who is
also Deputy Chairperson of Indonesia Corruption Watch (ICW) Worker's
Union.
Representing a number of NGOs including the Jakarta Legal Aid
Foundation, Elsam, Komnas Perempuan, Walhi and the National Law
Commission, members of the Witness Protection Coalition visited the DPR
last Monday, demanding that the DPR push deliberation of the Witness
Protection Bill up their agenda. "The government has already promised
that it would begin deliberations over the bill in this year's first
semester," explained Widoyoko. According to Widoyoko, the
government's plan to eliminate corrupt practices through its
anti-corruption legislation and Corruption Eradication Commission (KPK)
will fail unless this legislation is enacted.
The Witness Protection Bill is already awaiting deliberation by the DPR.
The bill is currently ranked 27 of 55 bills listed by the DPR Legislative
Board to be deliberated in 2005. "The bill was initiated by the DPR.
Witnesses and whistle blowers must be protected because they are key
elements in providing evidence in court," said Tumbu Saraswati, one
DPR member representing the PDI-P (Indonesian Democratic Party of
Struggle) faction, who also participated in drafting the bill.
According to Saraswati, the bill was submitted to former president
Megawati Sukarnoputri in February 2003 but remained on hold until she was
removed from office. In fact, Megawati did not even issue a presidential
mandate appointing one of her ministers to deliberate the bill. It is only
now that the bill has again resurfaced at the DPR.
If the Witness Protection Bill is enacted, it will become an important
source of protection for people intending to expose a variety of criminal
activities. Comprising seven chapters and 32 articles, the law threatens
any person attempting to prevent a witness from obtaining protection and
thereby preventing the witness from giving testimony, with a penalty of
four years in prison. Also under the law, any person who denies any
witness or witness family members work because of testimony given in court
faces a penalty of seven years in prison.
"Witnesses are often intimidated by people or parties whose
interests are being threatened. We hope that this will not continue to
happen," said Saraswati. According to Saraswati, legislators even
considered rewarding whistle blowers for reporting corruption cases, but
eventually decided against this, concerned that it might encourage false
reporting. "We dropped the idea because of concerns that it could
encourage false reports driven by monetary rewards," he said.
This bill also mandates the establishment of the Witness Protection
Department, which aims to protect witnesses or victims of violence who
feel threatened. Based on a recommendation from this department, a witness
can receive a new identity or even new place of residence. "Many more
crimes will be exposed if this legislation is enacted," said Rachland
Nashidik, Executive Director of Imparsial. "Even Munir's case will be
exposed because so far too many people with information have been
unwilling to speak for fear of retribution," Nashidik added.
According to DPR Legislative Board Chairman, Muhammad A.S. Hikam, the
DPR and the government have prioritized the Witness Protection Bill. So,
although the bill is ranked 27th on the list, this does not indicate that
the bill is of little significance. "The bills that are ready for
deliberation are pushed through first," he said.
Pressure to deliberate the Witness Protection Bill not only comes from
NGOs, but also from the Regional Legislative Council (DPD) legislative
planning committee. The committee has pushed both the DPR and the
government to complete work on the bill. "We will advocate the
opinion that people who should be considered heroes must not end up being
victimized," said DPD Legislative Planning Committee Chairman, Wayan
Sudirta. Sudirta also made reference to the case of Endin Wahyudin, a
whistle blower who accused a prominent Supreme Court justice of corruption
but was recently convicted by the courts of committing defamation.
In the meantime, the Director-General of Laws and Regulations at the
Department of Justice, Abdul Ghani Abdullah, declared that the government
was ready to deliberate the bill. Abdullah added the Department of Justice
planned to contribute input to the bill, suggesting that witnesses be
spared from meeting defendants in order to better protect their identity.
"This bill is important. We are already behind other countries, which
provide their judges and prosecutors with security escorting,"
Abdullah added.
If the Witness Protection Bill is enacted into law, the pseudo-reality
of Hollywood-style witness protection programs could be translated into
the reality of the Indonesian legal system to assist the government
eliminate corruption.
L.R. Baskoro, M. Nafi, Badriah
Key Provisions of the Bill
THE Witness and Victims Protection Bill is hoped to protect witnesses
and victims of criminal activities. The following are some of the
important provisions contained within the bill.
Article 6 # Victims of crimes of violence and human rights violations,
apart from receiving the rights granted in Article 5, also have the right
to receive assistance in the form of: medical assistance; # psycho-social
rehabilitation assistance.
Article 26 Any person who in any way obstructs witnesses and/or victims
from receiving protection and assistance in accordance with Article 5
chapter 1 (a), (d), Article 6, or Article 7 chapter 1, faces a maximum
penalty of five years in prison and/or a maximum fine of Rp300 million.
In the event that such action is committed by a public official, the
penalty is raised by one-third.
Article 29 Any person who informs the whereabouts of a witness and/or
victim currently under protection, the whereabouts of whom are kept
confidential by the Witness and Victims Protection Department, in
accordance with Article 5 chapter 1 (k), faces a maximum penalty of three
years in prison and/or a maximum fine of Rp100 million.
In the event that such action is committed by a public official, the
penalty is raised by one-third.
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