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FM AMEMBASSY JAKARTA
TO RUEHC/SECSTATE WASHDC PRIORITY 3221
INFO RUEHZS/ASSOCIATION OF SOUTHEAST ASIAN NATIONS PRIORITY
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UNCLAS SECTION 01 OF 06 JAKARTA 000353 
 
SIPDIS 
 
SENSITIVE 
SIPDIS 
 
STATE FOR EAP/MTS, L/LEI FOR BUCHHOLZ 
DOJ FOR CRIM AAG SWARTZ 
DOJ/OIA FOR WARNER/ROBINSON 
DOJ/OPDAT FOR ALEXANDRE/LEHMANN/CRAWFORD 
BANGKOK FOR SONDERBY 
MANILA FOR COLE 
 
E.O. 12958:  N/A 
TAGS: PREL PGOV KCRM KJUS CJAN KTIA ID
SUBJECT: FIRST ROUND OF U.S.-INDONESIA MLAT NEGOTIATIONS 
 
 
¶1.  Summary.  (U) On January 23-25, delegations from the U.S. and 
Indonesia met in Jakarta for a first round of negotiations aimed at 
conclusion of a mutual legal assistance treaty (MLAT) between the 
two countries.  The discussions were friendly and productive.  All 
participants agreed that an MLAT should add to, rather than 
complicate, existing law enforcement cooperation.  The delegations 
exchanged information about their respective legal systems and 
mutual legal assistance practices, and then began working on draft 
text, using proposals that each delegation had prepared and shared 
prior to the negotiations.  A thorough review of about a third of 
the text was completed.  The delegations agreed that a second round 
of negotiations should occur this year in Washington.  End Summary. 
 
 
¶2.  (U) The U.S. delegation consisted of representatives from State 
L/LEI, the Department of Justice's Office of International Affairs, 
Embassy Bangkok, and Embassy Jakarta.  The Indonesia delegation was 
led by the Department of Foreign Affairs, and included 
representatives from the Attorney General's Office, the Ministry of 
Law and Human Rights, Interpol, the Financial Transaction Reports 
and Analysis Center, the Indonesian National Police and the 
Department of Immigration.  Separately the two delegations (and 
Charg) met briefly with the Attorney General of Indonesia, who 
offered his support for the negotiations. 
 
Indonesia Legal System 
----------------------------- 
 
¶3.  (SBU) At the U.S. request, Indonesia's delegation made a 
presentation on its legal system and its practices with respect to 
mutual legal assistance.  Indonesia has a civil law system inherited 
from the Dutch, under which law is mainly governed by statutes.  In 
the criminal law field, the two main statutes are the Penal Code and 
the Code of Criminal Procedure, although various other statutes have 
been enacted to address specific crimes such as terrorism, money 
laundering, and corruption.  These specific statutes include both 
substantive offense definitions and procedural provisions, such as, 
for example, creation of special courts or provisions to allow for 
introduction of electronic evidence.  Indonesia explained that, 
where a specific law conflicts with a more general law such as the 
criminal procedure code, the more specific law controls.  They 
further explained that this would be true of a ratified treaty as 
well - if Indonesia ratified a mutual legal assistance treaty with a 
particular country, its provisions would supersede any contrary 
provision contained in Indonesia's general mutual assistance law. 
(Note: This is an important point, as there are provisions in 
Indonesia's mutual assistance law that would pose significant 
problems for the United States, as noted below.  Indonesia suggested 
that its Law on International Treaties would clarify and confirm 
this point.  Post will obtain an English translation of that law for 
the U.S. delegation.  End Note) 
 
