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Law professors of Universitas Padjajaran Bandung I Gde Pantja Astawa and Romli Atmasasmita after sworn in at judicial review session on Act of the Corruption Eradication Commission (Undang-Undang Komisi Pemberantasan Korupsi –UU KPK), on Tuesday (3/11) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

Having failed to summon experts on previous session, Applicant OC Kaligis summons two law professors of Universitas Padjajaran Bandung, I Gde Pantja Astawa and Romli Atmasasmita, at the session held on Tuesday (3/11). Both experts deliver that inquirers and investigators as referred in Article 45 (1) Act of the Corruption Eradication Commission (Undang-Undang Komisi Pemberantasan Korupsi –UU KPK) are inquirers and investigators that derived from police. 

I Gde Pantja Astawa delivers testimony regarding Article 45 (1) Act Number 30 Year 2002 of the Corruption Eradication Commission. As known, Article 45 (1) Act a quo stated that investigators are KPK investigators which appointed and dismissed by the KPK.

OC Kaligis’ petitions are registered in Case Number 109/PUU-XIII/2015 and Case Number 110/PUU-XIII/2015.

Astawa delivers that the KPK interprets the Article with understanding that the KPK attributively has authority to appoint and dismiss independent investigators. Similar interpretation also stipulated in pretrial verdict of South Jakarta district court (Pengadilan Negeri Jakarta Selatan) towards Suroso Atmomartoyo’s pretrial request. South Jakarta district court stated that independent investigators, in this case investigators that are not derived from police, are legal. Therefore, entire legal process conducted by independent investigators is legal.

In contrast to the KPK and South Jakarta district court, Astawa has different opinion on Article 45 (1) Act of the Corruption Eradication Commission. From the perspective of systematic interpretation and historical interpretation, Astawa assesses that investigators referred in the Article are investigator that derived from police. According to him, the appointment and dismissal of investigators is merely administrative issue that related to investigators’ finance rights.

Systematic Interpretation

Astawa explains that systematically Article 45 (1) Act of the Corruption Eradication Commission is not a stand-alone article. The Article has correlation with other Articles in Act of the Corruption Eradication Commission and the Criminal Procedure Code (Kitab Undang-Undang Hukum Acara Pidana –UU KUHAP). “Article 45 (1) Act of the Corruption Eradication Commission is not a stand-alone Article, however it has correlation with Article 38, Article 39 (3) and Article 43 Act a quo. Whereas in relation with other Act as a system, the Article has correlation with Article 1 number 1, number 2, number 4, number 5, and number 6, as well as Article 4, Article 5, Article 6, and Article 7 the Criminal Procedure Code,” said Astawa in front of Justice Panel led by Chief Justice Arief Hidayat.  

Regarding the Articles correlated with Article 45 (1) Act a quo, Astawa concludes that inquirers and investigators referred in Article 45 (1) Act a quo are inquirers and investigators derived from police. One of the Articles considered correlated with the Article is Article 1 number 1 the KUHAP which stated that investigators are police officers or particular civil servants. Article 4 the KUHAP also stated that inquirers are police officers.

“Based on systematic interpretation on several provisions in Act of the Corruption Eradication Commission and the relation with several provisions in the KUHAP, it is clear and certain that inquirers and investigators referred and those who served as KPK investigators are police officers, instead of civil servants,” said Astawa.

Historical Interpretation

Based on Act history, Astawa concludes that inquirers and investigators in Article 45 (1) Act of the Corruption Eradication Commission are derived from police. From the academic paper of Act a quo at that time, it can be seen that the KPK’s authority to appoint independent inquirers and investigators is debatable.

Astawa further says that the idea of granting attributive authority to the KPK regarding independent inquirers and investigators was appeared at that time. However, the idea was opposed by reason there was only the Indonesian National Police (Kepolisian Republik Indonesia –Polri) who had experience as inquirer and investigator. On that basis, the idea of the KPK’s authority to appoint independent inquirers and investigators cannot be realized.

Therefore Astawa concludes that temporary suspension applied for police inquirers and investigators aims to have single loyalty to the KPK and to ease employment status administrative. “When polices or prosecutors appointed as KPK employees, they dismissed temporarily from previous institutions. Thus, their employment documents and finance rights also dismissed from previous institutions then transferred to the KPK,” said Astawa.

Astawa’s statement is confirmed by Romli Atmasasmita who becomes one of the initiators of the Act. According to Atmasasmita, Act a quo drafting team undertook comparative studies to Hongkong, Malaysia, Singapore, Australia, and Philippines. From the comparative studies, the team found out that major cases investigation cannot be completed because the prosecution submitted to the Attorney General Office (Kejaksaan Agung –Kejagung). Thus, Atmasasmita and his team took initiative to grant the authority of inquirers’ and investigators’ appointment and dismissal to the KPK.  

However, Atmasasmita’s idea was rejected by reason that KPK inquirers and investigators had no experience. At that time, the police argued that they who experienced in investigation, met difficulties in corruption investigation. The police said that it would be ineffective if inexperienced investigators handled corruption cases.

Moreover, loyalty issue also appears on KPK investigators who derived from police. Thus, the legislators make regulation that dismissed temporarily for police investigators. “In order to maintain KPK’s independency, we make temporary dismissal regulation for police investigators and prosecutors. It aims to shift their loyalty to the KPK Commissioners,” said Atmasasmita.

Previously, OC Kaligis who entangled in a corruption case is named suspect by the KPK. He considers investigation and inquiry undertaken to him are illegal. He then files judicial review towards Article 45 (1) Act of the Corruption Eradication Commission which stated that investigators are KPK investigators who appointed and dismissed by the KPK. According to him, the Article is obscure because it doesn’t clearly regulate on the source of KPK investigators. (Yusti Nurul Agustin/IR/Prasetyo Adi N)

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