Govt: 1945 Constitution Does Not Prohibit Prosecution Office’s Dual Authority

The material judicial review hearing of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption to hear the House’s testimony, Wednesday (6/7/2023). Photo by MKRI/Ifa.

JAKARTA (MKRI) — The Prosecution’s prosecution and investigation authority is contained in Government Regulation No. 92 of 2015 on the Second Amendment to Government Regulation No. 27 of 1983 on the Implementation of the Criminal Procedure Code. This regulation is a derivative for investigations carried out with special provisions or characteristics, including the eradication of criminal acts of corruption.

The statement was made by Feri Wibisono of the Attorney General’s Office who represented the President/Government at the material judicial review hearing of three laws: Article 30 paragraph (1) letter d of Law No. 16 of 2004 on the Prosecution Office; Article 39 of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption; as well as Article 44 paragraphs (4) and (5) on the phrase “or the Prosecution Office,” Article 50 paragraphs (1), (2), and (3) on the phrase “or the Prosecution Office,” and Article 50 paragraph (4) on the phrase “and/or the Prosecution Office” of Law No. 30 of 2002 on the Corruption Eradication Commission (KPK) for case No. 28/PUU-XXI/2023 on Wednesday, June 7, 2023.

Feri explained that the Prosecution Office is also granted investigation authority by Law No. 11 of 2011 on the Amendment to Law No. 16 of 2004 on the Prosecution Office. These provisions, he added, is embedded in the Prosecution’s Office’s authority and is legally binding.

The Prosecutor’s Office investigation authority is also regulated, among others, in Law No. 8 of 2010 on the Prevention and Eradication of the Crime of Money Laundering (TPPU Law). Law No. 26 of 2000 on the Human Rights Court, especially Article 11 paragraph (1), also regulates a similar authority: “The Attorney General as an investigator shall be authorized to make an arrest, for the purpose of investigation, any person who, based on sufficient preliminary evidence, is strongly suspected of perpetrating a gross violation of human rights.”

“Therefore, the Government believes that the Prosecution Office’s authority is not unconstitutional. So, the regulation is special. This is in line with Constitutional Court Decision No. 28/PUU-V/2007. The 1945 Constitution does not prohibit the dual function. Therefore, the Petitioner’s petition is legally groundless. This is because it is possible for the Prosecutor’s Office to conduct investigations through law-level arrangements and this authority is not unconstitutional,” said Feri, the Deputy Attorney General for Civil and State Administrative Court Affairs.

Coordination for Investigation

Feri further explained that the foreign policy provisions state that in addition to conducting prosecution, the Prosecutor’s Office can also conduct investigation into a crime if permitted by law. Meanwhile, Germany, France, and the Netherlands also regulate investigation by prosecutors. In essence, he said, prosecutors are in charge of investigations and based on the procedural law, prosecutors can also determine and conduct investigations under certain conditions, including as coordinator of investigation.

Next, in connection with the argument against Article 39 of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption, if there are difficulties in proving a case, the Prosecution Office can form a joint team. Normatively, the Attorney General can be the coordinator in handling and controlling investigations. Similarly, Article 50 paragraph (4), specifically the phrase ‘and/or the Prosecutor’s Office,’ of Law No. 30 of 2002 on the Corruption Eradication Commission (KPK Law), Feri said, is a coordinating provision that contains an obligation to coordinate with each other to inform each other of the stages of a joint investigation.

“Even this issue of granting investigative authority has shown effectiveness and efficiency in preventing corruption because there is a supervision system by other institutions as referred to in the KPK Law. The goal is none other than to develop a strong network and treat (other) institutions as partners so that corruption eradication can be carried out effectively and efficiently,” Feri said at the plenary hearing presided over by Chief Justice Anwar Usman, Deputy Chief Justice Saldi Isra, and the other constitutional justices. 

Common, Universal Practice

At the hearing, Reda Manthovani and Narendra Jatna from the Indonesian Prosecutors Association (PJI) also provided testimonies as Relevant Parties. The PJI’s counsel Ichsan Zikry explained that the Attorney General’s Office (AGO) plays a vital role in eradicating corruption. This can be seen from data that shows that in 2022, the AGO had investigated 1,689 cases, while the KPK investigated 120 cases, and the Police completed 128 cases. Based on these facts, Ichsan explained, without the Prosecutor’s Office, there would be much state loss. In addition, the Prosecutor’s Office investigation authority has become a common, universal practice not only in Indonesia, but also in Europe, the United States, and Asia (especially Japan).

“The investigative authority is not only an open legal policy, but is based on the Constitution and the state administration. Even based on the global trend of multi-agency authority, the authority of investigation of criminal acts has been given to various institutions. This is solely for the sake of law enforcement. Because in fact, Police investigators have limitations in preventing crimes,” Ichsan said.

Basuki from the AGO, who testified as a Relevant Party, also said the same thing about the AGO’s prosecution and investigation authority. The AGO is a body or institution that exercises judicial power, including investigation and prosecution. It can play an active role in the investigating crimes. The AGO Law, the Anti-Corruption Law, and the KPK Law that the Petitioner challenges is the state’s commitment in eradicating corruption.

“Because this crime is classified as a world-enemy crime, special regulations are needed,” he explained on site from the plenary courtroom.

Before concluding the hearing, Chief Justice Anwar said the next hearing would be held on Wednesday, June 14 at 11:00 AM to hear testimonies of the Indonesian Police and the KPK. 

Also read:

Advocate Challenges Prosecution’s Investigative Authority 

Advocate Revises Petition on Prosecution’s Investigative Authority

House’s View on Prosecution’s Authority to Investigate 

The petition No. 28/PUU-XXI/2023 was filed by M. Jasin Jamaluddin, an advocate. At the preliminary hearing on Wednesday, March 29, 2023, he asserted that the a quo articles were in violation of Article 28D paragraph (1) of the 1945 Constitution and that the granting of investigative authority on certain offenses to the Prosecution has led it to become a superpower. In addition to prosecution, it can also investigate.

The authority, which was granted by Article 30 paragraph (1) letter d of the Prosecution Law, has enabled the Prosecution to conduct investigation arbitrarily. In addition, since pre-prosecution over investigations carried out by prosecutors is also carried out by prosecutors, so there is no control over investigations carried out by prosecutors by other institutions. In the absence of such control, prosecutors often ignore requests for the rights of suspects, such as requests for the examination of witnesses/experts for suspects to shed light on a case.

On February 21, 2023, a prosecutor declared the Petitioner’s client’s dossier incomplete and that a follow-up investigation would be carried out. However, despite the investigating prosecutor not having carried out that investigation, on February 23, the pre-prosecution prosecutor declared the dossier complete and transferred it to the public prosecutor. During the investigation, the Petitioner’s client asked that his witnesses and experts be examined to shed light on the case. however, the investigator and pre-prosecution prosecutor ignored the request.

Therefore, in the petitum, the Petitioner requested that the Court declare all the petitioned articles in violation of Article 28D paragraph (1) of the 1945 Constitution.   

Author       : Sri Pujianti
Editor        : Nur R.
PR            : Raisa Ayudhita
Translator  : Yuniar Widiastuti (NL)

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.

Wednesday, June 07, 2023 | 15:59 WIB 252