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Applicant’s Attorney Abdul Fickar Fadjar delivered the petition points at judicial review session on UU KPK, on Monday (20/4) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) was again held a further session of judicial review on Act Number 30 Year 2002 of the Corruption Eradication Commission (Undang-Undang Komisi Pemberantasan Korupsi –UU KPK) which filed by a non-active commissioner of the Corruption Eradication Commission (Komisi Pemberantasan Korupsi –KPK) Bambang Wijoyanto. The session held on Monday (20/4) with agenda examining petition revision.

At the session led by Constitutional Judge Patrialis Akbar, the Applicant’s attorney Abdul Fickar Fadjar said had revised the petition which case listed on number 40/PUU-XIII/2015. The revision among others was on the legal standing. “Concerned on legal standing we had revised, among others, it emphasize that Applicant is a citizen who appointed by the Presidential Decree (Keputusan Presiden –Keppres) as deputy commissioner and member of the KPK, which later temporary dismissed after declared as suspect by the National Police (Kepolisian Republik Indonesia –Polri),” explained Abdul Fickar.

According to the Applicant’s attorney, the Applicant accused of the crime which occurred five years ago when he handled election result dispute (Perkara Hasil Pemilihan Umum –PHPU) number 45/PHPU.D-VIII/2010; regional election (pemilihan kepala daerah –pemilukada) result dispute in West Kotawaringin Regency (Kabupaten Kotawaringin Barat). According to Abdul, his client had neither to do with authority abuse and or criminal offense during carried out his duty as the KPK Commissioner, nor serious crimes such as corruption, terrorism, human trafficking, drugs abuse, and illegal logging.

Abdul argued the suspect-naming and temporary dismissal caused Applicant’s constitutional loss because he couldn’t do his job and authority as KPK Commissioner until his term ended on December 2015. In addition, Abdul assessed the provision on Article 32 (2) had caused legal uncertainty due to the unclear time limit of the dismissal and the recovery mechanism of the Applicant’s legal status as KPK Commissioner. The Applicant was also considered that the dismissal caused public distrust towards state institutions and law enforcers, particularly to KPK Commissioners.   

The Applicant was basically agreed that the norm regulated temporary dismissal applied to KPK Commissioners, so the high moral standard of KPK Commissioners could be an example for other state officials in eradicating corruption. However, the Applicant assessed he necessarily requested to the MK to give interpretation towards the phrase ‘crime suspect’ on Article 32 (4) Act Number 30 Year 2002 of the Corruption Eradication Commission so the implementation of it wasn’t discriminative and vulnerable to the violation. He assessed the provision of temporary dismissal was potentially violated his constitutional rights of equality in the law and governance as well as legal certainty which guaranteed by the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945). “The provision on Article 32 (2) Act Number 30 Year 2002 of the Corruption Eradication Commission provides different treatment between KPK Commissioners with other state officials,” explained Abdul.   

According to him, the temporary dismissal regulated on the article a quo was in fact permanent dismissal because no setting mechanism from temporary dismissal to permanent one. The Applicant was also gave comparison with other institutions, particularly the institution which regulated temporary dismissal such as the MK, the Supreme Audit Agency (Badan Pemeriksa Keuangan), the Judicial Commission (Komisi Yudisial –KY), the Attorney General\'s Office (Kejaksaan), the Supreme Court (Mahkamah Agung –MA), and the state ministries (Kementrian Negara). Based on the comparison, the Applicant concluded the regulation of temporary dismissal on the several Acts addressed to state officials who named as defendant, rather than suspect.

Moreover according to the Applicant, the provision on UU KPK didn’t regulate the procedure mechanism and the timing of criminal offense. In his petition, the Applicant said the provision was acceptable if the temporary dismissal based on serious criminal offenses such as corruption, terrorism, human trafficking, drugs abuse, illegal logging and offenses charged with death penalty as well as the offenses committed during their work term.   

Bambang Wijoyanto through his attorney assessed UU KPK was potentially caused KPK Commissioners dismissed temporary without legal certainty and protection, because it wasn’t based on particular offense qualification. Therefore, it caused constitutional loss to the Applicant. “Such matter is contrary to the principle of equality before the law, which protected by Article 27 (1) and Article 28D (1) the 1945 Constitution concerned on people’s right to equality before the law and governance, as well as equal treatment before the law and legal certainty, said Abdul Fickar.

Meanwhile other Applicant’s attorney Budi Setyanto said that the provision on Article 32 (2) UU KPK which regulated the temporary dismissal of KPK commissioners when named as suspect should be restricted, so it won’t be used to paralyze the KPK duties. The Applicant requested to the Court to interpret the offenses referred on UU KPK were serious criminal offenses such as corruption, terrorism, human trafficking, drugs abuse, illegal loging and offenses charged with death penalty and committed during their work term. Another Applicant’s request was KPK commissioners could be imposed with police action on the order of KPK Chairman after granted written approval from the President. “Suspect-naming of KPK Commissioners could be conducted after proposed by KPK Chairman and granted approval from the President,” said Budi. (Ilham/Prasetyo Adi N.)

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