The House’s Anti-KPK Tactics
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It is saddening to read the main news of Kompas on Saturday (10/6): "KPK Being Exterminated". No! The House of Representatives (DPR) Inquiry Committee on the Corruption Eradication Commission (KPK) argues that it does not intend to weaken or dissolve the KPK, but raised changes in the position of a number factions (except those of the Democratic Party, Prosperous Justice Party/PKS and National Awakening Party/PKB) related to the right of inquiry. Obviously, this raises doubts over the statement.
August Bequai in his book, White-Collar Crime: A 20th-Century Crisis (1978), emphasized that the crisis of the 20th century was the institutionalization of white-collar crime to cover bureaucratic politicians in nearly all sectors of politics. This phenomenon is what has triggered a kind of “political revenge” by lawmakers against law enforcement agencies in Indonesia, as has been repeatedly experienced by the KPK.
We have observed the types of institutional intervention made on the pretext of regulatory legalities. For example, through the revision of the KPK Law for strengthening the agency which, in actuality, weakens the KPK by removing its prosecutorial authority, revoking its wire-tapping authority, and restricting its authority to stop an investigation/prosecution.
Also, the executors of intimidation and terror against KPK investigators, such as Novel Baswedan, have not been revealed thus far, let alone their mastermind. All are forms of intervention and push back from those who feel affected by the impacts of KPK law enforcement.
E-ID card case
The revelation of the electronic ID card case, which allegedly involves House members and other political actors has given rise to a new dispute between the DPR and the KPK. The ban on the House Speaker sparked strong reactions from the House leadership, which developed further with the naming of Miryam S Haryani and Markus Nari as suspects, accused of giving false information in court and attempting to obstruct the pro justitia process.
The polemic of the House Speaker\'s banning and the strong reactions of the House leadership led to its intention and approval of establishing the House inquiry committee into the KPK, even though this was opposed by the public and followed by a number of irregularities, including a walkout by several lawmakers from different factions. The formation of the special right of inquiry committee went ahead, even though the legality of its formal establishment is disputed.
What is the relevance of the existence of the inquiry committee on the KPK? Those matters affected include the KPK’s performance in investigating a suspect member of the House, Miryam Haryani, and the issue of the House’s demand for the recording of Miryam’s interrogation. All will become several separate legal notes, whether it is related to the mechanism and substance of the special right of inquiry committee or not.
First, from the procedural side, the constitutional legality for the right of inquiry belongs to the DPR, namely the right of the House to investigate the implementation of a law and/or the government policy related to important, strategic and broad-based issues that it believes are contrary to legislation.
The mechanism issue of the requirements for this special committee is an interpretation of Paragraph 2, Article 201 of Law No. 17 of 2014 on MD3 (MPR, DPR, DPD, DPRD), which states, "In case the DPR receives a proposed right of inquiry as referred to in Paragraph 1, the DPR is to establish a special committee called the inquiry committee with its membership consisting of elements of all factions of the DPR."
In the substance of its interdisciplinary approach and interdisciplinary legal construction, especially the facets of criminal law and constitutional law, the meaning of "all elements of factions of DPR" has to be defined as a legal certainty which qualifies the statute lex scripta (written law) and therefore has to be interpreted according to lex stricta (strict interpretation) and lex certa (clear and understandable; cannot be meant otherwise in multiple interpretations).
Therefore, "elements of all factions of the DPR" must mean elements of all 10 factions as a legal requirement for the establishment of the special inquiry committee. By its very inability to meet this requirement, it has to be interpreted that the formation of the inquiry committee contains a legal flaw.
Second, in that the DPR argued that the formation of the inquiry committee was in accordance with the quorum of the House Code of Conduct, the MD3 Law article concerning the formation of a special committee does not contain a quorum mechanism. If interpreted by force a contrario, this quorum must be interpreted to mean elements of the 10 factions as well, not just participation by existing factions.
