The Constitutional Court judged that Dewas is not a judicial institution so that it is not authorized to give permission for pro justitia actions, such as wiretapping, searches and confiscation.
By
SUSANA RITA KUMALASANTI/DIAN DEWI PURNAMASARI
·4 minutes read
The Constitutional Court rejected a petition for a judicial review of the Corruption Eradication Commission (KPK) Law. However, the Constitutional Court stated that the KPK did not need to ask the Supervisory Board for permission before it carried out wiretapping and searches.
JAKARTA, KOMPAS — The Constitutional Court, Tuesday (4/5/2021), rejected the petition for the judicial review of Law No. 19 of 2019 on the Corruption Eradication Commission. The judicial review was proposed, among others, by a number of former KPK leaders, namely Agus Rahardjo, Laode M. Syarif and Saut Situmorang.
However, the Constitutional Court granted part of the petition for judicial review of a number of norms in the Law, especially regarding permits for wiretapping, searches and confiscation.
The petition that was partially granted was a case filed by Fathul Wahid (Rector of the Islamic University of Indonesia/UII) along with a number of lecturers at the UII School of Law.
The Constitutional Court judged that Dewas is not a judicial institution so that it is not authorized to give permission for pro justitia actions, such as wiretapping, searches and confiscation.
In its consideration, the Constitutional Court said that the KPK no longer needed to ask the Supervisory Board (Dewas) for permission to conduct wiretapping, searches and confiscations. The Constitutional Court judged that Dewas is not a judicial institution so that it is not authorized to give permission for pro justitia actions, such as wiretapping, searches and confiscation.
The KPK can simply notify Dewas in no more than 14 working days after it is carried out. This is to prevent abuse of power so that the use of pro justitia authority is closely monitored.
"The KPK\'s obligation to get permission from the Supervisory Board in conducting wiretapping is not only a form of interference with law enforcement officials by an institution that carries out its function outside of law enforcement, but more than that it is a real form of overlapping authority in law enforcement, particularly pro justitia authority that should only be owned by law enforcement agencies or officers,” said constitutional justice Aswanto when reading out the Constitutional Court\'s considerations.
In Indonesia, the pro justitia authority belongs only to the police, prosecutors, courts and the KPK.
However, the Constitutional Court agreed that wiretapping related to a person\'s privacy rights needs to be closely monitored. Wiretapping by the KPK must not be used without supervision.
In order to avoid abuse of the authority of wiretapping, confiscation, and searches, the Constitutional Court considered that the KPK needs to notify the action no later than 14 working days after it is carried out. Special for searches, the provisions stipulated in Law No. 8/1981 on the Criminal Law Procedures Code (KUHAP), which requires the permission of the head of the local district court, apply. However, in urgent circumstances, a search can be carried out first and then report it for approval.
SP3
With regard to the authority of the KPK in issuing investigation termination warrants (SP3) for cases that have not been completed within two years [Article 40 Paragraph (1) of Law No. 19/2019], the Constitutional Court has changed its view. In the previous verdict, the Constitutional Court was of the opinion that the KPK which did not have the authority to issue SP3 was a constitutional matter.
"However, taking into account the empirical facts at the KPK, in many cases where the perpetrators have been named as suspects, but their cases have not been transferred to the court, it causes legal uncertainty. Therefore, the Constitutional Court can understand the existence of Article 40 of Law No. 19/2019 which gives discretion to the KPK to issue SP3," said Enny Nurbaningsih, a constitutional justice. (ANA/DEA)