Tapping Does not Need Permission

KOMPAS/RADITYA HELABUMI

Corruption Eradication Commission (KPK) investigators display Rp 110 million in cash at a press conference on the results of a sting operation on bribery allegations related to a waterway project in Yogyakarta at the KPK building in South Jakarta on Aug. 20. (20/8/2019).

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.

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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.

Kompas/Wisnu Widiantoro

Constitutional Court chief judge Arief Hidayat (center) leads a panel of judges during a hearing for a judicial review of the Criminal Code article on treason, at the Constitutional Court in Jakarta on Wednesday (31/1). The court rejected a challenge to the article but demanded law enforcers be careful in using the article, so that it would not curb the freedom of expression.

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.

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"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.

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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.

KOMPAS/RADITYA HELABUMI

Chairman of the Corruption Eradication Commission (KPK) for the 2019-2023 period Firli Bahuri (from left to right), KPK deputy chairman Alexander Marwata, KPK deputy chairperson Lili Pintauli Siregar, KPK deputy chairman Nawawi Pomolango and KPK deputy chairman Nurul Ghfron read out the integrity pact during the office handover from KPK 2019-2023 leaders at the KPK building, Jakarta, Friday (20/12/2019). The KPK supervisory council, led by Tumpak Hatorangan and KPK chairman Firli Bahuri, has officially begun serving for the 2019-2023 period.

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.

Kompas/Heru Sri Kumoro

Former Secretary of the Supreme Court, Nurhadi (vest) left the Corruption Eradication Commission Building, Jakarta, Tuesday (2/6/2020). Nurhadi and Rezky are suspects of bribery or gratification cases related to handling cases in the Supreme Court with a value of around Rp 46 billion. They were arrested after almost four months before they were wanted.

"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)

This article was translated by Hyginus Hardoyo.