Another material judicial review hearing of the Prosecution and KPK Laws to hear the Attorney General’s Office’s experts, Monday (9/18/2023). Photo by MKRI/Ifa.

JAKARTA (MKRI) — The Prosecution Office’s investigative authority is not against universal general practices. In the US, the Prosecution Office or public prosecutors also investigate and prosecute corruption cases. The Federal Bureau of Investigation (FBI) is even under the Attorney General (AG), who is the highest prosecutor. This also applies in Japan and Germany. In the Criminal Procedure of Romania and China, corruption offenses are even under the prosecutors’ jurisdiction.

This information was provided by Suparji, a professor at the Al-Azhar University of Indonesia (UAI), who testified as an expert for the AG Office (Relevant Party) at another 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). The eleventh hearing for case No. 28/PUU-XXI/2023, filed by advocate M. Jasin Jamaluddin, took place on Monday, September 18, 2023 in the plenary courtroom.

Development of Legal Needs

Suparji also said that separation and limitation of state powers are the consequence of Article 1 paragraph (3) of the 1945 Constitution. This regulation on the Prosecution’s function, he said, is also enshrined in Article 24 paragraph (3) of the 1945 Constitution and Article 38 of Law No. 48 of 2009 on Judicial Power. Meanwhile, their jurisdiction over the prosecution and investigation of specific criminal offenses are regulated in Article 30 paragraph (1) of Law No. 16 of 2004 or Law No. 11 of 2021.

The development of legal needs, Suparji revealed, resulted in functional differentiation in the KUHAP, so that functions are no longer separate, but construed as an integrated criminal justice system.

“The perspective that wishes for separation of authority and coordination function between investigation and prosecution is a fallacy, because investigation is part of the prosecution process, as is practiced in general internationally following the concept of an integrated criminal justice system. This is emphasized in the enforcement of the investigation authority and prosecution in the Corruption Eradication Commission as set forth in the elucidation to Law No. 30 of 2002 of the KPK,” he explained.

Suparji also said that in the perspective of criminology, an offense is extraordinary if, first, it has vast and multidimensional impact. Second, it must be transnational, organized, and supported by ICT. Third, it must be a predicated crime or involve money laundering. Fourth, it must need special criminal procedure. Fifth, it must need special law enforcement support institutions that have special authority. Sixth, it must be based on international convention or is a treaty-based crime. Seventh, it must be evil and despicable, and highly condemned by both national and international societies.

“Under those seven requirements of extraordinary crimes, in criminology, criminal acts of corruption can be qualified as extraordinary crimes. As such, there is urgency that the Prosecution Office perform investigation [into those crimes],” he explained.

He emphasized that the Prosecution Office’s investigative authority has no constitutional issue. “Hopefully it can be reinforced continually according to the development of public legal needs,” Suparji concluded.

Corruption Eradication Requires Extraordinary Methods

At the hearing, the AG Office also presented constitutional law expert of Universitas Jenderal Soedirman (Unsoed) Muhammad Fauzan. He said that despite the Prosecution Office not being mentioned in the 1945 Constitution even once, it does not mean that it is merely a complementary judicial institution, because it exists in the administration of Indonesia since the independence era to post-Reform era despite only being regulated in legal products under the 1945 Constitution. The history of Indonesia’s administration shows that the Prosecution Office’s main duties and functions have always been related to the judicial power, especially in prosecution and investigation.

“Several statutory legislations that have been in effect—those in effect before the 1945 Constitution was amended or during the Independence, the Old Order, and the New Order, or after the amendment to the 1945 Constitution or the Reform Order—show that the Prosecution Office is a law enforcement institution that has the authority to perform investigation and prosecution,” Fauzan said.

These legislations are Law No. 19 of 1948, Law No. 15 of 1961, Law No. 11/PNPS of 1963, and Law No. 3 of 1971 on the Criminal Acts of Corruption. The Prosecution Office’s investigative authority can also be observed in laws that regulate the Prosecution Office—some are not in effect anymore; some are still in force—such as Law No. 5 of 1991 on the Prosecution Office of the Republic of Indonesia, which was declared null and void by Law No. 16 of 2004 in conjunction with Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on the Prosecution Office of the Republic of Indonesia.

“Based on that explanation, [I] conclude that aside from having the authority to prosecute and implement the judge’s decision, the Prosecution Office has also been granted authority to perform investigation. This authority is actually a legal policy that the legislatures, in this case the House and the president, made,” Fauzan said.

He believes the Prosecution Office has been given not only the sole holder of the authority of dominus litis prosecution in corruption cases, but also the authority to perform investigation into specific crimes based on statutory laws. This is in line with Article 24 paragraph (3) of the 1945 Constitution.

“The authority to investigate a crime, including specific crimes, especially corruption crimes, is not the monopoly of just one law enforcement [institution]. Not to mention, where the rate of corruption crimes is relatively high, the mitigation and eradication of corruption requires extraordinary methods. The important thing is that the law enforcement [institutions] given the investigative authority should overcome and prevent corruption in the country jointly through good coordination, so that overlap in investigation can be eliminated,” Fauzan explained.

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 

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

Law Enforcement Overlap over Corruption Cases

Witnesses Deliver Accounts on Investigation Process 

House’s, President’s Experts Testify on Prosecutor’s Authority as Corruption Investigators

Prosecutors Association Presents Experts on Prosecution’s Investigative Authority 

At the preliminary hearing on Wednesday, March 29, 2023, the Petitioner—who questions the Prosecution Office’s investigative authority to specific crimes—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 specific offenses to the Prosecution Office 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 Office 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.