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. ●

Jokowi needs us, more than ever Togi Pangaribuan  ;  A lecturer at the School of Law, University of Indonesia

JAKARTA POST, 05 Februari 2015

                                                                                                                                     

                                                

Everyone is disappointed, but President Joko “Jokowi” Widodo needs our support; our assurance that we are with him and not with the vested interests surrounding him. In early January, Jokowi recommended the appointment of Comr. Gen. Budi Gunawan as the new chief of the National Police, effectively sending Gen. Sutarman into early retirement. The recommendation was quickly processed and endorsed by the legislature, in an abnormal show of unity, despite Budi being declared a graft suspect by the Corruption Eradication Commission (KPK). However, because of his status as a suspect, Jokowi postponed the appointment. Replicating previous KPK — police incidents of the past, KPK commissioners are being investigated for alleged crimes that happened years ago. One has been declared a suspect. Jokowi then formed an independent team to advise him on what to do. The team has gone on record to say that Jokowi is under immense external pressure to appoint Budi despite growing controversy and public anguish. It is probably an understatement to say that Jokowi is currently trapped between a rock and a hard place. Former president Susilo Bambang Yudhoyono, despite enjoying a landslide victory of over 60 percent in the 2009 presidential election, was thought to have had a difficult second term rife with compromise and kowtowing with factions of the House of Representatives. Jokowi, not in command of his party, facing a divided House and now surrounded by people with their own agenda, is facing a heavier task. A study in 2010 by renowned political scientists William Liddle and Saiful Mujani highlighted the strong influence of political parties and authoritative figures inside a party as the cappo di tutti capi of the organization. This was evident in the appointment of Jokowi as presidential candidate of the Indonesian Democratic Party of Struggle (PDI-P) and the strong encouragement of the NasDem Party, through chairman Surya Paloh. In his presidential campaign, Jokowi promised to enforce merit-based political appointments, but he has succumbed to returning the favors of his own party and other parties that supported him. Budi Gunawan is widely known to be close with PDI-P chairperson Megawati and the party. He is her former aide-de-camp and high-ranking PDI-P officers publicly call him their close friend. He is also known to have a wide network of friends in the legislature, within the police and several conglomerates. He is even alleged to have played a significant part in pairing Jokowi with Vice President Jusuf Kalla. He did not make it as a minister and is on the verge of not making it as chief of police. It seems his camp is fighting back, using the law as a tool. Using their wide powers to apprehend and establish a person as a suspect. They have established Bambang Widjojanto as a suspect in a 2010 case and are on their way to investigating at least another deputy, Adnan Pandu Praja, for a 2006 case. This wide power of the police to apprehend and determine an individual as a suspect is one of the main concerns in the discussion to revise the Criminal Law Procedures Code (KUHAP). Aside from probably minor procedural aspects, the apprehending and questioning of Bambang Widjojanto were within the authority of the police. The interests that want Budi as chief of police have used the law as a tool to serve their purpose, much like how the late president Soeharto, who the PDI-P militantly fought, used the law to oppress them and democracy. Jokowi is virtually powerless — his own party official is throwing around the idea of impeachment, other parties in his coalition are fighting him. Volunteers who used to march with him have started to voice disappointment and disbelief. People have even started saying that Yudhoyono, or SBY, was a firmer decision maker. This was a massive turnaround before his presidency even reached 100 days. People seemed to forget that Jokowi had achieved a lot in his first 100 days, including the development of seaports, simplifying investment procedures and revising government procurement regulations to ensure food security and independence from imports. In his recent speech and interview on Kompas TV, the President looked somber and clueless, forgetting that he has prolific lawyers who were there for the KPK during the earlier tumult of KPK leaders Bibit S. Rianto and Chandra Hamzah at his disposal, forgetting the enthusiasm of the people when he was elected president. Forgetting the massive support he received during his campaign. Forgetting the sheer number of people who volunteered for someone they legitimately saw as a drop of water in the dry desert that is Indonesian politics. We need to remind him of all this. We need to rally behind him and remind him that we voted for him and that the people are far more important than the party. And he should look no further for an example than his friend, Jakarta Governor Basuki “Ahok” Tjahaja Purnama, who chose the people over allegiance to a misguided political party. ●

President Obama’s words are important for Indonesia

President Obama’s words are important for Indonesia Togi Pangaribuan ;  The writer is A Lecturer at the Faculty of Law at the University of Indonesia and is also a Jakarta-based lawyer

JAKARTA POST, 25 Januari 2013

The inauguration was beautiful. Beyonce sang the national anthem and Michelle Obama showed off her new bangs. Obama did not mess up his oath like he did in 2009 and the struggle for reelection — a struggle lasting about two years, ended in a 32-second swearing in, which took place in the Blue Room of the White House. Most of us watched with different emotions, views and concerns. As the new leader of the free world was being inaugurated, the most important question we should have been asking ourselves was this: What was in it for us Indonesians? Indonesians should refrain from only focusing on the emotional connection Obama has with us and should start realizing that Obama’s policies have been very beneficial for Indonesians.  We must utilize his second term to the full. The US is a very important partner for Indonesia.  It is Indonesia’s third-biggest market for non-oil and gas exports, after Japan and China.  Indonesia shipped US$11.08 billion of such products globally in the January-September period. In terms of foreign investment, the US is the fifth biggest in Indonesia, with actual investment recorded at $700 million in the January-September 2012 period.  The US is also Indonesia’s fourth-biggest trading partner after Japan, China and Singapore.  The Indonesian market reacted positively on the day Barack Obama was declared winner of last year’s presidential election. The Jakarta Composite Index (JCI) rose 0.65 percent to 4,341 points.  However, it is also important to note that Obama’s unfavorable policies toward the coal industry — through heavy handed Environmental Protection Agency regulations — may have negative spillover effects. We also need to remember that the US is facing a budget deficit of almost 9 percent, which might cause a decrease in the rates of Indonesian exports. Obama is also predicted to increase tax for the high earners, including investors, to spur economic growth. Experts say that this will further slow the US economy and that it could very well negatively affect our trade with the US. It is also possible that Obama might reduce state expenditure by putting pressure on import demands from other countries, especially China. This could also slow down China’s economy and ultimately affect us. However, it will be interesting to see the continuation of the much talked about “pivot” from the Middle East to Asia, which the Obama administration has been conducting for the past few years, and also to see what it truly delivers to the region and especially to Indonesia.  We must applaud our Indonesian diplomats in achieving the milestone in diplomatic relations between the two countries in the form of the signing of the Global Comprehensive Partnership in 2009. Through this framework, we have signed many agreements including a science and technology cooperation agreement, an Overseas Investment Corporation agreement, a defense cooperation framework agreement, the return of the Peace Corps to Indonesia, and renewed contact with Indonesia’s special forces. However, it is important to closely observe these increased bilateral relations because we need to determine whether they bring real progress to the sectors being developed for cooperation.  Some observers say that these bilateral relations are mostly front-loaded, so the end results must be watched closely. Obama is the first US president since Dwight D. Eisenhower to be reelected for his second term with more than 51 percent of the vote in two consecutive elections. This will reflect on how he governs.  As he has shown through his speeches on gun control, the fiscal cliff and the debt ceiling, he has indicated that he will seize his second term and govern boldly. This includes his continued engagement with the Asia-Pacific region, especially Indonesia, and it is up to us to accept this invitation and utilize it to our benefit. ●