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Cablegate: Criminal Procedure Reform Process Takes a New Direction

VZCZCXYZ0003
RR RUEHWEB

DE RUEHJA #0510/01 0570518
ZNR UUUUU ZZH
R 260518Z FEB 07
FM AMEMBASSY JAKARTA
TO RUEHC/SECSTATE WASHDC 3433
INFO RUEAWJB/DEPT OF JUSTICE WASHDC

UNCLAS JAKARTA 000510

SIPDIS

STATE FOR INL BOULDIN
DOJ FOR CRIM AAG BRUCE SWARTZ
DOJ/OPDAT FOR LEHMANN/ALEXANDRE

SENSITIVE
SIPDIS

E.O. 12958: N/A
TAGS: PGOV KCRM KJUS SNAR PHUM ID
SUBJECT: CRIMINAL PROCEDURE REFORM PROCESS TAKES A NEW DIRECTION

REF: A) 2006 JAKARTA 13507

B) JAKARTA 157

1. (SBU) SUMMARY On February 21, Minister of Law and Human Rights
Hamid Awaludin met with the DOJ/OPDAT Resident Legal Advisor (RLA)
to discuss a more fundamental approach to revising the criminal
procedure code. Awaludin expressed his belief that the current
drafting efforts have been too conservative in its approach.
Instead of revising the existing code, he asserted that the goal
should be to establish a new code based on broadly agreed-upon
general principles. Separately, the RLA met with Attorney General
Saleh and his staff to update them on the progress of the criminal
procedure reform. Both meetings reflect a new high-level engagement
on the reform process. End Summary.

MINISTER AWALUDIN TAKES CONTROL OF THE PROCESS
--------------------------------------------- -

2. (SBU) Over the course of the past seven years, an Indonesian
working group that includes representatives from the Ministry of Law
and Human Rights, the Attorney General's Office, and the Supreme
Court has met intermittently to revise the existing 1981 Code of
Civil Procedure. During that period the group proposed various
revisions to the code, most notably establishing a new institution
of supervising judges who would conduct judicial review of certain
investigatory steps. Despite the length of time that the draft code
has been under development, however, the working group's draft did
not significantly depart from the 1981 Code, which itself contains
many of the shortcomings inherited from the Dutch colonial period.

3. (SBU) In an effort to jumpstart the process, the RLA conducted
two drafting sessions with the working group in December 2006 and
January 2007. Both programs led to a number of significant changes
to the draft code, but some of the fundamental issues, such as
establishing prosecutorial and judicial control over the
investigative stage, jettisoning the dossier system, reforming the
rules of evidence, defining the role of the judge, and creating a
truly adversarial trial remained unresolved. (Reftel A and B) At
the second session, Minister Awaludin emphasized that the working
group should seize this opportunity to establish new legal paradigms
that reflect the dramatic political and societal changes that have
taken place in Indonesia since the 1981 Code was enacted.

4. (SBU) On February 21, Minister Awaludin met with the RLA and
two members of the working group to discuss the need to develop
deeper changes to the code. Minister Awaludin expressed his belief
that the working group had been too conservative in its work and
indicated a lack of confidence in its leadership. Instead of
revising the code, they should be writing a new one. He also
expressed his view that the different justice players -- the police,
the Attorney General's Office, and judges -- were too focused on
their individual institutional concerns. He asked the RLA to
prepare for him a list of the fundamental values that the new code
should embody and what major changes were necessary to bring them
about. He then announced that he would give the working group a
chance to consider these new ideas, but also bring a group of
outside experts -- U.S., European, Malaysian, and domestic -- to
reach agreement on the fundamentals. Then he would reach out to the
different justice institutions to explain the new framework.
Finally, the actual language of the code would be worked out. The
Minister informed the RLA that he wanted the new code to be a
"masterpiece."

5. (SBU) Based on Minister Awaludin's request, the RLA submitted a
list of key principles that the new code should reflect: (1) a
neutral judiciary; (2) protection of human rights; (3) checks and
balances in the investigative process; (4) transparency at trial;
(5) equality between the parties; (6) evaluation of all legally
obtained evidence; (7) consensual resolution of cases; and (8)
protection of the rights of victims. The RLA proposal detailed what
broad procedural rules must be in place to achieve each of these
principles.

ATTORNEY GENERAL SALEH ENGAGES
------------------------------

6. (SBU) On February 15, Attorney General Saleh requested that the
RLA give a presentation on the status of the criminal procedure
code. In addition to the Attorney General, approximately twenty of
the AGO senior leadership attended the ninety minute meeting.
Following the RLA's overview of the changes currently contained in
the draft code, the Attorney General and his staff asked questions.
The questions of his staff indicated that the AGO's two primary
concerns were whether the supervising judge would impinge on their
prosecutorial control and whether the new code would restore their
control over the police during the investigative stage.

COMMENT
-------

7. (SBU) Over the past two months, the working group has been
receptive to significant improvements to the code. However, several
of the proposals from the U.S. legal experts would have necessitated
fundamental changes to the existing system, something the working
group was not yet ready to undertake. Minister Awaludin's new
direction in the drafting process opens the door to more fundamental
revisions to the code that could allow the Indonesian criminal
justice system to move from a formalistic inquisitorial system to a
more adversarial, evidence-based system. The meeting at the AGO
showed an encouraging recognition by the Attorney General of the
importance of this process, but questions from many of his staff
confirmed Minister Awaludin's concerns that justice players were
preoccupied with their institutional interests rather than focused
on the broader issues. End Comment.

HEFFERN

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