Riki Perdana Raya Waruwu testifying on behalf of the Supreme Court as a relevant party at a judicial review hearing of the KPK Law and the Criminal Procedure Code, Thursday (3/14/2024). Photo by MKRI/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) held another hearing for case No. 87/PUUXX/2023, filed by Gugum Ridho Putra, on Thursday, March 14, 2024. The eighth material judicial review hearing of Law No. 30 of 2002 on the Corruption Eradication Commission (KPK) as amended by Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the Corruption Eradication Commission (KPK Law) as well as Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) took place in the plenary courtroom. The Supreme Court (MA) and the Indonesian Prosecutors Association (PJI) presented their statements as relevant parties while Bambang Suheryadi testified as an expert for the Corruption Eradication Commission (KPK).
The Supreme Court’s representative Riki Perdana Raya Waruwu said Article 16 of Law No. 48 of 2009 on Judicial Power indicates there is a practical need for crimes committed jointly by perpetrators who are subject to the general and military courts to be tried and examined in the general court. However, in certain circumstances, on the basis of a decree of the chief justice of the Supreme Court, a case is examined and tried by a court within the military justice. This, he continued, is in line with the Supreme Court’s position as the highest state court, the norm of which is contained in Article 20 paragraph (1) of the Judicial Law. The decision of the chief justice of the Supreme Court determines the competence of the judiciary, while the military (TNI) and the KPK are equal in a professional inquiry/investigation carried out through coordination in accordance with the authority of each of the agencies.
“In connection with the provision for resolving corruption cases with connexity in the military and general courts, there is no legal vacuum on investigating, prosecuting, and bringing cases to trial. This is because the mechanism has been regulated in detail in the connexity chapter in the criminal procedure law. Thus, there are no juridical obstacles in examining connexity cases in the Supreme Court,” said the assistant to Supreme Court justices for the Law and Public Relations Bureau.
Authority to “Control”
Next, Ichsan Zikry from PJI said that prior to the amendment of the KPK Law, Article 21 paragraph (4) stipulated that KPK commissioners be investigators and public prosecutors. Consequently, they have the authority to control cases handled by the Prosecution Office, as the agency in charge of carrying out prosecution. However, after the amendment, they are no longer public prosecutors. Therefore, the authority to “control” in Article 42 of the KPK Law can no longer be exercised.
What needs to be considered, continued Ichsan, is that although the authority to “control” in Article 42 of the KPK Law is technically unenforceable, it does not lead to a vacuum in the handling of connexity corruption cases because Article 35 paragraph (1) letter g of the Prosecution Law and its amendment regulates that the task of coordinating, controlling, and conducting inquiry, investigation, and prosecution of connexity cases lies with the Attorney General.
“Thus, the provision of Article 35 paragraph (1) letter g of the Prosecution Law is basically in line with Article 12A of the KPK Law, which regulates that in carrying out prosecution duties, public prosecutors at the KPK carry out coordination in accordance with the laws and regulations contained in the Prosecution Law,” Ichsan said.
Interpretation Following Times
Meanwhile, as an expert presented by the KPK, Bambang Suheryadi said the power to enforce criminal law includes power in the fields of investigation, prosecution, examination/trial, and sentencing. The Police, the Prosecution Office, and the KPK are law enforcement agencies that have authority based on the law. The principles of fast, simple and low cost justice will be fulfilled if good cooperation between law enforcement agencies can be ensured in separate handling by two judicial systems of corruption crimes committed jointly by people subject to general and military courts. In addition, the objective of criminal law enforcement, i.e. to seek material truth, will be reached.
For legal certainty, phrases in the Criminal Procedure Code (KUHAP) and Military Justice Law that regulate connexity need to be interpreted following the times, due to the existence of new laws and new law enforcement agencies. The Criminal Procedure Code and the Military Justice Law are formal laws that regulate authority and its use by law enforcers. The regulation and use of authority do not merely concern the division of authority within the institutions involved in handling criminal cases.
“However, the most important thing is that, on the one hand, this norm limits the exercise of authority and, on the other hand, the rights of suspects and defendants are protected. So, this is the urgency of new interpretation for the sake of legal certainty and the protection of the rights of suspects and defendants,” said the law expert of Airlangga University.
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The petition No. 87/PUUXX/2023 was filed by Gugum Ridho Putra, an advocate. The Petitioner challenges Law No. 30 of 2002 on the Corruption Eradication Commission (KPK Law), as last amended by Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002, and Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP).
Specifically, he challenges the phrase “coordinate and control” in Article 42 of the KPK Law as well as the word “Investigator” in Article 89 paragraph (2); the phrase “Minister of Justice” in Article 89 paragraph (1), Article 89 paragraph (3), Article 91 paragraph (2), and Article 94 paragraph (5); the phrase “prosecutor or high prosecutor” in Article 90 paragraph (1), Article 90 paragraph (3), Article 91 paragraph (1), and Article 91 paragraph (3); the phrase “high prosecutor” in Article 93 paragraph (1); the phrase “Attorney General” in Article 90 paragraph (3), Article 93 paragraphs (1), (2), and (3); the phrase “Public Prosecutor” in Article 91 paragraph (1), Article 92 paragraph (1), and Article 93 paragraph (1) of the KUHAP.
The Petitioner cited impairment related to the authority to investigate criminal offenses in connexity or criminal offenses involving both civilians and military officers, especially corruption crimes handled by the KPK. He believes the handling of corruption cases in connexity by the KPK is inclined to prioritize punishment on criminals who are civilians. He believes the KPK’s unprofessionalism in handling connexity cases is due to unclear norms regulating the investigation and prosecution of connexity offenses.
Therefore, in the petitum, the Petitioner requests that the Court grant his petition and declare Law No. 30 of 2002 on the Corruption Eradication Commission and Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP) unconstitutional and not legally binding and, among other things, declare the phrase “coordinate and control” in Article 42 of the KPK Law means that the KPK is obliged to coordinate and control the handling of connexity corruption cases in accordance with Articles 89, 90, 91, 92, 93, and 94 of the KUHAP.
Author : Sri Pujianti
Editor : Lulu Anjarsari P.
PR : Fauzan Febriyan
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.
Thursday, March 14, 2024 | 14:50 WIB 148