Death Sentence for KPK
In reviewing the formal substance, MK based its argumentation on loose footing.
Reading attentively the Constitutional Court’s (MK) verdict regarding the judicial review petitioned over the revised KPK Law, we seem to be witnessing it being the final touch in sealing a "perfect crime".
It was performed with a kind of hyper-criminality as sociologist Jean Baudrillard would refer to – it is when a crime unfolds in such a way, under control of oligarchic power with sophisticated crime organization in top-notch political games. MK “perfected” the play in affront to law, morality, commonsense and cultural values.
The MK’s verdicts should not be seen as a political product separated from the roles of DPR [House of Representatives] and President in the legislation of the new Corruption Eradication Commission (KPK) Law. It looked like an orchestra performing a melodious rendition of "KPK may live but corruption eradication must die".
Why is it easy to read that the MK’s verdict is only a stamp of approval on a prevalent crime? Re-exploring MK’s textual verdict will expose it.
There were seven points read out when delivery the verdict in the judicial review, which was made up of two main substances -- formal and material review.
Also read: "New Normal" KPK
The formal review is to screen the procedure of legal drafting, while the material review is to look into the substance of the law.
The seven points show how the MK was "not serious" about the existing constitutionality problems.
MK’s formal review
In reviewing the formal substance, MK based its argumentation on loose footing. While reading the verdicts, they looked like a group of amateur "bamboo procureurs" who were finding justification in order to evade the truth.
The Constitutional Court’s panel of judges presided over by Aswanto (center) holds a hearing on the judicial review of Legislative Bodies Law at the court in Jakarta on 21 Jan. 2020. The plaintiff claimed the lawmaking process breached the prevailing procedures stipulated in the House of Representatives rules. The law was neither listed in the National Legislative Program (Prolegnas) 2015-2019 nor the Priority Prolegnas 2019.
It is evident in the MK’s rulings No. 79/PUU-VII/2019, which is the heart of the MK\'s verdict of the formal review, while the petition for other formal reviews was rejected with the reasoning mentioned in its rulings.
First, after rejecting the request for provision, the MK immediately addressed the formal review, arguing that the law revision was mandated in the national legislation program (prolegnas) and that it did not matter how much time the drafting of the law would take. It also said the law had been drafted by taking account public participation and aspiration arising from discussions in universities as well as views of experts.
MK seemed to take "existence" for granted, without bothering to find out the "substance" of public participation and aspirations. Constitutionality was seen as merely a matter of formality whether something existed or not. Did MK know what happened in the discussions at several universities? Was it an endorsement or rejection? Was MK not aware about the symptom of bad participation that would be carried out only to seek inputs from those who harbored the same political views with DPR over legislation process?
Also read: Megawati Disavows Members amid Bribery Allegations
At this point, it is interesting to point to what Wahiduddin Adams -- the only MK’s judge to have voiced dissenting opinion -- stated that those loopholes were enough to provide justification that the new KPK Law carried serious constitutional and morality defects. It was the realm of morality that the other eight judges hardly paid any attention to.
How comes MK did not see it as a parameter the huge waves of rallies that cost the lives of a number of students?
In relation to public participation, MK showed blatant disrespect to people’s aspirations. In its verdict, it said that mass demonstrations did not affect the validity of law formation. How comes MK did not see it as a parameter the huge waves of rallies that cost the lives of a number of students?
MK should have learned from the President’s move to suspend the deliberation of criminal code drafts (RUU KUHP), with public aspiration having been taken as consideration. Why did the KPK bill proceed at that time? In fact, the aspirations were relatively the same, and even resulted in casualties. Why was the criminal code bill suspended but the KPK bill was not?
Why was MK so ignorant about simple concept that aspiration and participation are integral in legislation process.
There being aspiration and participation were taken only as the pretext to justify what was becoming their interests, instead of being valuable inputs to help achieve the goal.
/https%3A%2F%2Fkompas.id%2Fwp-content%2Fuploads%2F2020%2F07%2Fd5b42083-df39-40e6-97d0-8584b8661145_jpg.jpg){kind=logo}
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).
