A judicial review hearing of Law No. 9 of 2019 to hear an expert through video conference, Wednesday (24/6) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—The drafting process of Law No. 19 of 2019 on the Corruption Eradication Commission (KPK Law) did not meet requirements, making it invalid, said constitutional law expert Aan Eko Widiarto in the judicial review hearing of cases No. 59, 62, 70, 71, 73, 77, and 79/PUU-XVII/2019 held by the Constitutional Court (MK) on Wednesday afternoon (24/6/2020). The hearing, led by Chief Constitutional Justice Anwar Usman along with two other justices, was scheduled to hear two experts for the Petitioners through video conference.
As an expert for the Petitioners of case No. 79/PUU-XVII/2019, Aan said that the formation of a law must follow several stages: planning, drafting, discussion, ratification, and enactment. "If all [requirements] of the stages are met, it means that [the formation] fulfils the constitutional formation elements," said Aan, who is also a law lecturer at Brawijaya University.
He added that in the planning stage, a law must meet requirements, such as following the National Legislative Program (Prolegnas), discussed by the president and the parliament, approved by the House’s commissions that deal with legislation. He also said that the amendment to the KPK Law was an open cumulative bill in 2015 and not in 2017-2018. Then, in 2019, it was re-included. An open cumulative bill, Aan added, is a bill that is allowed to enter into the Prolegnas to follow up on the signing of a treaty, a Constitutional Court decision, etc.
Aan further explained that the Constitutional Court Decision No. 36/PUU-XV/2017 established the KPK as an executive institution. So, according to him, the contents of the KPK Bill in the Prolegnas should focus on strengthening the KPK as an executive institution. "If it does not [strengthen the KPK], it should not be an open cumulative [bill] and [it is] an [illegitimate] open cumulative [bill]," he explained.
Aan also explained that the KPK Law shows another peculiarity: the promulgation is mentioned first, then the ratification in the closing section. "Lawmaking […] covers several stages, starting from planning, drafting, discussion, ratification, and enactment. However, this text was promulgated first, and only then it was ratified," he said.
Aan also emphasized academic texts as a condition for the formation of a law. The KPK Bill did not meet lawmaking requirements because it was not accompanied by an academic paper. "This resulted in [the bill not meeting its target] because it did not argue for issues in the KPK Bill that was being drafted," he said.
Legally Defective
Former Chief Justice of the Supreme Court Bagir Manan, as the Petitioners’ expert, mentioned formal aspects of the KPK Law. "The new KPK Law is a change or can substantially be called a replacement for the old KPK Law. The authority to form laws includes forming new laws, making changes to old laws, replacing or revoking old laws," he explained.
Therefore, he added, the formation of the new KPK Law was an amendment of a law, replacing the old KPK Law with the new one. The new KPK Law was discussed together, both in open and closed sessions by the House and the President, according to the procedures set out in the law as well as other provisions stipulated in the law.
"The new KPK Law is the result of a joint agreement between the parliament and the President. However, according to the Petitioners, the ratification of the approval of the House and the President did not meet the quorum because it was not attended by at least 50 percent plus one House member. If this is proven to be true, the ratification of the KPK Bill would not only be legally defective, but also invalid, thus null and void and does not have binding legal force," he said.
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.
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.
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.
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.
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.
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/RA/LA)
Translated by: Yuniar Widiastuti
Translation uploaded on 6/24/2020
Wednesday, June 24, 2020 | 17:49 WIB 411