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


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


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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