"New Normal" KPK

Kompas/Wawan H Prabowo

President Joko Widodo listened to the speech of the Chairman of the Corruption Eradication Commission (KPK) Firli Bahuri while attending the National Action for Corruption Prevention (ANPK) virtually, Wednesday (26/8/2020).

The idea of a corruption eradication agency, such as the Corruption Eradication Commission (KPK), sets strong intention if it is accompanied by law enforcement efforts and support for cooperation, as well as strong appreciation with the community.

The KPK, however, has changed with new commissioners and a new law. The KPK currently seems not to have a strong support base as trust and performance wane.

An analysis of the Indonesia Corruption Watch (ICW) shows that the work and performance of the KPK has decreased significantly. Maybe it is too early, but it is very reasonable because the KPK seems to be "cool" with a variety of corrupt practices and other corrupt diseases in this country. The KPK is even busier fending off attacks on its chairman whose credibility is questionable, up to the staffing that is fully subordinated to the civilian bureaucracy.

Actually, this signal was disclosed by William Liddle (Kompas, 19/10/2019) sometime after the revision of the KPK Law, "my temporary conclusion is that the anticorruption force needs to find a new strategy without expecting the future role of the KPK or adequate assistance from the Jokowi administration". I confirm this statement. It is no longer a temporary conclusion, it seems, it has become a proposition that must be explored further.

Also read: Combating Corruption Needs Consistency

Simply put, the KPK is entering the "new normal" phase. The past that should have been normal and expected by the public seems to have been abandoned by the KPK. The KPK is marching in a new direction away from the philosophy of its establishment. The KPK is now working with a new paradigm that corruption is not an extraordinary crime, as argued by the legislators cum politicians when they base the logic of amending the KPK Law. The acclamation commissioners give their support for the amendment to the KPK Law "new format".

KPK\'s new direction

In fact, the decline in performance at the beginning of the transition was very likely due to the institutional construction factor and the KPK commissioners themselves. The characteristic of independent state institutions used in several other countries is the staggered system.

This system, according to Funk and Seamon (2001) or Gordon and Milakovich (2001), is not to replace commissioners as a whole, but only partially and be carried out in stages. The aim, in addition to maintaining the continuity of the work of independent state institutions, is also to avoid the possibility of being controlled by political interests, especially the domination of political interests in the government and the House of Representatives.

However, Indonesia does not use that. In our country, the KPK always gets a replacement of commissioners at once. It just a coincidence that this time there is one who remains a commissioner at the KPK. The remaining one is not a commissioner who is convincing from the start or with a classy track record. At the same time there are no specific rules for continuity of work.

KOMPAS/PRAYOGI DWI SULISTYO

The Corruption Eradication Commission led by KPK Deputy Chairman Nawawi Pomolango (center) held a press conference on the activities of the arrest of the East Kutai Regent, East Kalimantan, Ismunandar at the KPK Building, Jakarta, Friday (3/7/2020).

The tiered replacement rules are actually needed to minimize political interests in institutions such as the KPK. However, once again there are no adequate rules so that it seems natural that the KPK has been stuttered at the beginning of the leadership because of the adjustment period.

What is interesting is that this stuttering is usually covered by the internal performance of employees and law enforcers within the KPK. They are the ones who connect the transition process between the leadership of the commissioners as long as they receive the support of the commissioners. The words "as long as it has the support of the commissioner" should be given a bold line because this time it looks like it does not exist either.

Employees at the KPK are willing to continue working, but do not receive adequate support from the commissioners and the new constellation of the KPK Law which changes the construction of work implementation and monitoring of performance. This means that this inherent defect of the KPK, coupled with legal factors and the seriousness of the commissioner\'s performance, becomes a performance disaster.

Also read: Consistency Alone Is Not Enough

No matter how serious the KPK denies this, it is impossible to forget that in this republic "even walls have ears". The serious pattern of KPK leadership in eradicating corruption blows far from the Kuningan building. The map of support from the commissioners, who have a serious indication of the eradication of corruption that is minimal, or which is part of the problem itself, could have been seen.

This political phenomenon at that time was not as analogous as it is now. There is a tremendous force pushing it.

Second, too tight political control in the selection process. We all understand that political power in the president is the starting point, and political power in the DPR is ultimately on the fit and proper test. The research I did (2012), or with Iwan Satriawan and Dwi Satya (2009), to some extent illustrates this. The process of political intervention through elections is very, very fast. However, something is different. This political phenomenon at that time was not as analogous as it is now. There is a tremendous force pushing it.

