Parliament
The Gap of Legal Basis in the Members of Parliaments’ Pension Facilities
The legal basis of pensions to members of the House of Representatives is regulated in Law No. 12 Year 1980 on the Financial/Administrative Rights of the Leaders and Members of High/Highest Institutions of the Country as well as Former Leaders of High/Highest Institutions of the Country and Former Members of High/Highest Institutions. Meanwhile, the existence of Law No. 27/2009 on the People’s Consultative Assembly, House of Regional Representatives, House of Representatives and Regional House of Representatives (the MD3 Law) only acknowledges financial rights as one of the privileges of members of the House of Representatives, not going into details of pension funds. Therefore, a critical note on pension rights should also cover the existence of Law No. 12 Year 1980, not just the MD3 Law.
Article 12 from paragraph (1) of Law No. 12 Year 1980 states that leaders and members/officials of high institutions who’s been honorably discharged from their positions reserve the right to pensions. It should be underlined that there is an “honorably discharged from position” category according to Law No. 12 Year 1980. However, generally this category is not because of being forced to resign due to indication of violation like in the “dishonorable discharge” category. Often members of the House of Representatives quit beforehand or are forced to step down rather than being dishonorably dismissed by their party or by the Ethical Body. The assumption is if one quit rather than being fired; it is still possible for them collect their pension still. We consider a display of such behaviour is exploiting the legal gap in Law No. 12 Year 1980.
In addition, Law No. 12 Year 1980 still uses the term or nomenclature of high/highest institutions. In fact since the 1945 Constitution amendment, this term was no longer used. It should be known that Law No. 12 Year 1980 will be revised and has been entered into the 2010-2014 National Legislation Program; and actually it was on the list since the 2005-2009 National Legislation Program. The exploitation of the existing gap should be on the first agenda while discussing the revision in the future. (RR)
Constitutional Court
Establishing the Board of Ethics of the Constitutional Court
The establishment of the Board of Ethics of the Constitutional Court has harvested many mixed responses from both the Judicial Commission and from the Constitutional Court itself. The main focus shifted from how to rebuild public trust to the conflict between the Constitutional Court and the Judicial Commission. The central matter is that the establishment of the Board of Ethics is considered contradictory to the Government Regulation in Lieu of Law No. 1 Year 2013 on the Constitutional Court. This Government Regulation in Lieu of the Law has mandated the establishment of the Honorary Council of the Constitutional Court by the Judicial Commission along with the Constitutional Court, not the Board of Ethics which was unilaterally established by the Constitutional Court. Consequently, not long after the Board of Ethics was formed, members one by one started to resign. Azyumardi Azra and Saldi Isra argued that one of the reasons for their resignation was because of the unclear position of the Government Regulation in Lieu of the Law on the Constitutional Court. Even so, the Constitutional Court through its chairman, Hamdan Zoelva, state that the establishment of this Board of Ethics does not contradict with the law.
This situation should be resolved so that the severity of the issue does not increase so that it sharpens the feud between the Judicial Commission and the Constitutional Court which affects the latter’s performance effectiveness. Should the argument continue between the two; the final say on this matter should go to the Constitutional Court. A dispute between state agencies should be decide by Constitutional Court and the fact that there was a decision by the Constitutional Court No. 005.PUU-IV/2006 that the Judicial Commission is unauthorized to supervise the Constitutional Court doesn’t make it easier to make a correct policy on this matter. Other than formal procedural steps, a form of informal communication should be put in order to equalize perception, because no matter how you see it, the Government Regulation in Lieu of the Law has been validated and should be implemented. (MSG)
Anti Corruption
The Judge’s Dissenting Opinions towards the Ahmad Fathanah Verdict
The Jakarta Corruption Court Judges Assembly finally gave sentence towards Ahmad Fathanah, case. However, two of the judges gave dissenting opinions upon the case. Justice Djoko Subagyo and I Made Hendra; both stating based on Article 71 of Law No. 8 Year 2010 on Money Laundering Offences; to block an account; it require a sign of consent from the Chief Prosecutor and not from the Corruption Eradication Commission. Another argument to support their opinion; unde Article 72 paragraph (5) of Law No. 8 Year 2010, the public prosecutors are defined to be under the Attorney General and the Chief Prosecutor, not the Corruption Eradication Commission prosecutors. Following the logic of the two judges’ dissenting opinions, the authority to prosecute money-laundering offenses should be submitted to public prosecutors of the local district attorney.
Meanwhile, the Chairman of the Financial Transaction Reports and Analysis Centre (Pusat Pelaporan dan Analisis Transaksi Keuangan / PPATK), M. Yusuf, argues that the authority of the Corruption Eradication Commission to prosecute is not explicitly mentioned as its authority to investigate. In Article 51 paragraph (3) of Law No. 30 Year 2002 on the Corruption Eradication Commission, stated that the commission’s prosecutors are public prosecutors. Article 2 paragraph (3) of the Judiciary Law states that the judiciary is “a whole and is indivisible”. The explanation section of the article clarifies that what is meant by “the judiciary is a whole and is indivisible” is a base towards their performance of prosecuting duties and responsibilities aimed at maintaining the unity of policies in the field of prosecution, therefore able to show traits that converge in the system of thought, code of conduct and Judiciary work procedures based on the law. This provision is known as the een on deelbaar principle.
Therefore, both opinions are equally reasonable. The main concern of this incident is not to dim the spirit of the eradicating corruption all because deciding who is authorized to prosecute money laundering offenses. (RMF)