The interpretation of the quorum in the context of the House Code of Conduct must be in accordance with legal instruments and cannot be contrary to higher regulations, as in the hierarchical principle of lex superiori derogat legi inferiori, so that lower regulatory provisions (the House Code of Conduct) cannot alter or supersede a higher legislation (Law No. 17/2014). A forced interpretation on quorum based on the House Code of Conduct contradicts the principle of lex superiori derogat legi inferiori.
The problem of interpreting the meaning of "elements of all factions of the DPR" stated in Paragraph 2, Article 201 of Law No. 17/2014, or the issue of the quorum based on the House Code of Conduct is a fact pointing to the legally flawed formation of the special inquiry committee. This, in turn, is the result of a conduct that partly or wholly shows the absence of legality, without the need of a verdict by the courts or other competent government institutions, or ex tunc (from the outset) dissolution.
Third, in relation to the presence or the absence of the KPK at the House inquiry forum, an institutional comparison of the forum is akin to the House hearings (RDP) between the Supreme Court and the DPR. There has never been any hearing with the KPK because the Supreme Court has rejected the opinions of the House, which has actually made opinions regarding judicial technicalities on several cases handled by the Supreme Court. Therefore, the Supreme Court has never again held an RDP.
Subpoena authority
The House has the authority to issue subpoenas as forced summons against legal entities and/or civilians in accordance with Article 73 of Law No. 17/2014 on MD3, and disregarding the summons (three times in a row) allows a maximum sanction of 30 days, but this law does not provide arrangements for subpoenaing or detaining state officials and/or government officials. It may thus be understood that the procedures, or mechanisms and sanctions, or their absence in the framework of the House’s right of inquiry, have no legal or political impact on state institutions, including on the KPK as an independent state institution.
Interpreting Article 74 of Law No. 17/2014, the right of inquiry does not have any executorial fiat, either in influencing or sanctioning the KPK, whether legally or by political administration. The nature of its non-executorial fiat is based on the understanding that the first principle of Law No. 17/2014 related to the right of inquiry is the supervisory function of the House in investigating the implementation of laws or government policies concerning crucial, strategic and wide-ranging issues that are suspected of being contrary to legislation. However, the KPK is not in a position to be either a subject or an object of such investigation.
The second principle, that the results of the special inquiry committee are restricted to a recommendation to the President, means that this recommendation does not have any power of executorial fiat upon the KPK.
The third principle is that the administrative system based on the executive power of the president does not authorize the DPR to determine the existence or status of state institutions – ministries and non-ministries – or their officials upon the issuance of a recommendation by the special inquiry committee. Apparently, the will of the inquiry committee is more focused on individual powers or groups with vested interests, and not in representing the DPR as a state institution, because of its legal inconsistency and incomplete factional representation in proposing the right of inquiry itself.
Fourth, in terms of legal substance, in an understanding of the criminal justice system – the pro justitia investigation process – the KPK has full authority to refuse to release Miryam’s recording to the DPR under the pretext that the right of inquiry, and the transparency of the pro justitia process can only be carried out under judicial order in the interest of justice.
The coercive intent of the DPR under the right of inquiry to investigate the KPK is a form of obstruction of justice and contempt ex facie (out of court) under the criminal justice system, and which can be suspected of "preventing", "obstructing" or "perverting" the course of the KPK\'s investigation into the massive e-ID case.
In considering this obstruction of justice, Article 21 of the Law on Eradication of Criminal Acts of Corruption places criminal sanctions on acts that obstruct the pro-justitia process. In the case that the DPR needed to investigate the KPK on budgetary administration and institutional management, it should have been able to conduct this simply at the level of a House hearing. The KPK leadership, during its initial era, turned down a House right of inquiry on a pro justitia case regarding the sale of Pertamina\'s Very Large Crude Carrier (VLCC), and for this rejection no sanctions or other impacts were made against the KPK.
The due process of law over this act of massive institutional corruption should not be interpreted by the DPR under the cloak of strengthening the institution of the KPK, which is instead an a contrario permissive for the weakening and dissolution of the KPK!
INDRIYANTO SENO ADJI
Professor of Criminal Law; Lecturer of the UI Graduate Program in Legal Studies; Former Vice Chairman of the KPK
