Petitioner Boyamin bin Saiman at the ruling hearing of the judicial review of Article 34 of Law No. 30 of 2002 on the Corruption Eradication Commission, Tuesday (8/15/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) held that the tenure of the Corruption Eradication Commission (KPK) leaders is five years, as referred to in the Constitutional Court Decision No. 112/PUU-XX/2022, and applies to the current KPK commissioners. This statement was part of the Court’s Decision No. 68/PUU-XXI/2023 read out at a ruling hearing on Tuesday, August 15, 2023 in the plenary courtroom.
In its legal opinion, read out by Constitutional Justice Suhartoyo, the Court held that it had ruled in Decision Number 112/PUU-XX/2022 over Article 34 of the KPK Law, which stipulated that the KPK commissioners’ tenure would be four years. The Court provided in that decision that its ruling on the KPK commissioners’ tenure scheme would not cause the president and House of Representatives (DPR) to select current KPK leadership twice during their term and that this would go on for at least the next 20 years. The extension of the current KPK commissioners’ tenure to five years results in a one-time selection of KPK commissioners the president and the House, whose term last in 2019-2024, that is in December 2019. The next KPK leaders (2024-2029) will also be selected by the next president and House members.
“Thus, there is no longer any doubt to the Constitutional Court Decision, that the five-year tenure of the KPK commissioners also applies to the current KPK commissioners. This is also in line with Article 47 of the Constitutional Court Law, which emphasizes that the Constitutional Court’s decision has permanent legal force since it is pronounced in a plenary hearing that open to the public. In other words, the five-year tenure also applies to the current KPK commissioners, so their term will end on December 20, 2024. This means that it does not contradict the principle of non-retroactivity,” said Justice Suhartoyo reading out the decision.
Following Up on Constitutional Court’s Decision
Next, Constitutional Justice Manahan M. P. Sitompul delivered the Court’s view on the Petitioners’ concerns that if the presidential decree on the extension of the KPK commissioners’ tenure ending on December 20, 2024 was canceled it would lead to legal uncertainty and chaos on the KPK’s law enforcement actions against corruption crimes. The Court believes this to be unreasonable because as the Court’s decision’s addressee, the president already followed up on Decision No. 112/PUU-XX/2022. This means that he correctly and carefully understood that the Court’s decision was not only its verdict, but also its identity, subject matter, and legal considerations. Even the court transcripts are an inseparable unit of the decision.
In short, the legal considerations of Decision No. 112/PUU-XX/2022 aim to answer the concern of the current KPK commissioners’ tenure, which will end on December 20, 2023, and interprets their tenure to last five years. As a juridical consequence, before the current KPK commissioners’ tenure expires, the president should immediately issue a decree to extend their tenure until December 20, 2024.
“Thus, the current KPK commissioners get legal certainty and equitable benefits as ordered by the Constitutional Court Decision No. 112/PUU-XX/2022. Likewise, the community also obtained legal certainty as argued by the Petitioners,” Justice Manahan said.
Next Leadership
Deputy Chief Justice Saldi Isra had a concurring opinion. Upon careful reading of the petition, specifically the petitum that reads, “‘The commissioner of the Corruption Eradication Commission shall hold office for 5 (five) years and can be re-elected for only one term’ as interpreted in the Constitutional Court Decision No. 112/PUU-XX/2022 as ‘The provision that the commissioners of the Corruption Eradication Commission hold office for 5 (five) years shall apply to the commissioners of the next period’” could not resolve the Petitioners’ constitutional issue, which is the definition of “commissioners of the next period.”
The unclear time limit in that phrase also means that the Petitioners were unable to provide confirmation of the Decision No. 112/PUU-XX/2022. According to logical reasoning, Justice Saldi added, the Petitioners tried to find a way out of the ambiguity of said decision. However, the petitum they proposed was obscure. Primarily, it is unclear when to actually calculate the time of “commissioners of the next period” the Petitioners intended. Justice Saldi asserted that based on these reasons, in accordance with the provisions of Article 74 of Constitutional Court Regulation (PMK) No. 2 of 2021, the Court should not have discussed the petition’s subject matter to declare it obscure.
All in all, the Court decided that the petition was inadmissible. “[The Court] declares the Petitioners’ petition inadmissible,” said Chief Justice Anwar Usman reading out the verdict.
Also read:
Constitutionality of KPK Commissioners’ Tenure Questioned
MAKI and Advocate Strengthens Legal Reasoning on KPK Commissioners’ Tenure
At the preliminary hearing on Monday, July 10, the Petitioners—the Indonesian Anti-Corruption Society (MAKI/Petitioner I) represented by advocates Boyamin bin Saiman and Christophorus Harno (Petitioner II) —asserted that the Constitutional Court had interpreted Article 34 of the KPK Law (“The Commissioners of the KPK shall hold office for a term of 4 (four) years, and may be reappointed for one term.”) in Decision No. 112/PUU-XX/2022. The KPK commissioners now hold office for a term of five years and can be reappointed for one more term. The Petitioners believed this to be against Article 27 paragraph (1) and Article 28D of the 1945 Constitution since it was retroactive and Petitioner II had been kept from joining the selection for KPK commissioners. He believed the norm should not be retroactive and the KPK commissioners’ tenure should be different from that of the executive and legislative in order to maintain the KPK’s independence.
Therefore, in the petitum, the Petitioners requested that the Court declare Article 34 of Law No. 30 of 2002 on the KPK in conjunction with the Constitutional Court Decision No. 112/PUU-XX/2022 unconstitutional and not legally binding if not interpreted as “The commissioners of the Corruption Eradication Commission shall hold office for a term of 5 (five) years, and this applies for the next term (2023–2028).”
Author : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
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, August 15, 2023 | 15:48 WIB 276