Compromised Ruling

Kompas/Handining

.

The Constitutional Court (MK) ruling on the right of inquiry of the House of Representatives (DPR) over the Corruption Eradication Commission (KPK) has been read out. The legal article under question was one on the inquiry right in the Law on Legislative Institutions (MD3) as to whether the House could conduct an inquiry into an institution that enforces the law outside the executive branch of government.

The MK ruling was not a unanimous one. Five judges said that the DPR could carry out an inquiry into the KPK, while four others said no. While reading the news in various media, several law professors in a WhatsApp group pointed out the gross strangeness in the court’s ruling. It could even be said at a certain point that the MK took steady steps and appeared dashing, but headed in the wrong direction.

Strange ruling

Within the limits of legal reasoning, this MK ruling can be said to be very strange. All of the MK\'s arguments in the verdict were constructed on shaky legs, namely in the context of the KPK having a partly executive function, following the simple logic that the KPK is an institution that functions as the police and prosecutor in the executive domain. Prosecutors and the police are part of the executive, ergo, the KPK is also carrying out an executive function. And because it carries out an executive function, it can be the object of DPR supervision in the form of an inquiry. As an object of DPR supervision, the DPR’s supervisory capacity covers the expanse of the KPK’s tasks and authority, in addition to its jurisdictional duties and authorities (investigation, interrogation and prosecution).

The logic of the MK ruling is clearly strange. First, there is a contradiction in their own view. The MK said that the entryway to viewing the KPK as the executive is because the commission handles corruption cases (investigation, interrogation and prosecution), as do prosecutors and the police. However, the MK later said that this was excluded from the scope of the DPR\'s supervision. This is clearly confusing! Because the KPK\'s executive nature is derived from equating the KPK with prosecutors and the police, along with its function to investigate, interrogate and prosecute, but then these functions are specifically excluded from the scope of the DPR\'s supervisory role.

Therefore, the question can be reversed: Which part of the KPK is permissible as a subject of the inquiry? To follow the MK’s logic, this would be anything aside from its functions of investigation, interrogation and prosecution.

To repeat the question: Which part, then, can be the subject of the inquiry? What are the limitations? Will they be in the investigation, examination and prosecution reports, or would they include details on its mechanism? Will the DPR be allowed to revise the way the KPK determines the suspects, for example? This way of thinking will later lead to "mutual claims". Or to gratify the determination, will the DPR be allowed to supervise all or part of its judicial function, which, according to the MK ruling, cannot be touched? Maybe the object that is deemed a part of the DPR\'s oversight is one which the KPK considers to be part of its judicial function. In other words, the ruling has had almost no major impact on settling the substance of the debate between the DPR and the KPK.

Second, the logic of equating the KPK with prosecutors and the police is, of course, mistaken if it is framed in the executive context. Prosecutors and the police have the closest connection with the executive branch if this is based on how their positions are filled. The Police Chief and Attorney General fall within the realm of executive elections. This is very different from the KPK, which is entirely independent and free from the influence of any government branch, especially the executive.

“Executive” here carries a special meaning because the logic behind the birth of this independent state institution is different from that of the prosecutors\' office and the police. This independent institution was born of distrust in the old institutions, especially the executive, so that is was made independent. The prosecutors\' office and the police were not born under such a condition. This serves to further clarify the fragility of the MK’s view behind equating the KPK and the executive function of the prosecutors\' office and the police.

Third, the MK seems to forget that it is not just the KPK, but that all independent state institutions have the combined flavor of the executive, the legislative and the judiciary. Therefore, how is it that only the KPK can be a subject of the inquiry right because of its executive function (excepting its judicial function), differentiating it from all other independent state institutions that execute many executive functions, such as the Financial Services Authority (OJK) and the Deposit Insurance Agency (LPS)? Will these institutions also be wholly subject to a DPR inquiry?

Fourth, this verdict is like "licking one’s own spit" (putting one’s foot in one’s mouth). In several of its previous verdicts, the MK stated the constitutional concept of the KPK: an independent state institution that possessed “constitutional importance”. It has even affirmed that on principle, the KPK is an independent state institution that is free from interference of any power and had the judicial authority to conduct investigations, interrogations and prosecution in its supervision and handling of corruption cases committed by other state institutions.

The question, then, is why does the MK suddenly seem to be neglecting the logic that has been built into its previous verdicts? Of course, I do not want to say that it is forbidden for the MK to change its mind. I also have no intention of declaring that the MK should not negate its previous rulings. Moreover, constitutionalism is believed to live and grow as in the concept of a “living Constitution”, in keeping with the evolving era. However, what is the MK’s explanation on these changes? Nothing at all! This is confusing. The MK should explain why it has adopted these views and why it has changed now. Why it has equated the KPK with the judiciary and it is now even including it among the executive.