¶4. (U)  Under normal Indonesia criminal procedure, the police will 
begin an investigation of a crime based on specific, known charges 
and a suspect.  Where no suspect has yet been identified, the police 
can undertake a "preliminary investigation," which is still part of 
a criminal proceeding.  The police will create a dossier, the 
primary contents of which are summaries of witness statements 
prepared by police investigators.  Once the dossier is complete, it 
is given to a prosecutor who reviews it and, if he agrees it is 
complete, presents it to a court.  If the judge believes there is 
sufficient evidence, he will order the dossier "admitted," which 
amounts to requiring the defendant to appear at trial.  Only five 
kinds of evidence are recognized under the criminal procedure code: 
witness statements, expert statements, documents, a defendant's 
testimony, and "indication," loosely equivalent to circumstantial 
evidence.  The judge plays an active role in questioning witnesses 
at trial.  At the end of trial, a prosecutor will recommend a 
sentence in addition to arguing for a conviction.  The judge decides 
guilt and sentence at the same time; a person can be found guilty 
only if there are two forms of evidence and the judge also believes 
the person is guilty.  The prosecutor is then responsible for 
executing the sentence. 
 
¶5. (U)  With respect to mutual legal assistance, Indonesia's 
practice is now governed by the Mutual Assistance in Criminal 
Matters Law of 2006, although previously Indonesia provided 
assistance on the basis of reciprocity.  The mutual assistance law 
spells out procedures to be followed, the types of assistance that 
can be granted, and reasons for refusing requests.  Indonesia's 
delegation indicated that, for the purpose of treaty negotiations, 
while its proposed treaty is based on its law, it is not bound by 
 
JAKARTA 00000353  002 OF 006 
 
 
any of these provisions.  Rather, so long as Indonesia law does not 
prohibit it, a treaty may add any practice or procedure, in 
particular so long as it advances the principles of Indonesia's 
criminal procedure code (one of which is efficiency).  Indonesia has 
mutual assistance treaties with Australia and China, has signed but 
not ratified treaties with Korea and ASEAN, and will soon sign a 
treaty with Hong Kong. 
 
¶6. (SBU)  When a mutual assistance request is received, the various 
agencies with responsibility for executing such requests will meet 
under the auspices of the Department of Foreign Affairs.  They 
collectively determine whether and how the request should be 
executed.  For example, if a request is at the investigative stage, 
it will be executed by the police, because the police handle 
investigations in Indonesia.  In general, requests will be executed 
according to the procedures in the mutual assistance law. 
 
¶7. (SBU) The U.S. delegation, in reviewing the mutual assistance 
law, found several potential problems which were discussed.  For 
example, the law speaks of assisting in "investigations," but that 
is a term of art in Indonesia (as noted above, a formal stage of the 
process).  The U.S. delegation described the grand jury process in 
the United States and Indonesia's delegation expressed confidence 
that it was sufficiently similar to Indonesia's investigations 
and/or preliminary investigations that it would be able to provide 
assistance.  Similarly, the law seems not to contemplate being able 
to compel a witness to testify for a foreign state's proceeding, but 
Indonesia's delegation clarified that, if a court order is needed 
because a witness refuses to testify voluntarily, either the police 
or prosecutors can obtain one, and that the police also have the 
authority to compel witnesses to testify if necessary.  The 
delegation further clarified that, under its mutual assistance law, 
Indonesia can collect evidence on behalf of a foreign country even 
if it could not use the same kind of evidence itself - for example, 
electronic evidence in a case that did not involve one of the 
specific crimes for which electronic evidence is admissible in 
Indonesia.  The U.S. delegation will continue to explore such issues 
in connection with specific types of assistance contemplated under 
the treaty. 
 
Proposed Treaty Text 
-------------------------- 
 
¶8. (U) Prior to commencing an article by article review, the 
delegations made general presentations about their proposed drafts. 
Indonesia noted that its text was based on its act and on its prior 
treaties, including most notably the ASEAN MLAT.  In describing the 
treaty, it focused particular attention on articles relating to 
recovery of proceeds of crime, making it quite clear that this 
concept was of paramount importance from Indonesia's point of view. 
The U.S. delegation highlighted three themes that run through its 
proposed text:  the creation of broad, open-ended obligations to 
provide assistance with limited bases for refusal; the creation of a 
partnership of "central authorities" - the experts on either side 
that are to engage in constant consultation to help ensure effective 
execution of requests; and the goal, achieved through various 
specific textual requirements, of ensuring that the result of a 
mutual assistance request is the provision of admissible evidence. 
With those themes in mind, the U.S. delegation briefly identified 
and highlighted key provisions of each article in the treaty. 
 
