Legal counsel Alex Argo Hernowo conveying revisions to the material judicial review petition of Anti-Corruption Laws, Wednesday (9/18/2024). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — Another judicial review hearing of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption and Law No. 20 of 2001 on the Amendment to Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption (Anti-Corruption Law) was held by the Constitutional Court (MK) held the preliminary for the judicial review on Wednesday, September 18, 2024. The case No. 114/PUU-XXII/2024 was filed by Antonius Nicholas Stephanus Kosasih, former investment director of PT Taspen (Persero).

In his petition, the Petitioner explained that he had been accused of corruption as referred to in the a quo Law, which has been amended by Law No. 20 of 2001, in relation to the company’s investment in 2019 managed by PT Insight Investments Management (PT IIM).

The charge was allegedly based on an optimization policy to save PT Taspen’s assets related to the the ijarah sukuk of PT Tiga Pilar Sejahtera Food, Tbk. (PT TPSF), which could potentially be going bankrupt. The policy has been analyzed by an internal team and an independent external team, approved by the board of directors meeting. This policy was taken as a strategic and discretionary step (freies ermessen) to avoid greater losses for PT Taspen and the state. However, this policy is considered a criminal act of corruption because it is seen detrimental to state finances.

At the hearing chaired by Deputy Chief Justice Saldi Isra, legal counsel Alex Argo Hernowo conveyed the revisions to the petition and addition of articles following the constitutional justices’ advice at the previous hearing. “We added articles, especially on [the part of] the Court’s authority, i.e. Article 7 paragraph (1),” he explained.

He added that point 2 on legal standing was added with the Petitioner’s status as an Indonesian citizen. “In point 3, we explain the constitutional right and the loss of it, as well as the causality between the enforcement of the a quo and the Constitution, and lastly, the possibility that if the petition is granted, no such constitutional impairment will happen,” Alex said.

Also read: Ex-Taspen Director Challenges Anti-Corruption Law

The Petitioner believes the discretionary indictment shows an overly broad interpretation of Article 2 paragraph (1) and Article 3 of the Anti-Corruption Law, due to the lack of explicit regulation of prohibited acts (actus reus) in both articles. Furthermore, he argues that contradiction in court decisions is an important basis for this petition. In addition to the ongoing debate regarding the judicial review petition of Article 2 paragraph (1) and Article 3 of the Anti-Corruption Law, there are also conflicting court decisions on the application of the two articles. Such a contradiction often arises in cases where the question is whether the defendant’s actions constitute corrupt conduct, a risk of poor policymaking, or simply an administrative offense.

The Petitioner asserted that declaring the a quo article null and void does not mean that acts of corruption cannot be punished, because all acts of corruption have actually been clearly described in other articles in the Anti-Corruption Law. Thus, he requests the Constitutional Court to declare Article 2 paragraph (1) and Article 3 of Law No. 31 of 1999, along with its amendment in Law No. 20 of 2001, unconstitutional. He also requests that the Court declare that the two articles not legally binding for being incompatible with constitutional principles that guarantee fair legal certainty and protect human rights.

Author            : Utami Argawati
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.

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