Lately, the MK appears to have contracted a severe “alpha disease”. It is similar to the heated debate over expanding the meaning of an article in the Criminal Code on adultery. Several years earlier, the MK unanimously insisted that it was impermissible to expand the interpretation of the meaning of criminal regulations, but suddenly four judges stood up and claimed it was permissible to expand the meaning of Criminal Code article on adultery.

Therefore, we of the public who are still learning about the law will question these judges, which view is binding? The former one, or the current one? The most remarkable thing is that no explanation is forthcoming as to the reason for the change. Today, it is tempeh and tomorrow it is tofu, but apparently this is normal. Or is it possible that they were merely saying that they were just pragmatic judges of the law?

The way the MK has made such rulings draw together into a bigger question. Is the MK compromising in its rulings? It does not negate the views of the DPR politicians about the inquiry, but it still wants to look gallant by maintaining the judicial authority of the KPK to prevent its being interfered with. In reality, as written above, this approach simply perpetuates the dispute between the DPR and the KPK, especially about what is and is not subject to inquiry by the DPR.

Implications

We all understand that the MK ruling is binding. However, this ruling will raise no small implications and must be discussed from the outset, particularly as regards the implementation of the right of inquiry itself.

When judging the actual concept, basically, Article 20A, Paragraph 2 of the 1945 Constitution directly refers to the DPR’s right of inquiry, that "In performing its function, other than the rights as regulated in other articles of this Constitution, the DPR possesses the right of interpellation, the right of inquiry and the right of opinion".

Historical records show that the same logic exists in the Constitution of the Republic of the United States of Indonesia (UUD RIS) and the 1950 Provisional Constitution (UUDS). All actually allocate the logic of the inquiry right to the government alone. The debate has ensued because of Article 79, Paragraph 3 on the Law on Legislative Institutions, which contains the phrase, "the implementation of a regulation and/or government policy". Through its own ruling, the MK said the government\'s meaning included the executive function of the KPK. Therefore, in the end, a recommendation for improvement is issued that, if it is not executed, can instead be a doorway that leads to the right to the freedom of opinion.

Here the confusing implications manifest. If, at the end of the inquiry is a recommendation, in the case of the KPK the recommendation leads to which direction? Will it be to the KPK or to the government as whole? If it is the draft recommendation that has been circulating recently among the public, it is a plurality because it is addressed not only to KPK, but also to the government. For example, one of the DPR’s recommendations drawn from the results of the special inquiry committee is to improve the recruitment of KPK employees, which has thus far been regulated in a KPK regulation. Of course, through the MK ruling, the DPR can argue that the recommendation can be implemented because this still lies within a non-judicial framework. If the KPK cannot carry it out, what will happen?

What is confusing is the relationship between the government and the KPK. We of course understand that the DPR cannot explicitly force the KPP. Because, aside from being independent, no threat exists against the DPR’s right to express its opinion to the KPK if the recommendations are not executed. So, does this mean that the DPR can force the government to carry out its recommendations against the KPK? In fact, the question is, since the KPK has been equated with the executive, can the President force the KPK to implement something as a result of the DPR’s supervisory authority? The answer, of course, is no, because the KPK is free from the influence of any power, including the President’s, in carrying out its duties.

Other implications include: What about the fate of other independent state institutions? Is the ruling particular to the KPK? Apparently not, because the article under examination has no connection to the KPK Law, but instead concerns the Law on Legislative Institutions. Does this mean, then, that all independent state institutions can be subject to an inquiry by the DPR in the carriage of their executive functions and not their judicial functions? What about the function of institutions such the OJK, the LPS and the Business Competition Supervisory Commission (KPPU), whose main duties are to fulfill executive functions? Does this mean that they, too, can be examined in as much detail as possible?

The most dangerous implication of this strange ruling is, of course, the public’s trust in the MK. Never mind that this ruling comes amid the ethical violation committed by the MK chairman as a DPR member has admitted, saying that the MK chairman met with the DPR and promised, among others, the ruling as a kickback for his reelection.

The more explosive question is, was this ruling born from a legal or a political logic? Or is it a ruling that was born from mere self-interest? If the ruling was born from political logic and interests alone, then it is the same as betraying the MK\'s oath to settle political disputes through the rule of law.

Zainal Arifin Mochtar

Lecturer, Gadjah Mada University (UGM) Law School; Chairman, UGM Corruption Studies Center (Pukat Korupsi)