Will the Anti Corruption Commission (KPK) be weakened?

[ronb]

I just read an interesting article on KPK which begins

In 2006, the Indonesian Constitutional Court found sections of current anti-corruption legislation to be unconstitutional. As a result of this decision, at least crucial parts of the existing law will become invalid on 19 December 2009. The Anti-Corruption Court will disappear. This impending deadline provides Indonesian legislators with the opportunity not only to ensure the continuation of anti-corruption law, but also to improve it. But the legislation proposed so far would reduce prosecutorial capacity and weaken anti-corruption institutions rather than strengthen them.

Read the complete article at:
http://insideindonesia.org/index.php?option=com_content&task=view&id=1205&Itemid=47

 

[KaBIm]

Hi Ronb,
First of all, I am sorry if I am repeating what the link says. I hadn't the courage to read it due to the length of the article.
I just would like to give a precision about the decision made by Mahkamah Konstitusi (Constitutional Court) in 2006. It indeed stated that the Tipikor (Anti Corruption Court)'s creation status is unconstitutional and gave to the DPR of Indonesia 3 years (meaning untill Dec, 19th 2009) to pass a new bill giving it a legal basis. The problem is that Constitution RI requires that any tribunal has a status of his own (ex: we have a Supreme Court which has his own law...etc). The problem is that the Corruption court has been founded not by a law of its own, but has been founded by the article 53 of the law concerning KPK. It is was has been deem unconstitutional. Normally, in 2002, when the DPR decided the creation of the KPK, they should have also voted a law concerning the creation of the Tipikor and not include it in the KPK law. KPK and Tipikor arev two different institution that must be independant one to the other (KPK are the prosecutors, Tipikor are the judge).
The legislature ends in October and there is still ample discussions about the draft of the law about Tipikor, which "explains" why the law has not been passed yet.
What is frightenning is that if the law on Tipikor is not passed before the deadline we can well be in a weird situation where people would have been sentenced by a court which has no constitutional basis. Some convicted corruptors could technicaly challenge any decision taken by this court...
However, I do not (want to) believe that the DPR would play this fool game up to the point that they don't pass the bill. However, such bill would have require much more serenity.
About "But the legislation proposed so far would reduce prosecutorial capacity and weaken anti-corruption institutions rather than strengthen them.", I do not totally agree, having read the latest draft of the law on Tipikor. To date, some could easily argue that the right of the defendants are not respected due to the fact that KPK/Tipikor aren't clearly separated. It is right. At the moment, one can say that if one is targetted by the KPK, one is already in jail. It ain't wrong. Lot's of improvment have to be made, but to be honest, I would like to read the final draft before making a statement such as the one in the quote. In the past 3 years, a lot of modifications have been done to the draft, which does not help to see clearly where it goes.

 

[gilbert de jong]

Kabim....
So if I read right...one who is now already convicted by an non constitunional court, can not appeal on those grounds?

 

[KaBIm]

If the court is unconstitutional, the sentence given by this court is also unconstitutional in my understanding of the law. Therefore, convicted criminals could challenge the decision given... and walk free.
At the moment, the Tipikor (anti corruption court) is not unconstitutional because Mahkamah Konstitusi gave 3 years to enact a law giving a legal basis to the Tipikor. If the law is passed before the deadline, no problem. If not, then we have a legal problem to be solved: how come men can be hold in jail by a decision of a court which has no legal/constitutional basis?
DPRs are well aware about it, and this is why I believe they won't be silly enough not to pass the law on time.

 

[gilbert de jong]

So in a way, if one wants to think a little conspiracy, it could have gone something like this....let's see who catch in three years, and if there are some people caught that are too "important", we will just don't pass the law that makes their conviction legal? And after the three years we will start a-new....

 

[KaBIm]

To be honest Gil, I don't believe in the conspiracy theory. The decision of Mahkamah Konstitusi was motivated by what I described in my above post, but not only. The decision was also motivated on the ground that the system as defined by the KPK law to fight corruption established a concept of duality in the judiciary, by which a defendant tried in two different courts (tipikor vs general court) may well expect different treatment. All corruption case are not treated by KPK and Tipikor, therefore there is room for a double standard which leads to the absence of certainty. This is a problem. In general courts, corruptors tend get away with minor penalties, and some even manage to elude the law altogether. Just to give you a statistic, in 2006, 362 suspects involved in graft cases were judged by general courts in Indonesia... and 117 corruption suspects were freed while thirty-seven were sentenced to less than two years with no additional fines. KPK obtained much better results (100% ratio of conviction, but KPK has the right to "pick" the cases they prosecute ), but to the price of a poor respect of defendant rights. Some corruptors, condemned by the tipikor argued that if they would have been judged by a general court, the result would have been different.
KPK is a wonderful institution, but a lot of improvement are necessary in order to strenghten it on the long term. A proper and clear law for the anti corruption court is an absolut necessity if one want to really tackle the corruption problem of this country.

 

[KaBIm]

About the question asked in the tittle of the thread:
With or without Tipikor bill being passed before December 2009, KPK will still be able to investigate and prosecute graft cases. One has to understand the following: the law that created the Komisi Pemberantasan Korupsi is the Undang-Undang nomor 30 tahun 2002 tentang KPK. Only a couple of article of this law (including the one about the creation of the corruption court/tipikor) have been challenged. Therefore, the KPK itself will continue to bust corupt officials. The existence of the KPK is not challenged. It is just the basis of the actul anti corruption court that is controversial. Criminals could still be prosecuted by the KPK in front of a general court. However, as per my previous post, the one already sentenced could cause troubles.