An effective witness protection law that is founded on a genuine attempt to cope with human rights violation is an integral part of a functioning criminal justice system. After years of negotiations, the Indonesian Law on Witnesses and Victims Protection was promulgated on August 11, 2006. Whether the law will help the country out of its continuous corruption scandals and provide victims with the necessary remedies will be seen in future. The law itself, however, shows some serious shortcomings to address its intent.
In Asian courts, a lot of weight is put on witness testimonies, and the protection of witnesses and victims is crucial when dealing with corruption and police torture and other human rights violations. People that are offered to be protected by the police are usually worried as to whether it will be good or bad policemen who will protect them. In many instances the police as a whole are perceived as bad and activities by the police can even present a threat rather than protection.
In other countries, the absence of an effective witness protection law has contributed to decay in the quality of investigations and court proceedings. In Sri Lanka, several cases are known where witnesses were murdered to stop them from providing evidence in court. [2], [4] In the Philippines witnesses are also being killed. [5] Having witnesses coming forward to give evidence and to enable litigation rarely takes place under such circumstances.
Who is protected?
The Indonesian criminal procedure code limits the definition of witnesses to persons who “saw, heard or experienced” the crime. It is the same definition in . (Art. 1.1) In many cases, however, people are even frightened to report a crime. Persons who know about the incident or even possess important evidence but do not fall into the category stipulated by the law do not enjoy any such protection, which means that they can still be subject to intimidation and threats. The security of persons to come forward and publish information is thus still limited, as not everyone who might be able to report an offence or provide evidence is entitled to protection. In the case of serious human rights abuses, this includes the need to safeguard NGOs and other civil society activists.
In particular people who are considered as “providing information without a good intention” (Art. 10.3) are not entitled to protection measures. By avoiding clarifications on who is privileged to make such a judgment and on what basis persons can be incorporated into this category, the text leaves enough space for interpretation in favor of the perpetrators. The AHRC welcomes the inclusion of family members of the victims and witnesses in the protection scheme of the agency. But in addition, all witnesses who are able to provide evidence, irrespective of their relation to the case, should have been included in the law.
Access to protection measures
For people to be included in the protection program which reach the Agency, it has to be ensured that they are processed in a timely manner. The agency is given 7 days to reply, but no provisions are established for speedy requirements in urgent cases, such as human rights cases involving killings by military or police personnel. Moreover, the right to medical assistance and psychological rehabilitation only applies for victims of human rights; victims of domestic violence are not entitled to such assistance and protection.
According to Article 28 of the law, the conditions for protection are based on the importance of the information from the witness or victim, the level of threat, results of medical and psychological analysis, and the criminal record of the witness. There is no mention in the article about the nature of the threat, nor are any indications made in what way these aspects of assessment are to be used.
To terminate the protection measures, convincing evidence of the lack of insecurity is not always needed. Without such evidence, any authorized official can terminate witness protection that was requested by the same official. (Art. 32.1.b)
Protection measures
Protection in the law is couched in vague language, such as “providing a sense of safety”. (Art. 1.6.) It does, however, include “any threat which is related to the testimony.” (Art. 5.1.a). The specific provisions include the right of the witness or the victim to a new identity, relocation, legal advice, and temporary living expenses, (Art. 5.1) but not necessarily to relocation outside the country or retraining to change the field of work as is the practice in other jurisdictions.
None of the vaguely listed protection measures are established with procedural explanations or a code of conduct. In fact, the implementation of the protection itself being a key aim of the agency – is not even touched upon in the document and is thus open to various interpretations and arbitrary application. For comparison, see section 8 of the Hong Kong Witness Protection Ordinance on the establishment of new identities which elaborates on procedures and regulations. [6] Furthermore, a uniform application of the Indonesian Law is not guaranteed for the witnesses and victims.
Moreover, even the spatial setup in Indonesian courtrooms that puts the victim symbolically in a trap between the prosecutor and the defendant while facing the judge affects the “sense of safety” and can, as in the case of other countries, have a considerable impact on the witnesses willingness to testify. [3] Actually, with or without a witness protection law, most witnesses are not willing to testify before the court. The “image” of giving testimony in the Indonesian courtroom is quite frightening for witnesses. They will think twice whether they want to testify.
Who protects
No provisions are made for the protection of witnesses by armed officers to ensure physical safety, nor are any indications given as to who can execute such measures. Only Article 36.1 mandates the agency to “cooperate with other relevant, authorized institutions.” However, such institutions are obliged to carry out decisions by the agency. In the case of other countries, such institutions include the police, the army, certain departments of the Ministry of Interior and certain departments of the Ministry of Justice. In the case of Indonesia, such indications are not given. The law also avoids clarifying communication procedures and duties between the agencies. Hence, bureaucratic delays and procedural shortcomings can be expected.
