Law Enforcement Overlap over Corruption Cases

Corruption crimes expert Jamin Ginting testifying for the Petitioner at a material judicial review hearing of the Prosecution and KPK Laws, Tuesday (7/11/2023). Photo by Humas MK/Ifa.

JAKARTA (MKRI) — In the principle of functional differentiation, each law enforcer performs duties in accordance with their roles and positions mandated in Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP). It stipulates that investigators be state police officers or certain civil servants who are specifically authorized by law to conduct investigations, that inquirers are state police officers who are authorized by law to conduct inquiries, that prosecutors are officials authorized by law to act as public prosecutors and carry out court decisions that have obtained permanent legal force, and that public prosecutors are prosecutors authorized by law to carry out prosecutions and implement judges’ decisions.

This statement was made by Jamin Ginting, an expert of corruption crimes, for the Petitioner at a material judicial review hearing for case No. 28/PUU-XXI/2023, which the Constitutional Court (MK) held on Tuesday, July 11, 2023. The Petitioner, advocate M. Jasin Jamaluddin, challenges 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).

Ginting explained that based on Article 109 of the KUHAP and in line with Constitutional Court Decision No. 130/PUU-XIII/2013, since a notice of investigation commencement (SPDP) is issued, prosecutors are granted with coordination and oversight authority. Their role in providing instructions in pre-prosecution is to improve the investigator’s investigation. Thus, he continued, the investigation and inquiries after the KUHAP should no longer be prosecutors’ authority.

“Because in the end, this will bias the checks-and-balances function in supervision. Where investigators and inquirers are prosecutors, public prosecutors are also prosecutors. This sectoral and emotional institutional ego to protect each other will actually obscure the supervisory function,” he said at the plenary hearing chaired by Deputy Chief Justice Saldi Isra and the other constitutional justices in the plenary courtroom.

Therefore, based on the Constitutional Court Decision No. 28/PUU-V/2007, Ginting argued that it is necessary to create a state institutional structure to handle corruption crimes: the Supreme Court as the judicial body; the Attorney General’s Office as the prosecutor body; the KPK (Corruption Eradication Commission) and the Police/PPNS (civil service investigators) as the investigator body; and PPATK (Center for Financial Transaction Reports and Analysis Center), BI (Bank of Indonesia), BPK (Audit Board), Ministry of Foreign Affairs, Ministry of Finance, Ministry of Law and Human Rights, and the Asset Management Agency as the supporting body. As such, Ginting believes the overlapping investigative function by existing law enforcement officials will be addressed appropriately. 

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Advocate Revises Petition on Prosecution’s Investigative Authority

House’s View on Prosecution’s Authority to Investigate 

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

Different Functions of Police, Prosecution, KPK in Corruption Eradication 

Investigators of Police, Prosecution, KPK Synergize in Corruption Eradication

At the preliminary hearing on Wednesday, March 29, 2023, the Petitioner 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.

Tuesday, July 11, 2023 | 16:02 WIB 235