Corruption Eradication Commission deputy chairpersons Nurul Gufron and Alexander Marwata testifying at material judicial review hearing of the Prosecution and KPK Laws, Wednesday (6/14/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Constitution does not explicitly and clearly state the apparatus structure model for corruption eradication. Instead, it gives the Government and lawmakers freedom to form the required apparatus, including to choose a functional differentiation model for synergy between the Police, the Prosecution Office, and the Corruption Eradication Commission (KPK) in corruption eradication in Indonesia.
This statement was made by KPK deputy chairperson Nurul Gufron as a Relevant Party at a material judicial review hearing for case No. 28/PUU-XXI/2023 at the Constitutional Court (MK) on Wednesday, June 14, 2023. The case was on 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).
Gufron testified over 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), which stipulates that the KPK, the Prosecution Office, and the Police are apparatuses formed by the state in line with the mandate of Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the KPK to implement the eradication of the criminal acts of corruption. These norms, he said, reflect the state’s acknowledgement to the three institutions, which is reflected clearly in Article 45 paragraph (1) of the KPK Law: “Corruption Eradication Commission investigators may come from the Police, the Prosecution Office, civil servant investigators who are given special authority by law, and Corruption Eradication Commission investigators.”
“This shows that the state legal politics at that time tended to conceptualize the Prosecution Office and the Police, who had investigation sources that could form an implementation team to eradicate corruption. Law No. 30 of 2002 authorizes the KPK to improve corruption eradication by combining these three institutions, i.e. the investigation and prosecution from among the Police, the Prosecution Office, and the KPK,” Gufron said before Deputy Chief Justice Saldi Isra and the other seven constitutional justices.
He also said that the implementation of corruption eradication by the three institutions is still necessary since Indonesia is still making optimal effort to eradicate corruption. The Petitioners should understand that the KPK Law and the Prosecution Law are not overlapping, but complement each other, and the temporary state of these pieces of legislation applies only when it is deemed necessary (until today). He illustrated the integrated control of corruption by the KPK, where investigation and prosecution are under one roof in order to strengthen the KPK’s function. As such, the Petitioners’ arguments in this case concern how the state restructure its organs for corruption eradication.
Coordination and Supervision by KPK
Next, KPK deputy chairperson Alexander Marwata testified over the quality control when a corruption case is handled by those three institutions. Based on his experience as a corruption judge, the KPK is faced with disparity over the quality of cases they handle.
He revealed a case where the KPK’s witness became a suspect during police investigation. The Prosecution Office and the Police actually has a mechanism to report the stages that the KPK had undergone through a notice of commencement of investigation (SPDP).
“Through an SPDP that is reported online, we wish [to receive] not only reports but also [notifications on the cases’] developments. However, in practice, [despite] mandated by law, it has not been implemented well,” he said.
Before adjourning the session, Deputy Chief Justice Saldi announced that the hearing would commence on Monday, June 26 at 11:00 WIB, where any echelon I official of the National Police or the equivalent would testify. He added that the written testimon(ies) should be submitted to the Registrar’s Office no later than two days before the hearing.
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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 14, 2023 | 16:47 WIB 138