There are no requirements in the text for the executing protection officers in terms of professional training. However, Article 11.3 suggests the establishment of the agency in local areas. If that results in police involvement in the protection that the law is supposed to provide, the safety of witnesses cannot be guaranteed in all cases, in particular those with perpetrators from the police force as is the case for many serious human rights violations. A local branch would, first of all, be required in areas that are known for frequent violent disturbances, such as Aceh, West Papua, the Malukus and Sulawesi.
The law does also not refer to any right of the victim or witness to choose another police division to conduct the protection measures, once one has been assigned to them. This is important in cases where staff of the local police have been the perpetrator. Witness protection by the Independent Commission against Corruption (ICAC) in Hong Kong, for example, is performed by its own firearms section.
Independence
The agency is accountable to the president (Art. 13.1), Susilo Bambang Yudhoyono. He has the first and the last word on the selection of the initial members (Art. 19) and is the only person permitted to set up regulations regarding the appointment and termination of members. (Art. 25) Under these circumstances, the president himself could even dismiss a member of the agency at his own discretion.
Since the president is given the power to determine of the agency’s mandate holders, the law may present weaknesses when it comes to cases that collide with the interests of the President or other high-ranking officials, under his protection.
Staff
Lack of political will leaves the agency incapable of dealing even with a minimum amount of cases. The seven members in the agency have the responsibility for 235 million Indonesians. The additional secretariat, expected to be appointed by Secretary of State Hatta Rajasa thus has to multiply the number of staff considerably. The law provides for every citizen the equal right to request protection. More than hundreds of cases can be expected to reach the office and each of them requires a qualitative and thorough assessment. Only under such circumstances can effective operation of the agency be expected. Until now, the provision of funding is still pending. Hence, no members of the agency have been chosen, and the whole institution itself is not yet established. The lack of preparation in the past eleven months since the passing of the bill shows that the Indonesian government is not genuinely committed to exercising its laws.
Suggestions
How will the public be informed about access and provisions of the new agency? The enacted law only provides for written requests to be considered by the agency. The independent Commission against Corruption in Hong Kong, for example, provides 24 hour access by telephone, email or in person.
The president holds a lot of power in determining how the agency works and operates, in particular in regard to electing and dismissing members. To prevent abuses of power, more oversight has to be mandated to non-governmental stakeholders.
Funding has to come from the state budget according to Article 27, while at the moment, not enough resources have been provided for the agency to start its operations. The Indonesian Corruption Court, for example, experienced severe problems in its operation because it was underfunded by the state and thus was not able to conduct its work properly as expected by Indonesia’s citizens. If the Witness Protection Agency experiences the same problem, it would just add to a long list of laws without adequate implementation.
Conclusion
The law seems to be tailor-made for cases of corruption, rather than equipping the Agency with protection measures that cover urgent cases and cases of gross human rights violations. Such violations may require immediate attention, especially since it has been reported that such violations are mostly committed by the state apparatus. In cases of extrajudicial killings, for example, an imminent threat exists for victims and witnesses, which requires authorities to intervene right away; they cannot wait for the stipulated length of time for the procedure to be enacted.
Often the law refers to not yet established government regulations without clarifying the scope of the regulations in cases such as compensation for witnesses and victims or the duties and responsibilities of the secretary. This leaves room for measures that defeat the very purpose of this law and are, in fact, able to eventually neutralize the Witness and Victims Protection Law.
The current law with the lack of clearly defined regulations and absent funding commitments does not present the framework for an independent and stable institution that is capable of fully overcoming the issues at stake. In the case of Indonesia, this law is not enough to fulfill the demands of countless victims to a fair system of justice in a country struck by impunity and a corrupt and insufficiently regulated command structure in the police, military and prosecution system.
References
[1] Indonesian Law on Witnesses and Victims Protection with comments by Antikorupsi.org
[2] Killing of a witness in Sri Lanka the case of Gerald Perera: UA-157-2004
[3] Witness Protection in Thailand Special Report
URL http://www.article2.org/pdf/v05n03.pdf
[4] Absence of Witness Protection in Sri Lanka: AS-143-2007, AS-147-2007
[5] Rotten to the Core: Unaddressed Killings, disappearances & torture in the Philippines
URL: http://www.article2.org/mainfile.php/0601/267/
[6] Hong Kong’s Witness Protection Ordinance
URL: http://www.hklii.org/hk/legis/en/ord/564/
[7] Independent Commission against Corruption in Hong Kong (ICAC)
URL: http://www.icac.org.hk/eng/main/index.html