In the past, it was relatively able to survive because of the political push to defuse the KPK, often dealt with rational choices of defense by the president. It is noted that the 10 years of President SBY\'s leadership quite often intervened in rescue and gave "breaths" to the KPK so that it could survive so that political balance and public encouragement were still visible in the choice of work for commissioners, including protection for them.

Now, that does not happen. The president and the DPR appear to have worked hand in hand to encourage the KPK to become a "new normal". The initial logic can be found, for example, by "accustoming" (ordinary) the criminal act of corruption to move away from the original paradigm that corruption is "extraordinary".

This logic flows in the same direction as the KPK, which is a government institution, is no longer independent, and regulations are quickly made to enable it to have a foundation. The public is simply entertained by the language, "an independent government institution in carrying out its duties", of course this will become a euphemism in the face of the intervention that is easily suspected of burdening the KPK through the new KPK format.

Backflow via judicial review

The changing factors all started in 2019. That backflow changes everything. Hence, thinking about the backflow for the KPK is at least absolutely related to the post-revision KPK Law.

Currently, the law is still being examined in the judicial review process at the Constitutional Court (MK). We all still have to wait for the results. However, it seems impossible that the Constitutional Court does not accept the reasons for the petition that are so clear about the flaws in the drafting of the KPK Law and the messy substance and implications that actually pushes the KPK to a "new normal" condition because there are so many formal violations in this law.

First, the 1945 Constitution provides five stages of the law: submission, discussion, approval, ratification and promulgation. In the submission, there is no community participation, it is continued at the approval and ratification stages. And this is done together with the president.

KOMPAS/PRAYOGI DWI SULISTYO

Corruption Eradication Commission chairman Firli Bahuri (center, foreground) attends an ethics hearing with the KPK Supervisory Board on Tuesday (25/8/2020) in Jakarta. Firli was questioned for allegedly violating the code of ethics by chartering a helicopter for personal use.

The President immediately signed the presidential letter in only three days, whereas the time given was 60 days. Is it because that is the president\'s job so far? Usually it takes a long time because the president forms a government problem inventory list (DIM) by inviting many parties and involving experts.

Second, the decisions was made when the presence of DPR members in the room was only 80-100 people. In formal terms, this should be a serious violation of the drafting of laws and regulations. The agreement requires physical attendance and not in presence on paper. Referring to the Constitutional Court Decision No. 27/PUU-VII /2009, the same thing is clearly a formal violation.

Third, violations of the people\'s sovereignty as required by the 1945 Constitution. Article 1 Paragraph (2) states this. The implication of this concept is people\'s sovereignty, what the people want should be what the president and DPR do.

Fourth, it must be seen whether there is a formal violation of the legal politics of the president and ministers representing the legislative system. Article 20 Paragraph (2) clearly states that this is the president\'s domain in the joint discussion with the DPR. The minister as assistant is only representative. This means that what the president outlines must be the substance that the minister strives for.

The president himself has views and positions that the assigned minister should fight for. The President asked for the points he wanted to be discussed and that it becomes mandatory for the minister to fight for them. Can ministers shift? Only in the position of the president\'s approval, a shift can occur. It is interesting to question the extent of this shift.

The minister assigned should report these developments to the president to be used as material for the president to consider making an agreement.

When it comes to drafting good legislation, the stages of discussion and approval should be separated. Discussion is a process in which a take and give may occur, which allows a shift in the substance of the law as outlined by the president to the minister. The minister assigned should report these developments to the president to be used as material for the president to consider making an agreement. However, what happens is that the discussions that take place are united with agreement.

Is it true that the president approves or is it only the minister? Moreover, if this is related to the president who is not signing the law. The president should explain why the president did not sign it, because it shows a different attitude from the approval made by the minister. Whether it is true that the president is different from his ministers will prove whether the president\'s unwillingness to sign the KPK Law is not just a political play.

In the midst of flaws of the formal law on the formulation of the KPK Law, how the Constitutional Court will conclude is interesting to wait. The Constitutional Court will determine whether a reverse flow of corruption eradication can occur via the KPK or whether the Constitutional Court will continue it. Also what is the reason.

Will the KPK return to normal? It seems really worth fighting in that direction. Expecting the Constitutional Court or while assessing a new way to eradicate corruption without including the KPK as an important variable, now I choose that method. Thinking of building corruption eradication without expecting much from the KPK while waiting for the seriousness of the upcoming national leadership. Hopefully all of them will not play "waiting for godot" (something that isn\'t clear to the end).

ZAINAL ARIFIN MOCHTAR, Lecturer of Law Studies and Researcher at the Center for Anticorruption Studies, School of Law, Gadjah Mada University, Yogyakarta