Sonny
Wibisono*[1]
I.
FOREWORD
Since its birth, the Corruption Eradication Commission
(KPK) playing role as a independent institution that acts as a trigger
mechanism for other law enforcement institutions in Indonesia that can empower
the public skepticism about weak law enforcement. Corruption Eradication
Commission has legal facilities and infrastructure with extraordinary levels of
authority (extra ordinary power) that are different from other law enforcement
institutions in Indonesia. The extra ordinary fundamental authority of Corruption
Eradication Commission has became as the front-gate of the existence of itself,
starting from the investigation stage to find sufficient initial evidence
determined by at least two evidences, including and not limited to information
or data that is spoken, sent and received or digital evidences, the Corruption
Eradication Commission also can request information from the bank about the
financial condition of the suspect (without permission from Indonesian Central
Bank), tapping / recording conversations, do not need permission to examine
state officials and others. However, the Corruption Eradication Commission also
has authority limits in carrying out law enforcement, including those listed in
Article 11 of constitutions No. 30 of
2002 about Corruption Eradication Commission which states:
In carrying out the tasks referred to in Article 6 letter
c, the Corruption Eradication Commission has the authority to carry out
investigations and prosecution of corruption that:
a. Involving
law enforcement officials, state administrators, and others related to criminal
acts of corruption committed by law enforcement officials or state
administrators;
b. Achieving the public attention regarding of such
corruptions issue ; and / or
c. Regarding state losses of at least Rp.
1,000,000,000.00 (one billion rupiah).[2]
Furthermore, regarding the definition of state
administrators are listed in constitution No. 28 of 1999 about the
Implementation of Clean and Free of Corruption, Collusion and Nepotism in
Article 2 point 2 it is stated that state administrators include State
Officials at the State High Institutions. Corruption involving state officials
such as politicians to judges and law enforcement officials confirms that
corruption in Indonesia is a concerning reality because it threatens the
establishment of a country, corruption as a chronic cancer is not only impedes the
countries economic recovery, but also a joint destroyer of law enforcement in
this country.
The democratic system and law enforcement need to pay
attention to the orientation of the balanced of interest among the three
pillars, which is the Society, State and Law Enforcer whose existence of the
pillar has the function of checks and balances to obtain the final result in
the form of fair and true law enforcement.
The purpose of law enforcement by The Corruption
Eradication Commission is not to cause dis-integration among law enforcement
agencies, but how to maximize non-discriminatory law enforcement as already
mention above by the aouthor. In addition, the independence of the law
enforcement process is an imperative discourse. It must be acknowledged that it
will be difficult for the Indonesian National Police and the Indonesian Prosecutor's
to maximize the eradication of corruption, as long as independence in the
context of limits is still in the subordinate status of the highest executive
power, which will give the impression of permissive authoritarian power.
Disturbances, attacks and interventions against law enforcement institutions
are very strong. The pattern of intervention was packaged in the form of
quasi-independence, such as the placement of law enforcement agencies that
became power sub-ordinations, all of which gave direction, as if there was
justification behind the principle of legality of subordination.
Furthermore, the affirmation of the pattern of
intervention has actually been reminded and seen at the Seventh United Nations
Congress on "Prevention of Crime and Treatment of Offenders" in Milan
in 1985, it has discussed a theme which is not classic, namely "The New
Dimension of Crime in the Context of Development" . In one of the results
of the discussion about this "new dimension" that was highlighted was
about the occurrence and increasing "abuse of power". This abuse of
power involves "upper economic class" ("established society")
and "upper power class" parties (high state organizers) who make
conspiracies and aim for economic interests, even political interests of
certain groups, so that the pretext of supporting corruption eradication is
merely an institutional symbolic movements, with the ultimate goal of finally
weakening the law enforcement.
In this paper the author will discuss the case that was
once handled by the Corruption Eradication Commission where the suspect was an
official of a high state institution and a High Judge named M. Akil Muhtar.
Corruption carried out by M. Akil Muhtar and his colleagues included the
category of political corruption, which is a form of abuse of power by
manipulating policies, institutions, and rules or procedures, related to the
allocation of resources and financing, carried out by policy makers to continue
to maintain power, status and his wealth.