¶9. (U)  The delegations agreed to consider issues by looking at both 
drafts simultaneously.  Indonesia's delegation prepared a chart 
containing both proposed texts and a column for "agreed text."  All 
agreements that were reached were, of course, subject to further 
consideration, and the delegations agreed that the text would later 
be reviewed for consistency. 
 
Article by Article Review 
------------------------------- 
 
¶10. (SBU)  In the preamble, the delegations discussed the U.S. 
proposal to include the word "prevention" of crime as one of the 
objectives of the treaty.  Indonesia questioned whether that 
encompassed training and other types of general cooperation.  The 
U.S. delegation clarified its intent to cover assistance for crimes 
that might not yet be complete, such as with respect to a terrorist 
plot or the activities of an organized criminal group.  Indonesia's 
delegation agreed to the concept, but expressed concern about the 
translation into Indonesian of the word "prevention."  The 
delegations agreed to use the word "suppression" instead.  The 
delegations also agreed to omit a specific reference, sought by 
 
JAKARTA 00000353  003 OF 006 
 
 
Indonesia, to the confiscation of criminal proceeds as being a goal 
of the treaty, recognizing that it is covered in depth in a specific 
article. 
 
¶11. (SBU)  In Article 1 ("scope of assistance"), the delegations 
discussed the scope of matters for which assistance would be 
available.  The delegations agreed that the MLAT is for criminal law 
enforcement purposes and the authority conducting an investigation 
must be competent to do so in the context of law enforcement (for 
example, legislative investigations would not be covered), but that 
specific language regarding the jurisdiction of the investigating 
authority was not necessary - it would be up to the requesting state 
to ensure it did not submit requests where there was no competent 
authority.  The delegations also agreed that "proceedings related to 
criminal matters" would include administrative and regulatory 
investigations where a criminal referral is possible, such as by the 
Securities and Exchange Commission or in tax cases, as well as civil 
forfeiture actions connected with criminal conduct and grand jury 
proceedings. 
 
¶12. (SBU)  The delegations were in general agreement on the types of 
assistance to be covered.  They clarified that evidence, including 
testimony, could be compelled where necessary.  They agreed that the 
MLAT would not be used to obtain general "information," which was 
more properly obtained through informal cooperation.  And they 
agreed that, in addition to listed types of assistance, the treaty 
should cover any other form of assistance not prohibited by domestic 
laws, regardless of whether it is specifically mentioned in the 
treaty.  With respect to two forms of assistance - arranging for 
people to travel across borders to give evidence and asset 
forfeiture - the delegations recognized that they did not yet have a 
meeting of the minds on the appropriate scope of such assistance and 
agreed to come back to the descriptive language after discussing the 
details in connection with later articles. 
 
¶13. (SBU)  The delegations began a discusion f the issue of "dual 
criminality," as the U.S. daft has a provision requiring assistance 
regardlss of whether the conduct  at issue would be criminl in the 
requested state.  Indonesia expressed adesire to reflect in the 
treaty the provision of its law that allovs h(cretion to refuse an 
assistance request if there isn*o dual criminality.  The U.S. 
delegation explained the importance of being able to obtain 
assistacce for investigations of a wide variety of offense  that are 
often not criminalized in other countrees.  Indonesia acknowledged 
that it did not alwas" have comparable laws - for example, with 
respect to computer crime - but that it would take a broa  view of a 
request and tend to grant it if therew"ere a general crime (e.g., 
fraud) that broadly eescribed the conduct at issue.  Indeed, the 
Indoe sia delegation indicated it had no experience of denying a 
request based on lack of dual criminality, but that if the treaty 
did not reflect the discretion to do so it could pose problems in 
the ratification process, as it would appear the United States were 
obtaining special treatment.  The U.S. delegation indicated the 
importance of having certainty that certain crimes would be covered, 
and suggested potential consideration of a "list" approach. 
Indonesia did not like the list approach, but indicated it would 
consider the issue further and propose language at the next 
session. 
The U.S. delegation also asked for an explanation of the difference 
in Indonesia's mutual assistance act between two articles (6c and 
7a) that each appear to address dual criminality.  Indonesia's 
delegation was unable to articulate a true difference between the 
two provisions.  The U.S. delegation further described why a dual 
criminality restriction is less applicable to the mutual legal 
assistance situation than to extradition, and the sides agreed to 
consider the matter further at the next round. 
 
