Justice Collaborators

In the electronic identity card (e-ID) mega corruption case, which allegedly involves officials of the Home Ministry, business people and a number of members of the House of Representatives, two people have been named as suspects, Irman and Sugiharto. The two former high-ranking officials of the Home Ministry have proposed to the Corruption Eradication Commission (KPK) to become justice collaborators (JC).

What benefits are gained by the JC? What are the interests of the law enforcers to give the JC status for the perpetrators?

JC\'s important role can be seen from the ruling mafia case in America (1931), god father Al Capone. Investigators were in difficulties to prove Al Capone\'s crime because many corrupt officials and law enforcers had already been under the control of the mafia boss. The difficulties could be successfully disentangled when the investigators managed to convince Al Capone\'s accountant to testify by providing security guarantee and exemption from legal proceedings to him. In short, Al Capone managed to be convicted thanks to the presence of the JC.

In several cases handled by the KPK, there have been a number of defendants who hold the JC status. For example, Damayanti and Abdul Khoir in the bribery case on the road construction project in Maluku. Most defendants in the bribery case to judges at the Medan State Administrative Court held the JC status, except OC Kaligis. One of the most interesting things, Amir Fauzi, a judge at the  Medan State Administrative Court, held the JC status based on the assessment of judges on his decision. Nazaruddin also received the JC status in the Hambalang project corruption case.

Has the granting of JC status been appropriate?

JC regulations

In Indonesia, the embryo of the JC presence can be traced from Article 10 Paragraph 2 of Law No. 13 of 2006 on the Protection of Witnesses and Victims, which was also adopted in Article 79 of Law No. 18/2013 on the Prevention and Eradication of Forest Destruction. The two laws have clauses with the same phrases, namely witnesses who are also suspects cannot be exempt from criminal prosecution, but their testimonies can become a consideration for the judges in relieving  the sentences being imposed.

Even though the term JC has appeared in the UN anti-corruption convention in 2003 which was ratified by Indonesia through Law No. 7 of 2006, the provision of Article 37 Paragraph 2 in the convention is still philosophical. A similar provision also exists in the UN Convention Against Transnational Organized Crimes which was ratified by Indonesia in Law No. 5/2009.

The operationalization of JC status was facilitated with the issuance of the Supreme Court Circular (SEMA) No. 4 of 2011, followed by the publication the joint regulation by the Minister of Justice and Human Rights, Attorney General, National Police chief, the KPK, and the Witness and Victim Protection Agency (LPSK) in the  same year, which regulated the protection for complainants, complainant witnesses and witnesses who wanted to cooperate. Later, stipulation  of the JC issue was  mentioned in Law No. 31/2014 in lieu of Law No. 13/2006 on the Protection of Witnesses and Victims.

The law on witness and victim protection in 2014 can be used as a guideline for the law enforcers in setting the JC because the law has covered requirements for JC, legal treatment for them, and reward to be taken by JC. The entry of the setting of JC in the witness and victim protection law cannot be separated from the philosophy that the fulfillment of JC rights is part of protection for the JC. However, there has not been confirmation thus far whether the granting of JC status in the last two years has been referred to the above witness and victim protection law.

An offender can be declared a JC if he or she has significant information and evidence to uncover the crime, not the protagonist, uncover those who have bigger roles and be willing to return the assets from the crime.

When is the JC status granted? The witness and victim protection law in 2004 gives space for the law enforcement officers to give the JC status since the process of investigation. However, a number of views of the investigators and prosecutors want the JC status be given after the JC candidates testify as witnesses at the trial. This opinion is based on fears that  the JC candidates do not disclose correct information when testifying in court. The concern is justified, but not completely correct.

The writer assesses, the granting of JC status should be carried out since the investigation, if in the investigation process the perpetrators show good intension, given the special handling is part of the reward, could have been enjoyed by the JC since the investigation. The special treatment is in the form of segregation of detention place from other suspects. Also the separation in document inventory from documents from other suspects.