II.
MAIN DISCUSSION
A.
Brief Case Analysis
M.
Akil Muhtar as the Head of the Constitutional Court, during the period of 2010
to 2013 received a sum of more than Rp. 57 billion which was allegedly obtained
in connection with bribery in resolving disputes in regional elections in the
Constitutional Court. Most of the receipts of bribes use a company account
called “CV Ratu Samagat” which was established in 2010. The owner and
management of the company is noted to be the son and wife of Akil Muchtar. The
establishment of the company should be suspected as an attempt to deceive the
detection of suspicious financial transactions by the bank or financial law
authority, considering that by using the name of the company an account was
made and the account was used to receive deposits from third parties with
inclusion of businesses such as buying and selling palm oil, heavy equipment
and so on. For the transaction, the Investigators successfully proved most of
the transactions was not an actual transaction but a transaction related to the
dispute resolution of election case handled by M. Akil Muhtar.
B. Case Management
Started with an anonymous public complaint related to
alleged bribery involving a judge who served in a high state institution where
the judge received a bribe of money related to the dispute over Regional Head
Election, then the complaint was received by the Corruption Eradication
Commission through the KWS (KPK Whistleblower System) mechanism, with this
facility, an informant can report a suspected criminal act of corruption and
the confidentiality of the informants is guaranteed from the possibility of
disclosure of his or her identity to the public. In addition, through this
facility an informant can also actively play a role and monitor the progress of
reports submitted by opening a secret communication box without the need to
worry about his identity being known to others.
After being received and carried out a review of the
complaint, the Corruption Eradication Commission immediately formed an
investigation team and carried out interception of telephone conversations and
conducted surveillance measures against a Judge and Chairperson of the
Constitutional Court who later became known as Akil Mochtar and those who
related and affiliated with him. Then on the night of October 2, 2013 the Corruption
Eradication Commission conducted an red handed operation against Akil Mochtar
at his residence and secured banknotes in the form of US dollars, Singapore
dollars and Rupiahs which were estimated to be worth billions of rupiahs.
The Corruption Eradication Commission gave multiple
accusations to Akil Mochtar, namely being charged with the Corruption
Eradication Act and the Money Laundering Crime Act. Akil Mochtar was thrown
into prison with demands for life imprisonment, a fine of Rp10 billion, and
revocation of the right to be elected and elected. And on February 23, 2015,
the Judge at the Supreme Court also sentenced him to life imprisonment and a
fine of Rp10 billion.
C. Challenges of the Corruption Eradication Commission
The Corruption Eradication Commission in its efforts to
eradicate corruption in Indonesia always put forward a case of red handed operations
where in 2018 the Corruption Eradication Commission succeeded in registering
168 bribery cases which were revealed beginning with the interception / tapping
stage in the investigation until the case was rolling and processed into prosecutions
and judges decisions at the trial. Ironically, in bribery cases it always
involves state officials / organizers so that various efforts continue to be
made by those who have an interest in amputating Corruption Eradication
Commission’s authority, by carrying out political pressure, with varied
patterns and methods. Through the system pattern, this has a comprehensive
meaning, especially if this system approach is associated with the role of
state institutions, such as the People Council’s of Indonesian Republic, which
is very decisive as one of the state institutions in the final regulatory process
to eradicate corruption.
III.
CONCLUSION
First, a fair criticism from the community acts as a
pillar of monitoring to control the Corruption Eradication Commission’s
institutional performance. the Corruption Eradication Commission was sharply
highlighted by the House of Representatives of Indonesian Republic regarding the
acts of forced effort, such as wiretapping, on the other hand the Corruption
Eradication Commission received appreciation, when the Corruption Eradication
Commission controversy related to red handed operations against members of the
Executive, Judiciary, Legislative and State Institutions, therefore the Corruption
Eradication Commission’s process and front-gate investigations including
wiretapping are essential.