¶14. (SBU)  In the context of the dual criminality discussion, the 
delegations described some crimes of importance and reviewed whether 
they were covered under respective laws.  Indonesia indicated its 
priorities were terrorism, financial crimes (including bribery, 
corruption, money laundering, bankruptcy, and fraud), narcotics, and 
trafficking in persons, all of which are adequately covered under 
U.S. law.  In addition to these, the U.S. asked about financing of 
terrorism, environmental crimes, antitrust, securities offenses, tax 
offenses, export controls, corporate crimes, intellectual property, 
explosives, immigration, piracy, obstruction of justice, and 
conspiracy and other inchoate offenses, all of which Indonesia 
indicated were adequately covered.  Some questions were raised about 
two important areas - computer crime and racketeering - both of 
which Indonesia felt could largely be covered under general laws. 
In both areas, however, further discussion appeared to reveal gaps 
 
JAKARTA 00000353  004 OF 006 
 
 
in coverage (for example, with respect to computer crime, it did not 
appear any general law would cover the intentional dissemination of 
a computer virus or worm). 
 
¶15. (SBU)  Finally, on Article 1 the delegations agreed that the 
treaty would not cover defense requests, and that the U.S. language 
setting that out was acceptable.  Indonesia also agreed it did not 
require a territorial provision in the treaty.  Both sides agreed 
the treaty would cover the entire territory of the respective 
countries. 
 
¶16. (SBU)  The delegations discussed Indonesia's proposal that the 
treaty have a "non-application" article.  The U.S. delegation 
expressed its view that such articles are not customary and would 
raise questions about other things not listed in the article.  The 
U.S. further pointed out that one of the items on the list - 
enforcement of criminal judgments - appeared to contradict the 
intent of both sides with respect to forfeiture judgments. 
Indonesia agreed to consider this further. 
 
¶17. (SBU)  The delegations next discussed an article on the impact 
of an MLAT on other types of cooperation ("other assistance" or 
"compatibility with other arrangements").  The delegations expressed 
at length their mutual desire to ensure that an MLAT does not 
undermine existing law enforcement cooperation which occurs outside 
of treaty channels.  Indonesia's Interpol representative reiterated 
on many occasions that assistance could continue to be obtained via 
direct police to police contacts.  The delegations agreed that the 
purpose of the treaty was to create a mechanism for obtaining 
admissible evidence - a goal over and above the types of informal 
cooperation that already occur - and that, for example, it would not 
require use of the treaty if the police in one country simply wanted 
to see a document that the police in the other country had.  The 
delegations agreed on the U.S. text for the article, and agreed to 
discuss later its placement in the treaty (it was article 3 in the 
Indonesia draft and article 17 in the U.S. draft). 
 
