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Refly Harun, the Expert presented by the Corruption Eradication Commission (KPK), delivering his expertise related to the judicial review hearing of MD3 Law, Wednesday (25/10) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

The basic philosophy of the inquiry right of the House of Representatives (DPR) is it being an instrument of checks and balances in a presidential democratic system. It means that the right of inquiry is only for the executive under the president. 

Such is the statement of Refly Harun as the Expert presented by the Corruption Eradication Commission (KPK) in the judicial review hearing of the inquiry right of the House of Representatives in Law No. 17 of 2014 on the People\\'s Consultative Assembly (MPR), House of Representatives (DPR), Regional Representatives Council (DPD), and Regional Legislative Council (DPRD) (MD3 Law) was held on Wednesday (25/10). The hearing led by the Chief Justice of the Constitutional Court, Arief Hidayat, was to hear expert information from the Government and Relevant Party of Case 36/PUU-XV/2017, 37/PUU-XV/2017, 40/PUU-XV/2017, and 47/PUU-XV/2017. 

In his statement, Refly claimed the Elucidation to Article 79 paragraph (3) of the MD3 Law, especially the phrase "the implementation of a law and/or government policy" is defined as a self-imposed policy by the president, vice president, state ministers, military (TNI) commander, or leaders of non-ministerial government institutions. According to him, it is already explicitly illustrated that the right of inquiry is only limited to the executive institutions under the president. 

"And why is that? Because it was intended for checks and balances between the House of Representatives and the president. [That is] because the end of the right of inquiry is the right to impeachment. So, the right to impeach. If the inquiry right is then followed up, it will then becomes the right to express an opinion. At the end of the right to express an opinion is impeachment," he explained in front of the panel of justices by Chief Justice of the Constitutional Court Arief Hidayat. 

Leading to Impeachment 

Refly also explained that from the historical side, the right to inquiry started from the right to investigate and examine abuse of authority, and punish misappropriations in government administration, which is then called the right to impeachment. Based on historical aspect, he added, it can be concluded that the right to inquiry in a parliamentary system is used to impeach state officials for committing an offense. 

Whereas in the context of the Indonesian presidential system, Refly calls the existence of the right of inquiry to the Government within the framework of the check and balances system which can also lead to special impeachment of the head of government (president). He considered inappropriate if the right questionnaire conducted on independent institutions such as KPK. Moreover, the KPK is not the executive power of government. 

"Therefore, the implementation of the right of DPR\\'s inquiry to KPK is an action that violates the limitation of power constitutional boundary as regulated in the provision of Article 79 paragraph (3) of Law No. 17 of 2014 and its elucidation. That is because institutionally, KPK is not an executive power executive, but an independent state institution, as mentioned in Article 3 of Law No. 30 of 2002 on the Corruption Eradication Commission," explained the constitutional law expert. 

Meanwhile, Former Constitutional Justice Maruarar Siahaan as the Government Expert stated the House’s inquiry right also includes the KPK, even though the anti-graft institution is an independent institution. That is because textually, KPK is an institution that implements the law. 

"It cannot be used as the basis to claim that the House’s right to inquiry does not cover the KPK as an independent institution. Because textually, it is clear that the Corruption Eradication Commission (KPK) is an organ that implements the law. Arrangements that are deemed cumulative in words and/or government policy cannot be interpreted that the right of inquiry is only directed to the government with policies pertaining to important and strategic matters, which have a broad impact on the lives of the society, nation, and state allegedly contrary to the legislation,” he said. 

Previously, a number of KPK employees conducted a review of the House’s inquiry right, which requested that all of Article 79 paragraph (3) of the MD3 Law be constitutionally conditional (Case No. 40/PUU-XV/2017). A similar thing was also expressed by former KPK Vice Chairman Busyro Muqoddas, the Indonesian Legal Aid Foundation (YLBHI), the Indonesia Corruption Watch (ICW), and the All-Indonesia United Workers Confederation (KPBI) under the Advocacy Team Save KPK as Petitioners of Case No. 47/PUU-XV/2017. Several individual Petitioners also filed similar petitions registered as No. 36/PUU-XV/2017 and 37/PUU-XV/2017.

The provision of Article 79 paragraph (3) of MD3 Law was considered containing obscure formulations or multiple interpretations that do not meet the principle of clarity and legal certainty as referred to in Article 28D (1) of the 1945 Constitution. Consequently, several different interpretations arose and resulted in the House’s error in using the inquiry right against KPK. The House’s interpreted that the article could be used to investigate the execution of duties and functions by law enforcement agencies. The petitioners considered the action of the House of Representatives as a political movement that is aimed at undermining corruption eradication efforts. The action was carried out simultaneously with the investigations and prosecutions by KPK against several cases allegedly involving members of the House, including the e-ID graft case currently being examined by the anti-graft institution. (Lulu Anjarsari/Yuniar Widiastuti)

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