Second, MK seemed to lean toward a "baseless" approach when being confronted with the petitioners’ allegations that the academic text (NA) was fictitious. MK found itself bound too obsessively into interpreting the meaning of “fictitious” it turned to dictionary for explanation. It neglected to look deeper into the fact that the existing academic text was outdated, incompatible with the existing legal material for the draft. It was simply resting its case on the academic text.
While MK refuted it being fictitious, the academic text was actually a "make-up" because there was a gaping mismatch between the substance of the formulated law and the draft in the academic text.
In the context of legal politics, academic text is one of the most valid guiding and measuring tools for legal improvement. Was it truly a message about strengthening KPK or was it a ploy of domesticating KPK? Without the need to go deeper into the substance of the academic text, it should have been easy to recognize whether seriously or not the academic text was made. Had MK adopted the viewpoint of constitutional morality a little better, it should have been easy to see the seriousness of the academic text in terms of state law politics in the ongoing legislation.
Also read: Bribe Money for Local Elections
Third, the stance of the President and DPR in each of the stages of legislation. If we look at the entirety of the stages, we find a process may round up unnaturally too fast.
Even a jointly deliberated and approved bill may end up in the rejection by the President to sign its ratification. Surprisingly, MK was not intrigued to know more about such a possibility in the case of the KPK law revision. In fact, it was crucial in the presentation of the formal review in regard to the compliance with the stages of legislation.
Material review
As previously predicted, the MK appeared as if it was just intending to "entertain" the public when it gave in to several points of objections put forward by the petitioners. However, they were not substantially helpful to address the fundamental problems and implications of the law enactment.
MK did accept it, but in reality there would be no significant effect for KPK.
First, about the meaning of KPK as an institution. MK did accept it, but in reality there would be no significant effect for KPK. It was nothing more than a show of inconsistencies between the old law and the newly revised law. However, that did not change anything related to the independence of MK. Two judges "suddenly changed" their views about KPK as an independent state institution.
About MK’s decree No. 36/PUU-XIV/2017 regarding the right of DPR\'s inquiry into KPK, the two judges rejected it on the grounds that KPK was an independent state institution. Being independent, both in function and institution, KPK, they said, did not deserve to inquired by DPR. The right of inquiry is only applicable on the executive institution.
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.
That view was part of dissenting opinion by the two judges, who abruptly became proponents for KPK being under the executive. They proved to be inconsistent in dissenting opinion from the previous case.
Second, it was related to the investigation-termination warrant or SP3, the ruling of which would have no significant effect on anti-corruption law enforcement. On the other hand, it would bring implications that the issuance the SP3 seem easier, needing only two years since the issuance of the notification letter to begin an investigation (SPDP)
It is even simpler compared to SP3 in Criminal Law Procedures Code (KUHAP). Is this related to the decay in the spirit of anti-corruption and the notion of corruption being an extraordinary crime.
This also does not have any implication because it is unable to solve the current problem.
Third, it was the change of KPK employees status into civil servants. This also does not have any implication because it is unable to solve the current problem. Being claimed as a function transfer -- and raising suggestions that MK provide protection for KPK employees in the process of shifting their employment status – it evoked discretion on the existing regulations, so that again it would be unable to fully address the problem arising from imposed civic test which turned instead to become a tool of discrediting KPK employees who have shown extraordinary spirit in fighting corruption.
One crime, two casualties
The MK’s verdict actually shows how serious the constitutionality problem is, which MK has not approached prudently. Systematic criminalization of KPK is not viewed as threatening Indonesia\'s future, in contrary to the fact that it holds constitutional importance as MK pointed out in its previous verdicts.
Zainal Arifin Mochtar
The MK deliberately did not bring forth constitutional perspective, which should have been crucial.
In the criminalization of KPK this time around, it can be said that the perfect crime has seen double casualties – not only has constitutional morality died but the existence of the KPK is in peril.
Zainal Arifin Mochtar, Head of Administrative Law Department, Gadjah Mada University (UGM), Adviser to UGM’s PuKat Korupsi
(This article was translated by Musthofid).
