Wednesday, May 5, 2021 | 12:00 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) stressed that under Article 21 paragraph (1) of Law No. 19 of 2019 on the Corruption Eradication Commission (KPK), the supervisory board and KPK leadership aren’t in one hierarchy. Within the grand design of corruption eradication, they are not superior-subordinate but work together to form synergy. This was one of the Court’s opinions in Decision No. 71/PUU-XVII/2019 read out on Tuesday, May 4, 2021. “Not to mention, some of the KPK’s supervisory board’s authorities have been declared unconstitutional in the Constitutional Court Decision No. 70/PUU-XVII/2019 on May 4, 2021,” Deputy Chief Justice Aswanto said, reading out the Court’s legal considerations.

In the petition, the Petitioners asserted that the KPK’s supervisory board is superior to the KPK leadership. They believed the board, appointed and inaugurated by the president, would make the KPK’s duties and authorities centered on the president.

The Court declared the petition inadmissible. The petition was filed by university students and focused on the unconstitutionality of Article 12B, Article 12C, Article 12D, Article 37B paragraph (1) letter b, Article 40, and Article 47 of the KPK Law. “[The Court] rejects the Petitioners’ petition for the remainder,” said Chief Justice Anwar Usman.

Also read: KPK Law Challenged Again in Constitutional Court

The composition and appointment procedure of the supervisory board doesn’t make the KPK responsible to the president. Under Article 20 of Law No. 3 of 2002, “The KPK shall be responsible to the public to perform its duties. The KPK shall also be obliged to convey reports transparently and regularly to the President of the Republic of Indonesia, the House of Representatives, and the Audit Board.”

“Not to mention, the Constitutional Court Decision No. 36/PUUXV/2017 dated February 8, 2018 stresses that in exercising its judicial duties, the KPK is independent and cannot be intervened by any party. Similarly, Law No. 19 of 2019 only justifies the first appointment of the KPK’s supervisory board by the president. This means that the next appointment will follow the process of filling KPK leadership vacancies. Therefore, the Petitioners’ concern of significant influence by the president on the KPK’s independence is excessive,” Justice Aswanto read out.

Also read: Petitioners of KPK Law Convey Revision of Petition

Predicate Crime

The Court also considered the Petitioners’ assertion that the KPK wasn’t authorized to handle money laundering (TPPU) cases as the authority was not made explicit in the KPK Law. Constitutional Justice Suhartoyo said it is regulated in statutory law. Article 1 point 1 of Law No. 8 of 2010 on the Prevention and Eradication of Money Laundering states that money laundering is all acts that meet the elements of criminal acts under the law. One of these elements is assets made through corruption.

“Therefore, although the criminal acts of corruption and money laundering are criminal acts regulated in different or separate laws, both are interrelated because one of the predicate crimes of money laundering is the criminal acts of corruption,” said Justice Suhartoyo reading out the Court’s legal considerations.

Also read: House: KPK's Wiretap Authority Must Be Exercised With Caution

The Court believes that although money laundering-related authority is not explicitly stated in Article 6 letter e of Law No. 19 of 2019, the KPK automatically has the authority to handle money laundering cases as long as its predicate crime is corruption.

Petition No. 71/PUU-XVII/2019 was filed by university student and expert staff of DKI Jakarta DPRD (Regional Legislative Council) Zico Leonard Djagardo Simanjuntak and others. They challenged Article 6 letter and Article 12 paragraph (1) of the KPK Law. They believed the KPK’s supervisory board to be a paradox that weakens the efforts to eradicate corruption. They believe the board’s existence, which is regulated by the a quo law, deviated from the supervisory system and, instead, led to the weaking of the KPK’s efforts to eradicate corruption.

Rejected and Dismissed

At the same hearing, the Court also ruled the case No. 77/PUU-XVII/2019 by Jovi Andrea Bachtiar and others. “[The Court] adjudicated, declares the Petitioners’ petition regarding the unconstitutionality of Article 12B paragraphs (1), (2), (3), and (4); Article 37B paragraph (1) letter h; Article 47 paragraphs (1) and (2); and Article 69A paragraphs (1) and (4) of the KPK Law inadmissible. [The Court] rejects the Petitioners’ petition for the remainder,” said plenary chair Chief Justice Anwar Usman.

