I

n the context of international community, various sub-systems in the criminal justice system should keep up with new developments.

This holds true in the global response to serious or transnational crimes such as corruption and terrorism -- and for other crimes that threaten stability and public safety. Indonesia needs to follow other nations by joining the fight against transitional organized crime.

However, in the latest twist of the nation’s fight against graft, the Corruption Eradication Commission (KPK) plans to give the status of “justice collaborators” to witnesses and suspects in several high-profile bribery cases, such as the Southast Asian Games athletes’ village scandal.

Under such a scheme, suspects would be given reduced sentences in exchange for testimony against others.

Implementation of the scheme requires care and wisdom so as not to infringe on Indonesia’s criminal justice system and the operating principles of the Criminal Code.

The idea of a justice collaborator arises from Article 26 of the United Nations Convention against Transnational Organized Crime 2000, which Indonesia ratified in 2009.

Its application should not conflict with the principle of law enforcement in Indonesia or violate the principles of Indonesian criminal law, since basically Indonesia follows the continental legal system used in Europe and not the common law system favored in the UK and the US.

The justice-collaborator concept can be applied according to the interpretation of a Supreme Court circular on whistle-blowers and justice collaborators that which is based on Article 10 paragraph (2) of the Law on Witness and Victim Protection, which reads as follows:

“A witness who is also an offender in the same case cannot be released from any legal charges if he is proven legally and convincingly guilty; nevertheless, his testimony can be used by the judge as a consideration to lessen the sentence.”

By law, a witness who is also a defendant, if proven guilty, cannot be exempted from any legal charges, but deserves a sentence reduction if he is not the main suspect, admits to committing the crime, provides information or significant evidence to investigators so that they can uncover serious and organized crime and leads the investigators to the main offenders, who will facilitate recovery of stolen state assets.

In a court hearing of the bribery case related to the tender to build the athletes’ village in Palembang, there was no confession of guilt from either the witnesses or defendants.

In fact, the news reports revealed otherwise, i.e., the people denied the charges and accusations and seemed to “sacrifice” themselves to protect figures they referred to as the “big boss” or “big chief”.

Applying the justice-collaborator scheme in this scandals is hard to accept by use of legal logic. There was no collaborative or cooperative attitude from the suspects or defendants. It is even more absurd if they are given the status of whistle-blower because they are part of the crime that they are accused of.

A whistleblower must not be the main offender or part of the crime that he or she is reporting (see Article 10 paragraph (1) of Law No. 13 of 2006 on Witness and Victim Protection).

Therefore, a person who commits a crime, participates in a crime, provides a facility or opportunity or especially orchestrates the crime cannot play the role of justice collaborator. Principals of a crime as stipulated by Article 55 of the Criminal Code must definitely be punished.

Justice-collaborator status is not a means of negotiation between investigators and suspects. It is, however, the means to uncover a crime based on facts and evidence found during an investigation or questioning of suspects and court hearing.

In the high-profile graft cases involving Democratic Party politicians, justice collaborators must be expected to uncover the leading actor behind the corrupt practices to warrant a reduction in their sentences.

What policymakers and law enforcers need to contemplate and plan for right now is to arrange procedures and requirements for applying the status as whistleblower and justice collaborator in the framework of the existing Corruption Law and Money Laundering Law.

The writer is chairman of the Central Board of Indonesian Advocates Association (Peradin) and a member of the governing board of the National Law Commission.