¶18. (SBU)  Concerning the article on "central authorities," although 
there were few disputes over language, it was clear that the two 
sides had different approaches to the concept.  For the U.S., the 
central authority (Justice's Office of International Affairs) has an 
active role in the preparation of outgoing requests and the 
execution of incoming requests, and the U.S. seeks similar partners 
in other countries.  But Indonesia's central authority is the 
Ministry for Law and Human Rights, and Indonesia described that 
agency's role as, essentially, chairing the interagency meeting to 
decide what to do about requests.  The real work, both with incoming 
and outgoing requests, would be done by the Attorney General's 
Office and/or the police.  The U.S. delegation tried many ways to 
convince Indonesia to attempt to streamline the process further, but 
Indonesia explained that its police and prosecutors were part of 
different agencies and that it needed the interagency coordination 
because of divisions of authority.  Indonesia did indicate, however, 
that its police and especially prosecutors were able to have direct 
contact with central authorities in other countries with respect to 
particular requests and would continue to do so.  In light of the 
Indonesia position, the parties agreed to language expressing the 
role of the central authority as "processing" requests.  The U.S. 
agreed to Indonesia's proposed language regarding the process for 
changing a central authority, and encouraged Indonesia to consider 
such a change. 
 
¶19. (SBU)  A similar problem prevented agreement on language 
regarding the role of the diplomatic channel.  The U.S. prefers 
eliminating the diplomatic channel from MLAT requests, viewing that 
as one of an MLAT's primary advantages over letters rogatory. 
Indonesia expressed the view that its act requires it to maintain 
the option of communicating through the diplomatic channel.  The 
U.S. delegation indicated that option was always available, whether 
or not the treaty said so, as governments could always communicate 
through their foreign ministries if they so choose.  Indonesia 
indicated that the language should remain bracketed for now. 
 
¶20. (SBU)  Most of the article on the content and form of requests 
was identical or close to identical in the respective drafts.  As is 
customary, the draft provides that requests will be made in writing, 
but both sides agreed that, given the distance between the 
countries, it would be appropriate to incorporate the possibility of 
electronic transmission of requests, so long as the authenticity of 
requests could be verified (for example, by a follow-up phone call, 
or perhaps through electronic signature technology).  The 
delegations agreed that translations would not routinely be 
 
JAKARTA 00000353  005 OF 006 
 
 
required, but that sometimes a request would need to be translated 
into Indonesian in order to be executed in Indonesia, and that the 
United States would commonly provide a translation if requested in 
such a circumstance. 
 
¶21. (SBU)  With respect to the contents of requests, the delegations 
could not agree on two items - whether they would include 
information on the subject of an investigation (the U.S. indicated 
such information was often provided in practice but should not be 
required, as it suggests that the identity of the subject might be 
deemed relevant for determining whether to execute a request) and 
whether a "court order relating to the assistance requested" should 
be included.  On the latter point, the U.S. delegation expressed its 
concern about the provision of Indonesia's mutual assistance law 
regarding search warrants.  The law seems to require a requesting 
state to obtain its own warrant for a search in Indonesia and 
forward a copy of that warrant to Indonesian authorities for 
execution, a process that would be impossible in the United States, 
as a court would not issue such a warrant for a search outside its 
jurisdiction.  Indonesia indicated it would have to reflect further 
on this problem.  The delegations did indicate, however, that there 
might be some types of court orders that would be required to be 
included in an assistance request, such as a forfeiture order that a 
state wanted enforced. 
 
¶22. (SBU)  The U.S. delegation sought confirmation, with respect to 
the contents of requests, that the list that the two sides had 
agreed and would put in the treaty would supersede the requirements 
of Indonesia's mutual assistance law, which provides that certain 
items (not included in the draft treaty text) "must" appear in a 
request.  Indonesia's delegation confirmed that Indonesia would look 
to the treaty for the specific requirements with respect to a 
particular country, and that the act provided only general 
guidelines. 
 
¶23. (SBU)  In the article on "limitations on assistance," one of the 
more important issues from the U.S. point of view is whether the 
chapeau of this article includes the word "shall" (as in Indonesia's 
draft) or "may."  The U.S. delegation explained that the purpose of 
the treaty is to create an obligation to provide assistance, not an 
obligation to refuse assistance.  The discretionary word "may" 
always leaves open the option of denying assistance, but also leaves 
open the possibility that assistance would be granted even in a case 
in which a ground for refusal appears to apply.  The U.S. pointed 
out that the UN model treaty and all but one of existing U.S. 
treaties use discretionary language, even with countries that have 
laws similar to Indonesia's.  The Indonesia delegation indicated 
that it understood the U.S. arguments, but that it was not yet 
comfortable ignoring the provisions of its law on this question, and 
that the issue should remain bracketed. 
 