The Petitioners challenged the materials of Article 12B paragraphs (1), (2), (3), and (4); Article 12C paragraph (1); Article 21 paragraph (1); Article 37B paragraph (1) letter h; and Article 47 paragraphs (1) and (2) of Law No. 19 of 2019 on the Second Amendment to the KPK Law. They also challenged Article 51A paragraph (5) letters a and b and Article 57 paragraph (3) of the Constitutional Court Law; Article 10 paragraph (1) letter d and Article 23 paragraph (1) letter b of Law No. 12 of 2011; and Article 69A paragraphs (1) and (4) of the KPK Law.

They asserted that the provisions on the KPK’s supervisory board’s position and recruitment in the second amendment to the KPK Law potentially violated the principle of rule of law (rechtstaats) and judicial independence.

After the Court had examined the petition, the testimonies of experts, the Relevant Party, and others, it stated that the petition had lost its object.

“Meanwhile, [the assertion] regarding the unconstitutionality of Article 51A paragraph (5) letters a and b and Article 57 paragraph (3) of the Constitutional Court Law as well as Article 10 paragraph (1) letter d and Article 23 paragraph (1) letter b of Law No. 12 of 2011 is legally groundless. [The assertion] regarding Article 69A paragraphs (1) and (4) of the KPK Law is obscure,” said Justice Suhartoyo reading out the Court’s legal considerations.

Law Enforcement Aspect

At the hearing, the Court also ruled the case No. 73/PUU-XVII/2019, filed by Ricki Martin Sidauruk and Gregorius Agung—two university students. They asserted that KPK investigators should not have to be recruited from the police, prosecutors, KPK, and/or other government agencies. According to Ricki, the limited recruitment of KPK investigators could potentially reduce its independence. This provision should have given every citizen the opportunity to take part in efforts to improve the nation, including to eradicate corruption.

In its legal considerations read out by Constitutional Justice Enny Nurbaningsih, the Court stated that under Article 43 paragraph (1) of the KPK Law, KPK investigators must be recruited from the police, prosecutors, KPK, and/or other government agencies. The KPK is authorized to recruit its employees as investigators alongside those from other agencies, provided that they meet the requirements specified in said article.

“In relation to the Petitioners’ wish that Article 43 paragraph (1) of Law No. 19 of 2019 accommodate the public without restriction, [the provision] doesn’t restrict the public from becoming KPK investigators. That is because the Petitioners’ wish to become KPK investigators can be fulfilled if they become KPK employees and meet the requirements as stipulated in statutory laws. Therefore, the Petitioners’ question of the [constitutionality] of Article 43 paragraph (1) of Law No. 19 of 2019 against Article 28C paragraph (2) of the 1945 Constitution is legally groundless,” Justice Enny said.

Mutatis Mutandis

Next, the Court declared the petition No. 59/PUU-XVII/2019 inadmissible. The petition was filed by 25 advocates. They asserted that the supervisory board potentially reduced the KPK’s independence and weakens it. They requested that Article 21 paragraph (1) letter a of Law No. 19 of 2019, which regulates the supervisory board, be declared unconstitutional.

“In relation to the judicial review of the provision, through Decision No. 71/PUU-XVII/2019 on May 4, 2021, pronounced by 16:47 WIB, the Court declared the Petitioners’ petition regarding the unconstitutionality of Article 21 paragraph (1) letter a of Law No. 19 of 2019 legally groundless. The legal considerations in [said decision] mutatis mutandis applies to the a quo Decision No. 59/PUU-XVII/2019. Therefore, based on the aforementioned legal considerations, the Court believes the Petitioners’ petition in the a quo case regarding the unconstitutionality of Article 21 paragraph (1) letter a of Law No. 19 of 2019 must be declared legally groundless,” said Constitutional Justice Daniel Yusmic P. Foekh.

Finally, the Court rejected the entire petition No. 62/PUU-XVII/2019 by Gregorius Yonathan Deowikaputra. The Court believes the Petitioner’s assertion on the unconstitutionality of Article 29 letter e of the KPK Law was legally groundless.

Writer        : Nano Tresna Arfana
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayudhita
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 5/6/2021 14:02 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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