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The Applicant’s Attorney delivered petition arguments at judicial review session on Act of the Corruption Eradication Commission (Komisi Pemberantasan Korupsi –KPK) on Tuesday (7/4) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

Former Vice Chairman of the Corruption Eradication Commission (Komisi Pemberantasan Korupsi –KPK) Bambang Widjojanto filed petition against the temporary dismissal provision on Act of Corruption Eradication Commission (Undang-Undang KPK –UU KPK). First session of case registered on No. 40/PUU-XIII/2015 was held on Tuesday (7/4) at Plenary Room, the Constitutional Court Building. Abdul Fickar Hadjar as Applicant’s Attorney presented to deliver petition points at the session led by I Dewa Gede Palguna.   .

Fickar said that the Applicant filed petition towards the norms stipulated on Article 32 (1) letter c and Article 32 (2) UU KPK. Article 32 (1) letter c UU KPK states KPK Commissioners dismiss or can be dismissed when being defendant as a result of criminal cases.

According to the Applicant, the provision harmed him which dismissed from KPK commissioners position after named as suspect. Therefore, the Applicant believed that his suspect-naming conducted by plotted cases that had been occurred five years ago when he handled regional election dispute at the Constitutional Court.

Moreover, suspect-naming charged to the Applicant should be noticed on the presumption of innocence (asas praduga tak bersalah), in accordance with the mandate on Article 28D (1) the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945). According to the Applicant, the presumption of innocence is a fundamental legal principle. Unfortunately, the principle was indeed violated by Article 32 (1) letter c UU KPK. Because, article a quo didn’t mention in detail what kind of criminal cases able to make KPK commissioners dismissed. Moreover, article a quo was also didn’t mention the time of criminal cases occurred that could dismiss the commissioners.   

No clear terms on the criminal violation types and time occurrence made the Applicant anxious that KPK commissioners could be paralyzed by reason of any criminal violations which occurred at any time, despite the alleged cases was actually normal. In other words, the alleged cases could be not related with position/power abuse as KPK commissioners. The Applicant was also anxious that not only the commissioners who didn’t granted legal security, but also the KPK institution threatened its independence in carrying out its duties and authorities in eradicating corruption.    

“In order that its implementation is not vulnerable to the violations and discriminations, the Applicant considers the interpretation of phrase ‘crime suspects’ (‘tersangka tindak pidana kejahatan’) on Article 32 (2) and Article 32 (1) letter c UU KPK needs to be limited with clearer norms, so it doesn’t contrary to UUD 1945,” said Fickar.  

Temporary-Dismissal

Moreover, the Applicant was also questioned on norms stipulated on Article 32 (2) UU KPK that states KPK Commissioners shall be dismissed temporary from their position after named as suspect. The word ‘temporary’ was questioned by the Applicant. The Applicant said that temporary dismissal was the same with permanent dismissal until the end of term. His argument supported with facts on the duration of criminal case trial that took very long time to achieve legal binding. For example the Applicants’ experience with the rest of his working term only 10 months from the temporary dismissal, he definitely won’t be return on his position.

The norm on temporary dismissal was also assessed discriminative by the Applicant. Because the provision applied different treatments towards KPK Commissioners with other state officials. The temporary dismissal of KPK Commissioners could apply only by suspect-naming, whereas for other state officials it could apply after named as defendant.

“(The provision) is reflected from several legislations which regulated on temporary dismissal for state officials who snagged on criminal cases. For example on Act of the Constitutional Court, Constitutional Judge dishonorably dismissed if sentenced imprisonment based on court verdicts which granted permanent legal force due to criminal offenses punished by 5 year imprisonment. So does for chairman, vice chairman, and officers of the Supreme Audit Agency (Badan Pemeriksa Keuangan –BPK),” said Fickar.

With these reasons, the Applicant on his petitum asked to the Court to issue injunctive relief that ordered the Indonesia National Police for not devolving alleged cases that allegedly subjected to the Applicant. Moreover, the Applicant requested to the Court to declare Article 32 (2) UU KPK contrary to the Constitution under certain conditions (conditional unconstitutional). The condition was, Article a quo should be interpreted as criminal offenses limited on corruption, terrorism, human trafficking, and offenses related with the commissioners’ authority which done during his working period as the commissioners.  

Judges Advice

Responding to the Applicant’s petition, Judge Panel gave advices that could be used for revision. I Dewa Gede Palguna as Head of Judge Panel said that there was a mismatch in the use of touchstone. On the proposition that stated Article 32(1) letter c UU KPK considered threaten the KPK independency as institution, the Applicant used Article 27 (1) and Article 28D UUD 1945 as touchstones.

According to Palguna, the use of touchstone wasn’t appropriate with the proposition filed. “You justified on what matter? Article 27 (1) UUD 1945 is about equality before the law and legal certainty. Whereas, the matter you are arguing here is on independency matter, right? You intend to justify independency matter, but articles on UUD 1945 that you link to support this explanation are Article 27 (1) and Article 28D (1). Try to rethink, are the linked articles is correct?” advised Palguna who accompanied with Patrialis Akbar and Wahiduddin Adams as Judge Panel members. (Yusti Nurul Agustin/Prasetyo Adi N.) 

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