Second, the Corruption Eradication Commission Law
Revision at the initiative of the House of Representatives of Indonesian
Republic will influence the existence of the Corruption Eradication Commission as
a law enforcer, the concerning output is not a reinforcement but an amputation
of institutional authority. Special authority is indeed the institutional basis
of the Corruption Eradication Commission, which is stated on Article 44 of the
Corruption Eradication Commission Law, which places the Corruption Eradication
Commission in the investigation stage is authorized to obtain sufficient
preliminary evidence with a minimum of 2 evidence, and this investigation
process as the Corruption Eradication Commission with wiretapping authority can
develop 2 evidences that was followed up with Silent Red Handed Operations or
commonly known as OTT. Tapping carried out by the Corruption Eradication
Commission is based on a “Legal by Special Regulated”, which means it is still
has an obligation to evaluate the actions, and certainly different from tapping
based on “Legal by Court Orders” with the obligation to require a Court Permit
to do so. The act of intercepting calls and wiretapping by Corruption
Eradication Commission It is justified because of the special institutions and
special authorities as an extension and justification of the “clear and present
danger” principle of corruption are very concerning and become the authority of
the Corruption Eradication Commission. Tapping process with the permission of
the Court is not necessary for the Corruption Eradication Commission because
the tapping process carried out by the Corruption Eradication Commission is
based on Legal by Special Regulated, not Legal by Court Order which is
different from its justification regime.
Third, the House differentiation attitude which would
weaken the special authority of the Corruption Eradication Commission as
institutions is very decisive in terms of the Tapping issue which must be
court-approved (Article 14 RUU), even though it is known that as a special
institution with special authority, the Corruption Eradication Commission’s
wiretapping authority is based on Legal by Special Regulated based on audits
and evaluations of wiretapping, rather than Court Permits. Issuance of SP3
(Article 42), even though the Corruption Eradication Commission has the
authority to terminate the Investigation considering the Corruption Eradication
Commission’s authority to find preliminary evidence is sufficient at the stage
of pre-investigation, not post-investigation. Confiscation with sufficient
preliminary evidence at the stage of pre-investigation (Article 49), even
though sufficient preliminary evidence that is the authority of the Corruption
Eradication Commission is precisely at the stage of the pre-investigation. The
obligation of the Corruption Eradication Commission to report to the Indonesian
National Police and the General Prosecutors Office, if the Corruption Eradication
Commission handles the pre-investigation first (Article 52 paragraph 2), the Corruption
Eradication Commission is tasked as a Coordination and Supervision of other law
enforcement agencies. The prosecution was handed over to the Prosecutor at the
Prosecutor's Office (Article 53 paragraph 1) while the Corruption Eradication
Commission in the enforcement process was an integrated institution with the
One-Roof System contained in the process of pre-investigation, post-investigation
and Prosecution. The assumed duration of the Corruption Eradication Commission is only 12 years (Article 73), even though assembly
of the people's deliberations of Indonesian Republic
Decree No. VIII In 2001, the mandate for the
establishment of the Corruption Eradication Commission was not given the
duration of the validity period. These articles indeed lead to the attitude of
reducing and amputating the authority of the Corruption Eradication Commission.
Fourth, a revision of the Corruption Eradication
Commission Law requires discussion with patterns of synchronization and
harmonization with the related Draft Laws, such as Draft Criminal Code,
Criminal Procedure Code, Corruption, Asset Deprivation, Money Laundering, etc. A
partial revision of Corruption Eradication Commission law are certainly seems
to be a negative goal towards the impact of the Corruption Eradication
Commission.
Fifth, thus, without any synchronization and harmonization
between the Draft on Corruption Eradication Commission Law with the other Draft
Laws (Criminal Code, Criminal Procedure Code, Corruption, Money Laundering,
Asset Deprivation and others) whose discussion was not carried out
simultaneously and parallel, it was concerned indeed the main objective is to
weaken the Corruption Eradication Commission’s. The experience of the Corruption
Eradication Commission Law Revision in June 2015 as well as the provisions on
the procedure for wiretapping with the Court's permission which then proved the
resistance of the public to the will of reinforcement which impacted weakening
authority of Corruption Eradication Commission itself.
The will to implement the Due Process of Law model often
experiences obstacles, because the potential barrier to eradicating corruption
is the tight intervention of power and political interest in the law
enforcement process, so that efforts to minimize corruption will become
stagnant. Behavior of power must mean adigium: Politics are adopted by the
Laws, not Laws to the Politics.