If the special handling for the JC is given too late, it is feared the objective of the uncovering the case being handled cannot be achieved. This is because other perpetrators who have bigger roles do not want the existence of other witnesses who can uncover their crimes. Other perpetrators can use all means, either persuasion or violence, to eliminate witnesses against them.

Fears that the perpetrators or JC candidates do not give correct information in the trial should not be used as a reason to postpone the granting of the JC status because the verdict of the law enforcement officials can still be corrected if the perpetrators violate the cooperation with the law enforcers when they testify in court.

On the other hand, the main actors in a case can stealthily cooperate with the law enforcement officers to localize responsibility. Such a collusion can close the opportunity of the main witness who cooperates to get the JC status.

When referring to SEMA No. 4 of 2011, there is an open space for the perpetrators to cooperate, who are not granted the JC status in the prosecutors\' indictment, get the JC status from the judges. The reason is that in the SEMA the judges are given an authority to name the defendants as JC if they are considered eligible as JC.

Between reward and tricks

It is better for the perpetrators of the electronic identity cards (e-ID) or other corruption cases to consider the possibility of becoming JC. Why? Because by becoming JC, the defendants enjoy a reduction of sentences. The reduction of sentences include a crime probation, special conditional punishment or the lightest criminal punishment among other defendants.

The witness and victim protection law of 2014 even affirms that the judges have to consider in earnest on LPSK recommendation for the fulfillment of the reward for the JC.

The reward also continues until the JC are convicted. They have the right to acquire additional remission and the rights for other inmates. This is in line with Government Regulation No. 99/2012 on the Requirement and Procedures for the Implementation of the Rights of the Prisoners under Guidance in Penitentiaries, which regulates the JC status to get remission for convicts of corruption and other certain criminal offenses.

It is important to note that the existence of JC is advantageous to both parties, namely the perpetrators and the law enforcers. The perpetrators get leniency, law enforcers obtain evidence to prosecute other actors. Therefore, an active role of  the JC on organized crime can lead to the conviction of the perpetrators or bargaining from the law enforcers to the perpetrators. Because  the JC status cannot be separated from the bargaining process, it is reasonable that there are questions from the public related to the granting of the JC status. For example, is it true that the receiver of the JC status is not the main actor? In the case of road development project in Maluku, the judges considered the granting of the JC status by the KPK to the defendant Abdul Khoir, president director of PT Windu Tunggal Utama, was inappropriate. Because, the judges argued that Abdul was the principal actor.

The questions on the granting of the JC status were also raised by the Institute for Criminal Justice Reform (ICJR)  to the Prosecutors Office which issued 670 JC statuses from 2013 to July 2016. The granting of the JC status should be embedded in the process of investigation and prosecution or stated by the judges in the verdict.  If the granting of JC status was made after the verdict, of course it will invite questions.

In order to test the feasibility of the JC status, there should be an institution which is in charge of auditing this. LPSK as an institution which is mandated to give protection to the JC can be involved actively to give consideration in the granting of the  JC status so that its objectivity can be verified to have been in line with those stipulated in the witness and victim protection law.

Regardless of the motive of the perpetrators who propose the JC status as the door of repentance or strategies to minimize penalties, for the legal interests, as long as information of the perpetrators can make the case clearer and ensnare other major actors, the motive of the perpetrators is not important.

However, the good intension of the perpetrators to uncover the crimes of other actors should be considered. The good intension requires that the information being given is not baseless statement, perjury  or conspiracy. This problem, the integrity of the JC candidates is important to be tested by the law enforcers before setting the JC status. The granting of the JC status much also be ensured that it is not born from transactional processes or the politicization of law that targets certain other parties to be made prisoners.

To win the war against corruption, the selection of JC status on those who are not the main actors of the e-ID case can become an entry point to end the role of the corruption god father who is difficult to touch. This war has to be won.

EDWIN PARTOGI

Deputy Chairman of Witness and Victim Protection Agency (LPSK)