- President Jokowi Should Cancel Budi’s Appointment and Propose New Candidate
- Collective and Collegial Decision Making in the KPK
- President’s Prerogative Rights in Police Chief Appointment
- Government Regulation In Lieu of Law on Immunity Cannot Fix the KPK’s Current Woes
- Police Must Issue a Warrant to Terminate Investigation (SP3) into Bambang Widjojanto
President Jokowi Should Cancel Budi’s Appointment and Propose New Candidate
Earlier this week, President Joko ‘Jokowi’ Widodo has invited nine leading experts and public figures to provide input related to the conflict between the Corruption Eradication Commission (Komisi Pemberantasan Korupsi/KPK) and the National Police (POLRI). The independent consultative team consisting of law professors, former commissioners of the KPK, former police generals, among others. Although not formally established by a Presidential Decree, the team has provided some input to the president regarding this matter. One of the team’s recommendations is to urge President Jokowi (1) not to appoint Budi Gunawan, who is a suspect of a corruption case, became the Chief of POLRI as well as (2) to propose a new candidate of the Chief of POLRI.
Since all the stages of submission of candidates by the president and consideration by the House of Representatives (DPR) have passed, a number of legislators from the House’s Law Commission urge President Jokowi to immediately appoint Budi Gunawan as Chief of POLRI. However, Law No. 2 of 2002 on the National Police did not explicitly require the president to appoint the candidate who has been approved by the DPR. Therefore, the recommendation of the independent consultative team is not contrary to the law, rather, it is relevant to the current situation. If President Jokowi wishes to have discretion on this issue, he should cancel the appointment of Budi Gunawan and propose a new candidate for Chief of POLRI to obtain the DPR’s approval.
The president may decide to take such discretion because he was faced with the first precedent in which a police chief candidate was named as a suspect in a criminal case. Under the Law on Public Administration, government officials can take discretion when there is an unclear law arrangement. Definition of ‘unclear’ includes: matters which have not been set, the provision is incomplete or uncertain, or that stagnation of government would occur if a problem is not addressed. (RA)
Collective and Collegial Decision Making in the KPK
Decision-making in the Corruption Eradication Commission (Komisi Pemberantasan Korupsi/KPK) which is carried out collectively is referred to in Article 21 paragraph (5) of Law No. 30 Year 2002 on the Corruption Eradication Commission. That article states that the Chairman of the KPK must work collectively with fellow commissioners. In the explanation of Article 21 paragraph (5) of Law No. 30 Year 2002, “collective work” means any decision must be agreed to and decided jointly by the Chairman of the KPK. Development of this term “collective” has come to be referred to as “collective and collegial”. In the implementation of its own decision-making amongst the Chairman and commissioners of the KPK is a principle of collective collegiality, meaning that everyone has an equal vote as well as sharing responsibility for every decision. The collective and collegial decision-making process in the KPK is based on mutual agreement through consultation in stages, where both internal and external issues are decided in the plenary.
On 14 November 2013, the Constitutional Court rejected the judicial review of Article 21 paragraph (5) of Law No. 30 Year 2002 on the Corruption Eradication Commission regarding the KPK’s decision-making process. In its decision, the Constitutional Court considers that the practice of collective and collegial decision-making does not create legal uncertainty and injustice, but rather a collective and collegial leadership is beneficial for the sake of legal certainty and avoiding mistakes in implementing its authority. In addition, the position of the Corruption Eradication Commission is coordinating and supervising institutions authorized to eradicate corruption, which makes the position of the Commission a very important and strategic one.
The number of KPK Commissioners at this time amounts to only four people, due to the selection of the replacement KPK commissioner Busyro Muqoddas having been postponed until the end of 2015. After that came the announcement by the police on 23 January 2015 that KPK Commissioner Widjojanto was now considered a suspect. According to the Law No. 30 Year 2002 on the Corruption Eradication Commission Article 32 paragraph (2), if the Commissioner of KPK becomes a criminal suspect then he has to be suspended from office. On 26 January 2015, Widjojanto submitted a letter of resignation which was later rejected completely by the other KPK Commissioners. On 24 January 24 2015, fellow KPK Commissioner Adnan Pandu Praja was also reported to the police. Then on Wednesday, 28 January 2015, the Presidium of the East Java Community Alliance reported Zulkarnain, another Commissioner of KPK, to the police. The collective concept contained in Law No. 30/2002 is not concerned with the amount Commissioners in KPK. So based on the Law No. 30/ 2002 of the Corruption Eradication Commission and the Constitutional Court Decision No. 49/PUU-XI/2013 the current composition of KPK leadership continues to make decisions well and without any legal obstacles. (PB)
President’s Prerogative Rights in Police Chief Appointment
The replacement of Indonesia’s national police chief in the early period of Jokowi’s reign has not only caused political chaos but also raises legal issues. By letter of president (number R-01/PRES/01/2015), dated 9 January 2015, Jokowi sent the Commissioner General of the Police, Budi Gunawan, as the only candidate of police chief, to the House of Representatives. According to Article 11 Paragraph (1) Law No. 2 Year 2002 on the Indonesian National Police, the Chief of Police is appointed and dismissed by the approval of the House of Representatives (DPR) and which is given 20 days to respond after receiving the President’s letter. During the process, on 13 January 2015, the Corruption Eradication Commission (KPK) suddenly named Budi Gunawan as a suspect of corruption when he was the head of Police Career Development Bureau. But, that status didn’t affect the approval of House of Representatives. On the very next day the House of Representative conducted a fit-and-proper test and the day after approved Budi Gunawan as the Police Chief. This situation has raised public attention and protest.
