The end of the KPK-Polri standoff? Togi Pangaribuan ;  A lecturer in the law department at the University of Indonesia, Depok, West Java

JAKARTA POST, 21 Februari 2015

                                                                                                                                     

                                                

It seems it has ended. President Joko “Jokowi” Widodo issued a decision regarding the Corruption Eradication Commission (KPK)-National Police (Polri) debacle by appointing deputy National Police chief Comr. Gen. Badrodin Haiti as the presumptive nominee for the police chief post. Badrodin’s nomination followed Jokowi’s cancelation of Comr. Gen. Budi Gunawan’s inauguration as the new National Police chief. Jokowi also appointed trusted old faces to fill the KPK commissioner posts left vacant by Bambang Wi- djojanto and Abraham Samad. Some are ambivalent about the decision, most are happy, so much so that the hashtag “#JokowiKita” became a worldwide Twitter trending topic within an hour after Jokowi’s statement. The decision somewhat heals but it is merely a band-aid for a bullet wound. It took excruciatingly long, more than one month, at the expense of the Indonesian legal system and common sense, while leaving several important questions unanswered. Earlier in the week the South Jakarta District Court through Judge Sarpin Rizaldi invalidated the KPK’s decision to declare Budi a suspect. The judge’s major considerations included his interpretation that Budi was neither a state administrator nor a legal enforcement officer at the time the alleged corrupt act took place and KPK failed to prove state losses resulting from the case (The Jakarta Post, Feb. 2, 2015). While carrying out their duties, judges must follow a principle called ius curia novit, which generally means a judge cannot reject a case simply because the law is unclear or incomplete. In the interest of the greater good and justice, a judge may discover a new law that is not written to adjudicate on a matter. Even though the Criminal Law Procedure Code does not mention the process through which one declares another a suspect among matters that can be examined in a pretrial hearing unlike in other countries, calls for this change have been made in the proposed revision of the Code. In this regard, Judge Sarpin’s use of ius curia novit and the implementation of a judge’s authority to find the law in Law No. 48/2009 must be commended. Regardless of his analysis in finding this law, Sarpin is considered progressive. However, his two other considerations paint a different picture. His consideration that Budi is neither a state administrator nor a law enforcement officer clearly violates Article 11 of Law No. 11/2002 on the KPK that is not meant to be cumulative. It also breaches Article 2 of Law No. 2/2002 on the National Police, which says all police officers are law enforcers. Sarpin’s final consideration is also incorrect as Articles 11, 12 and 12b of Law No. 31/1999 and Law No. 20/2001 on corruption eradication does not require state losses, that is why state loss does not need to be proven. Did Judge Sarpin really achieve an epiphany and discover a law for the greater good and justice or did he just illogically bend the law to serve an individual interest? Only time will tell. In addition to sacrificing legal principles, President Jokowi’s statement also leaves some questions unanswered. I imagine that removing Budi as the police chief nominee must be an extraordinary political feat to pull given the almost resounding support for him from the usually divided House of Representatives. This is a brave decision for the President to take that we must applaud. However, we must remain cautious as Jokowi also said that Budi was expected to continue to provide a meaningful contribution to the National Police. This wording is suspect of political compromise, one that we have not seen materialize and one that we have to continue to keep an eye on. Further, the pretrial decision does not mean that Budi is released of his allegations, it just means that there is a formal flaw in how Budi was named suspect. If KPK really believes that Budi has committed corruption, it could simply revise the investigation procedures and continue its probe into the police general. President Jokowi’s statement also fails to answer what would become of KPK chief Abraham and deputy chief Bambang given their statuses as suspects on dubious charges. Of course, the practical solution would be for both to request a pretrial hearing like Budi has done. The fact is the President has dismissed the two KPK leaders in line with the KPK law, because they are criminal suspects. Jokowi’s statement also fails to answer the seemingly never ending charges against other KPK commissioners and investigators. The President has repeatedly said that the KPK and Polri must play nice and no criminalization should take place. So far, this has fallen on deaf ears. Recently it was the commissioners and now 21 KPK investigators that are under police’ investigation for the illegal possession of firearms. John Austin, a renowned legal positivist, once said that law is the command of the lawgiver. Daniel S. Lev, a renowned scholar of Indonesia, also pointed out that the most important deciding factor in a legal process is the conception and the structure of power. Putting it harshly, law is sometimes nothing more than a slave to politics and power. This sad fact has never been more clearly displayed than in the KPK-Polri fiasco. Let us not forget that it was Jokowi who was insistent on Budi in the first place, claiming that he sees no problem with nominating him, even though resistance to Budi started during the vetting of the cabinet member hopefuls. It took a sacrifice of legal principles and common sense to help fix the situation. Judging from the sacrifices that were made and the unanswered questions, there will be more to come of this fiasco, the end is not near. Therefore, rather than just saving KPK or Polri, more importantly, we must save Indonesia. ●