The Petitioners\' experts Denny Indrayana, M. Busyro Muqoddas, and Ridwan (left to right) in the judicial review hearing of the Corruption Eradication Commission (KPK) Law, Wednesday (12/2) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.
JAKARTA, Public Relations of the Constitutional Court—A follow-up judicial review hearing of Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the Corruption Eradication Commission (KPK Law) for petitions No. 59, 62, 70, 71, 73, 77, 79/PUU-XVII/2019 was held by the Constitutional Court (MK) on Wednesday (12/2/2020) to hear the statements of experts for the Petitioners.
Constitutional law expert Denny Indrayana said the spirit of anticorruption was the foundation for the birth of constitutional amendments that brought the Reform. "So, it is very clear that the spirit of anti-corruption influenced our constitution and therefore the spirit of anti-corruption is put into the 1945 Constitution," Denny said to the panel of justices led by Chief Justice Anwar Usman.
Denny said independence is one of the KPK\'s spirits. Denny said one of the problems in the KPK supervisory council and the revision of the KPK Law lies in how they damage the principle of independence.
"How the KPK was later included in the executive agency, no longer an independent agency. In our opinion, the supervisory council with all its authorities, especially in licenses related to forceful law, wiretapping, search, and so on, in our opinion has entered into a level that damages the independence of the KPK," Denny explained as an expert in Case No. 59/PUU-XVI/2019.
Denny said that a model like the supervisory council is not found in the law enforcement practices in other countries. The revision of the KPK Law through various changes, according to Denny, must be interpreted as the beginning of control, especially by the executive over the KPK. "We are of the view that the revision of the KPK Law, not excluding the supervisory council, must be viewed carefully and deeply than just a text. Is it a legal policy, open legal policy, or not," Denny said.
Great Challenge
Former KPK Chairman M. Busyro Muqoddas said that corruption eradication faces very serious challenges, especially after the enactment of the KPK Law. "The legal politics of forming the KPK begins with the Reform, not only is it expected to eradicate corruption, but also to become an answer that Indonesia was facing extraordinary crimes. Therefore, the eradication efforts cannot be done in the usual way, but in extraordinary ways," Busyro explained.
Busyro revealed that corruption eradication needs to be done intensively, professionally, and continuously because it is detrimental to the country\'s finances, impedes national development, and impoverishes the people in a structured, massive, and systematic way. "In the contemporary state administration, the KPK as an independent institution is on the same level as the executive, legislative, and judiciary," Busyro said as an expert for the Petitioners of case No. 70/PUU-XVII/2019.
Law Faculty lecturer of at the Islamic University of Indonesia Ridwan explained from the perspective of administrative law, "Permission in the context of administrative law is a government organ based on the laws and regulations required for one activity requiring special supervision."
Ridwan said that the KPK was formed through the law, and was given authorities. To exercise its authorities, functionaries to exercise those authorities are required, including the KPK supervisory council. "The supervisory council and the KPK leadership are in an institution and both act for and on behalf of the KPK institution, for which there is a distinction regarding its function. That distinction is explicitly stated in the law," Ridwan said as expert for the Petitioners of case No. 70/PUU-XVII/2019.
The case No. 59/PUU-XVII/2019 was petitioned by 25 advocates, who challenge the KPK Law formally and materially. According to the Petitioners, the amendment to the KPK Law was not in accordance with the eradication of corruption in the state administration. Its ratification was not in accordance with existing legislation because the plenary session to ratify the law was attended by only 80 House members or less than half of the total number of House members. The amendment was deemed secretive and hasty, meaning that the pass of the bill did not fulfill the principle of transparency.
The Petitioner of case No. 62/PUU-XVII/2019 Gregorius Yonathan Deowikaputra challenges Article 11 paragraph (1) letter a of the KPK Law. He deemed the formation of the Second Amendment to the KPK Law closed and secretive, without involving the public. The minutes of the meeting on the DPR\'s official website related to discussions on the revision of the KPK Law were difficult to access. Given these facts, he added, it is clear that the provision is not based on the mandatory principles of usefulness, effectiveness, and openness, which the House must have followed in forming legislation.
Petitioners of case No. 70/PUU-XVII/2019 Fathul Wahid and others challenge Article 1 number 3 and Article 3of the KPK Law. The Petitioners argue that there is a flaw in the formulation process of the KPK Law in relation to Law No. 12 of 2011 before the amendment, because Law No. 15 of 2019 on the Amendment to Law No. 12 of 2011 on the Formation of Legislation was only ratified on October 2, 2019 and enacted on October 4, 2019 in State Gazette of 2019 Number 183. Meanwhile, the formulation process of the KPK Law ended on September 17, 2019.
Petitioners of case No. 71/PUU-XVII/2019 Zico Leonard Djagardo Simanjuntak and others challenge Article 6 letter e and Article 12 paragraph (1) of the KPK Law. According to the Petitioners, the KPK supervisory council is a paradox that weakens corruption eradication. The supervisory council regulated by the a quo law actually deviates from supervisory system and results in the weakening of corruption eradication by the KPK.
Petitioners of case No. 73/PUU-XVII/2019 Ricki Martin Sidauruk and Gregorianus Agung challenge Article 43 paragraph (1) of the KPK Law. The requirements for KPK investigators as regulated in Article 43A paragraph (1) letter a-d of the KPK Law are proportional for the general public without limiting to certain professions, which according to the Petitioners are highly discriminatory. According to the Petitioners, Article 43A paragraph (1) letter a through d of the KPK Law is irrelevant to be applied as long as it is interpreted "that only professions/government agencies" as mentioned in the a quo article in requiring someone to become a KPK investigator. This causes only people from the professions/government agencies mentioned by the KPK leadership can be appointed and dismissed as KPK investigators.
Jovi Andrea Bachtiar and other for case No. 77/PUU-XVII/2019 challenge Article 12B paragraphs (2), (3), and (4); Article 12C paragraph (1); Article 21 paragraph (1); Article 37A paragraph (3) of Law No. 19 of 2019 on the Second Amendment to the KPK Law. They challenge the authority of the KPK supervisory council, whose position and recruitment they deem potentially violating the principle of rule of law (rechtstaats) and judicial independence.
The Petitioners of case No. 79/PUU-XVII/2019 KPK leaders Agus Rahardjo, Laode Muhamad Syarif, and others argued that lawmakers did not show good faith in drafting the second amendment to the KPK Law, resulting in potential constitutional losses to citizens. They believe the discussion of the KPK bill (RUU) took place quickly and in a hurry for approval. Therefore, they are of the view that it is a factor in the large number of formal defects and ambiguities in the KPK Law. (Nano Tresna Arfana/Raisa/LA)
Translated by: Yuniar Widiastuti
Translation uploaded on 2/13/2020