As a response, several NGOs and legal experts showed their will to file a judicial review of Article 11 of Law No. 2 Year 2002 on the Indonesian Republic Police relating to the appointment and dismissal mechanism of police chiefs. Article 11 states that the Chief of Police is appointed and dismissed by the President with the approval of the House of Representatives. Both Prof. Denny Indrayana and Dr. Zainal Arifin Muchtar, prominent constitutional law experts, said that the appointment of police chief should be the prerogative of the President and the current mechanism is too parliament-heavy. Both experts argued that House of Representatives approval is not needed. But this argumentation seems to require more discussion.
Lord Acton once said, “Power tends to corrupt and absolute power corrupts absolutely”. This maxim seems appropriate to respond to the idea. In a modern constitutional state, there is a strong belief that any power requires checking mechanisms. After 32 years of the authoritarian reign of Soeharto, he has taught us that very lesson, which is also known as the executive-heavy condition. It is not appropriate to conclude that the current condition is parliament-heavy by its bad practice in the House of Representatives. Wouldn’t it be executive-heavy—which is our reason for amending the constitution in the first place—if we give back absolute authority to the President? In this case, we must set the pendulum to a neutral state. We must assume that the approval of the House of Representatives means it has fulfilled its responsibilities as a form of check-and-balance mechanism. The House should have a duty to assess police chief candidates in accordance with the requirements set by law. If not, then we should have little faith that the president will not elect a corrupt person as police chief. It is too risky if the President has absolute power in appointing and dismissing police chiefs. (MS)
Government Regulation In Lieu of Law on Immunity Cannot Fix the KPK’s Current Woes
Discourse on the issuance of Government Regulation in-lieu of Law (Peraturan Pemerintah Pengganti Undang-Undang/Perppu) on immunity for the Chairman of the Corruption Eradication Commission (Komisi Pemberantasan Korupsi/KPK) needs to be discussed more deeply. Moreover, the proposal to publish Perppu on immunity is also aimed at overcoming the problems currently faced by KPK. Immunity is derived from the privileges granted by law in performing certain duties and responsibilities. So, immunity applies not absolutely but is always tied to the context, i.e. limited to fulfilling certain duties and responsibilities according to the law. Immunity does not mean ignoring one’s responsibility before or after carrying out certain tasks.
The Law No. 30 Year 2002 on the KPK has not been set up to create the right of immunity for the commissioners of KPK. As a matter of discourse, certainly this is something that can be considered in the future. But if this Perppu is aimed at solving the problems being faced by KPK, this point is not exactly relevant. Hence, the urgency of the constitutional requirement to issue Perppu is what is in question. One thing that should be highlighted is the fact that according to Art. 32 (2) Law No. 30/2002 on the Corruption Eradication Commission, the commissioners of the KPK are able to be dismissed temporarily whilst they remain a suspect. This provision should be revised and tightened. The aim is to minimize the potential criminalization which has thus far been repeated over and over.
Improvement is also needed with regard to the determination of a suspect in Law No. 8/1981 on Criminal Procedure Code, especially by introducing an adequate examination mechanism. This is a part of an effort to control the discretion of law enforcement officials in order to restrict their arbitrary actions. Currently, the Criminal Procedure Code is not geared to regulate the examination mechanism on the determination the suspects. For that, the idea of extending pre-trial mechanisms as regulated in Art. 77 of the Criminal Procedure Code must become a necessity. (MSG)
Police Must Issue a Warrant to Terminate Investigation (SP3) into Bambang Widjojanto
The arrest of Corruption Eradication Commissioner (Komisi Pemberantasan Korupsi/KPK), Bambang Widjojanto, by the National Police’s Criminal Investigation Unit is a form of arbitrariness and not based on law. This arrest cannot be separated from the context of the investigation into corruption by the Commission against the alleged Comr. Gen. Budi Gunawan. It is recognized that the criminalisation of ex-KPK Commissioner Bibit-Chandra and KPK investigator, Novel Baswedan has the same pattern with that of Widjojanto. Police, unjustly and without warrant, alleged, using Article 242 in conjunction with Article 55 of the Criminal Code, that Bambang Widjojanto directed a witness to give false testimony in a trial regarding a regional election dispute in 2010. The allegations were repeatedly clarified and cleared by both a selection committee and the House of Representatives when Bambang Widjojanto was running as a candidate for KPK Commissioner.
In addition to unreasonable allegations in determining Bambang Widjajanto as a suspect, the arrest also violated the existing formal procedures. According to Article 19 paragraph (2) of the Criminal Procedure Code, the arrest could not be made, unless the suspect has failed two times in a row to respond to summons notices without a legitimate reason. The arrest of Bambang Widjojanto was not preceded by any summons against the suspect. At the time of arrest, the arrest warrant shown by police officers of the Criminal Investigation Police unit was addressed incorrectly. Article 18 paragraph (1) of the Criminal Procedure Code requires that a warrant of arrest needs to include the identity of the suspect and state the reason for the arrest and a brief description of the case, in order to prevent arbitrary arrests by the police. Besides the two formal procedures that have been violated, the arrest of Bambang Widjojanto using handcuffs was extreme, considering there was no resistance against the police.
The National Police should immediately issue a warrant to terminate the investigation into Bambang Widjojanto. Referring to Article 109 paragraph (2) of the Criminal Procedure Code, the investigator may stop the investigation based on the following reasons: 1) there is no sufficient evidence, 2) the events under investigation are not a criminal offense, and 3) the termination of investigation by law. This latter point specifically refers to Indonesian laws which prohibit persons to be charged with the same allegation twice and/or the investigation reaches its expiry. Moreover, for the sake of upholding the law, sanctions should be imposed on the National Police’s Criminal Investigation Unit Chief Comr. Gen. Budi Waseso, because of his arbitrariness in arresting Bambang Widjojanto. (ED)