Lack of Checks and Balances in State Police Questioned
if($news->) Image

Petitioner Sandi Ebenezer Situngkir attending the preliminary hearing of the judicial review of the Police Law virtually, Monday (11/7/2022). Photo by MKRI/Teguh.

Monday, November 7, 2022 | 14:56 WIB

JAKARTA (MKRI) —Cases involving the state police of the Republic of Indonesia lately compelled advocate Sandi Ebenezer Situngkir to challenge Article 15 paragraph (2) letter k, Article 16 paragraph (1) letter l, Article 18 paragraph (1), Article 38 paragraph (2), and Article 39 paragraph (2) of Law No. 2 of 2002 on the State Police of the Republic of Indonesia. He wished for more checks and balances in the Police. The preliminary hearing for case No. 104/PUU-XX/2022 was held by the Constitutional Court (MK) on Monday, November 7, 2022.

In the petition, the Petitioner argued that Articles 15, 16, and 18 of the Police Law did not have clear statement of purpose and legal certainty, which is a prerequisite set by the Lawmaking Law. “There are provisions in Articles 15, 16, and 18 [of the Police Law] that say that members of the State Police of the Republic of Indonesia may carry out other actions based on their own interpretation,” he said.

The Petitioner believes the Police’s authority in the law is not limited and may be interpreted arbitrarily.

“The law grants the Police duties, functions, and authorities but without clear limits, when the law should be limiting and the objective and legal certainty must be clear,” he said before the panel chaired by Constitutional Justice Suhartoyo.

He also questioned the National Police Commission’s (Kompolnas) authority as it only provides recommendations and opinions to the president. Therefore, he argued, there is no checks and balances function in the Police Law.

“Although there is an internal supervisory function, in the Police Law, the Kompolnas does not have a function, whether it is a supervisory agency in the Police or not. The law only stipulates that it has an authority to provide recommendations and opinions to the president in relation to the police chief candidates and the Police budget. Therefore, the Petitioner requests that the Court make a new norm on the Police’s checks and balances, which is imperative for the Police’s performance,” he explained.

In the petition, the Petitioner explained that the Kompolnas is an external supervisory institution for the Police. No provisions in the Police Law regulates its authority to supervise the Police’s performance and violations within its members. Such a lack of supervision is in violation of the checks and balances principle in governance, especially since the Police has a broad scope of duty, function, and authority.

This lack of supervision of the Police is in violation of constitutional rights referred to in Article 28G paragraph (1) of the 1945 Constitution, the Petitioner argued. He wished that the Kompolnas would have the authority to examine and try abuses of authority by Police members.

He also alleged that he had suffered constitutional impairment due to the enactment of Article 39 and the elucidation to Article 39 paragraph (2) in conjunction with paragraph (3) of Law No. 2 of 2002, which bars him from becoming a commissioner in the Kompolnas. The Kompolnas membership comprises three ministerial-level government officials: Coordinating Minister for Political, Legal, and Security Affairs; Minister of Law and Human Rights; and Minister of Home Affairs. This, he argued, violates the checks-and-balances function, where both the Police Chief and the ministers are appointed by the president and thus cannot supervise the Police.

Therefore, in the petitum, the Petitioner requested that the Court declare Article 15 paragraph (2) letter of the Police Law to read, “Based on other laws and regulations, the State Police of the Republic of Indonesia shall also be authorized: k. to implement other authorities within the jurisdiction of the Police;” declare Article 16 paragraph (1) letter l to read, “to conduct other actions as referred to in Articles 13 and 14 in the criminal process, the State Police of the Republic of Indonesia is authorized to conduct other lawful, responsible actions.”

He also requested that the Court, “Declare the provision in Article 38 paragraph (2), and Article 39 paragraph (2) letters c, d, e, ad f of Law No. 2 of 2022 to read: (2) In performing its duties as referred to in paragraph (1), the National Police Commission shall be authorized to: c) Carry out monitoring and supervision of the conduct of members of the National Police; (d) Receive reports from the public regarding violations of the Code of Ethics by members of the National Police; (e) Verify, clarify, and investigate reports of alleged violations of the Code of Ethics by members of the National Police; (f) Decide whether or not reports of alleged violations of the National Police’s Code of Ethics are true.”

Justices’ Advice

In response, Constitutional Justice Enny Nurbaningsih advised the Petitioner to elaborate on his legal standing. “Please detail the rights that the Constitution grant you as a petitioner in relation to the norms petitioned. Is it true that those rights have been harmed due to the enactment of the norms? Please explain the specific, actual, or at least potential impairment,” she said.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh asked the Petitioner to submit the proof of police report. “Is there an evidence or proof of report? Please elaborate on it to support the legal standing,” he said.

Next, Justice Suhartoyo asked the Petitioner to elaborate on his constitutional impairment in detail. “What is your impairment as a citizen and an advocate? Make it clear. As a citizen, the requirement in Article 51 of the Constitutional Court has been met, but there is presumed constitutional loss. Explain it to build your legal standing,” he added.

Before concluding the session, Justice Suhartoyo announced that the Petitioner had 14 workdays to revise the petition and submit it by Monday, November 21, 2022 at 10:10 WIB.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/7/2022 15:10 WIB

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

Monday, November 07, 2022 | 14:56 WIB 180
  • Budi Wibowo Halim (Pemohon) menyampaikan pokok-pokok perbaikan atas permohonan Perkara Nomor 117/PUU-XXI/2023. Foto Humas/Ifa

    Image 1
  • Majelis Sidang Panel yang di ketuai oleh Hakim Konstitusi Enny Nurbaningsih. Foto Humas/Fauzan

    Image 2