E-evidence in Indonesia: A new frontier in anti-corruption

5 Sep 2017

Electronic evidence is progressively becoming a key component in corruption cases in Indonesia. Gradually, e-mails, recordings, text messages and social media posts are presented as evidence that can make or break a case. Still, not all law enforcement officers or judges allow this kind of evidence in investigations or courts, nor do they know how to deal with electronic evidence due to contradicting laws, vague regulations and a lack of standard procedures.

To improve the admissibility of electronic evidence, IDLO is managing a project with the aim to strengthen regulations and procedures on electronic evidence in line with international standards, and enhance institutional capacity of Indonesian law enforcement agencies and the Supreme Court when it comes to handling electronic evidence. The project is implemented by non-governmental organisation The Partnership for Governance Reform Kemitraan, with technical support from the Institute for Study and Advocacy for Judicial Independence (LeIP), and will include close collaboration with the Indonesian Corruption Eradication Commission (KPK), a key agency responsible for investigating and prosecuting corruption cases. The project is funded through the Indonesia-Netherlands Rule of Law Fund of the Embassy of the Kingdom of the Netherlands in Jakarta.

In recent years, major corruption cases have generated a great deal of media coverage in Indonesia and illustrate an absence of common understanding about electronic evidence. In 2015, it was revealed through recorded conversations that the Speaker of the House of Representatives asked for a gift of shares from Freeport Indonesia, a major mining company. However, allegations were dismissed after the Constitutional Court ruled that recordings presented in this case were not admissible, as such electronic recordings must be made by law officers only and not by private individuals. This ruling was seen as a step backwards in the fight against corruption, as the Speaker of the House remains in his position and the chair of a major political party.

An ongoing corruption case revolves around the procurement of Indonesia’s national electronic ID card program, better known as e-KTP. Members of the Indonesian House of Representatives and officials from the Ministry of Home Affairs have been declared suspect or have been convicted of embezzling funds - possibly totalling up to US$ 173 million - from the e-KTP program in what has become a major graft case. The CEO of the company contracted to develop and maintain the program was named a key witness, as he would have possessed 500 gigabytes of audio recordings implicating politicians, until his sudden death in the summer of 2017. This is generally perceived to be related to the case. At the time of his death, the Indonesian Corruption Eradication Commission had only been handed a small part of the audio recordings, which now seem to be unaccounted for.

Law enforcement and the judiciary continue to grapple with this new electronic frontier as the unique nature of e-evidence, as well as the ease with which it can be fabricated or falsified, creates hurdles to admissibility not seen with other evidence. Adequate knowledge, skills and capacity to handle electronic evidence have become an important need in Indonesia to promote good governance.  

In support of this, the official kick-off meeting for the Electronic Evidence Handling and Management in Corruption Trials project was held in Jakarta, Indonesia on September 4th, convening representatives from the KPK, the Embassy of the Kingdom of the Netherlands in Jakarta, Kemitraan, LeIP and IDLO. The meeting was organized as both the official start of project activities and for participants to be able to discuss project objectives, expectations of its stakeholders, and how the activities could benefit from Dutch and other international linkages, to supplement the existing relationship with the Netherlands Forensic Institute (NFI).

From left: KPK commissioners Laode Syarif, Saut Situmorang and Basaria Panjaitan; Monica Tanuhandaru, Executive Director of Kemitraan; Rob Swartbol, Ambassador of the Kingdom of the Netherlands to Indonesia.

Mr. Laode Sharief, one of the KPK Commissioners chairing the meeting said that “the relevance of the project was illustrated by a number of current cases getting much attention in Indonesian media.” He cited the fact that 50 per cent of the cases handled by the Commission already involved electronic evidence by 2015, and that figure will only see an increase in years to come.

The relevance of the project was illustrated by a number of current cases getting much attention in Indonesian media

To respond to the pressing needs, the project activities will include a gap analysis of existing legislation, regulations and procedures on electronic evidence in Indonesia with a view to developing a draft umbrella bill in line with international standards and a digital forensic lab to process evidence.

Along with focus groups and public discussions on handling electronic evidence, the project will support the capacity development of law enforcement officers from the KPK, Supreme Court, police force, Attorney General’s Office and Ministry of Law and Human Rights, so as to influence a range of justice actors. Given that electronic evidence is a legal frontier affecting nations worldwide, the project also promotes increased access to international networks, including training at international institutions.  

On a policy level, the project aligns with several main national policies, including those relating to Dutch-Indonesian cooperation.

Electronic evidence [is] an increasingly relevant aspect of the rule of law in both Indonesia and the Netherlands

The Ambassador of the Kingdom of the Netherlands in Jakarta, Mr. Rob Swartbol, remarked that he was “pleased with the project as […] electronic evidence [is] an increasingly relevant aspect of the rule of law in both Indonesia and the Netherlands” as both countries share a “similar legal DNA.” As an outcome, he expressed that “hopefully both countries can learn from each other.”

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Photo: IDLO, Peter De Meij
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