¶24. (SBU)  With respect to specific grounds for refusal, the U.S. 
expressed its preference for a short list, in keeping with the 
overall theme of the treaty to promote assistance.  Both sides 
quickly agreed on limitations for political offenses, military 
offenses (that are not ordinary crimes), and petty crimes (because 
the treaty is to be used for serious offenses).  Both sides also 
agreed to U.S. language allowing refusal of requests when they tread 
upon a state's "essential interests," a term that the U.S. 
delegation defined as amounting primarily to interests of a 
constitutional dimension.  In this respect, the U.S. delegation made 
clear that it would not be able to provide assistance in the 
investigation of certain crimes in Indonesia's penal code that 
amount to speech crimes - criticizing the President or a religion, 
defamation or libel, etc. - because of the First Amendment.  Nor 
would the U.S. be able to assist in debtor cases.  Indonesia 
indicated it had never invoked a similar clause in its draft treaty. 
 The delegations also agreed to a U.S. proposal that requests "not 
in conformity with the treaty" could be denied, as this is often 
useful in addressing defense attorney requests, and to an Indonesia 
proposal that politically-motivated requests could be denied.  With 
respect to two other grounds that had been in the Indonesia draft - 
assurances regarding limitations on use of evidence and interference 
with ongoing investigations in the requested state - the delegations 
agreed that they should be considered in different contexts but not 
as bases for refusal. 
 
¶25. (SBU)  The delegations agreed to bracket for further 
consideration language on double jeopardy.  Both delegations 
indicated that it was possible in each country to prosecute the same 
conduct under different types of offenses without running afoul of 
double jeopardy provisions, and that the issue was the offense, not 
 
JAKARTA 00000353  006 OF 006 
 
 
the conduct.  The U.S. delegation pointed out that the particular 
charges (offenses) might not be known at the time of a request for 
assistance, so that it would not make sense to deny a request on the 
ground that the offense had already been prosecuted.  The 
delegations considered various scenarios in which an assistance 
request might be made, including when a crime affected victims in 
both countries and each country wanted to prosecute the offender. 
Indonesia's delegation indicated it would have to give further 
thought to the issues.  Indonesia's delegation did acknowledge that 
the language of its proposed provision was redundant in covering 
"pardons" as well as convictions, as it explained that under 
Indonesian law, one cannot be pardoned until after one is 
convicted. 
 
¶26. (SBU) Finally, the delegations agreed to include language 
reaffirming that bank secrecy or the presence of fiscal matters are 
not bases to refuse a request, and furthermore that before any 
grounds of refusal are invoked, the central authorities would 
consult to determine if assistance can nonetheless be granted.  In 
addition, the delegations agreed that the central authorities would 
be expected to provide reasons for any refusal of assistance. 
 
Next Steps 
------------- 
 
¶27. (U)  At the conclusion of the third day of negotiations, the two 
sides, at the request of Indonesia, signed a "record of discussion" 
prepared by Indonesia's delegation that generally reflects the 
intentions of the two sides and attaches a copy of the text as 
agreed to date.  The two delegations expressed their mutual desire 
to continue the discussions in Washington, where they will proceed 
to analyze the remaining articles.  The U.S. delegation pointed out 
that there are issues to be considered by each side in advance of 
such negotiations, and that direct contact in the interim might be 
appropriate as well. 
 
¶28. (SBU)  One of the issues that was touched upon tangentially but 
not explored in detail was the role of Sharia law in Indonesia. 
While the Indonesia delegation indicated that Sharia law is separate 
from the penal code, they did acknowledge that, in some regions in 
particular, Sharia law crimes are prosecuted by state officials. 
This is an issue that delegations will need to fully explore in a 
second round. 
 
¶29. (U) This cable was drafted by the U.S. delegation to the 
negotiations. 
 
PASCOE