Single Investigator for Corruption Cases
Indonesia is, perhaps, the only country in the world in which the authority to investigate corruption lies in more than one state body, namely the National Police, the prosecutors’ offices and the Corruption Eradication Commission (KPK).
Indonesia is, perhaps, the only country in the world in which the authority to investigate corruption lies in more than one state body, namely the National Police, the prosecutors’ offices and the Corruption Eradication Commission (KPK).
For the general public, the presence of multiple agencies that deal with corruption investigation may look like the government is serious in eradicating the crime. However, for those with a comprehensive understanding of the justice system, this situation leads to legal arbitrariness of the state and the absence of legal protection for citizens.
Theoretically, the concept of legal protection within the context of criminal law can be seen as in abstracto and in concreto. In abstracto legal protection means that legal stipulations, in their substances, should provide protection. Meanwhile, in concreto legal protection means that practices of law enforcement should also provide protection.
Two parameters
There are at least two parameters to find out whether or not any legal norm provides in abstracto legal protection. First is whether or not the norm ensures legal certainty. Second is whether or not the norm is discriminatory.
The two parameters are cumulative. This means that, if any of them are unfulfilled, it can be said that the legal norm does not provide in abstracto legal protection. In the context of corruption eradication, the presence of an authority to investigate corruption in more than one state body may lead to discrimination, lack of legal certainty and violation of human rights.
This is because there is no standardization of procedures in processing corruption cases across the three state bodies, thereby violating the principles of due process of law.
If a corruption case is investigated by the National Police, the principle of functional differentiation will apply. It means that the police only has the authority to investigate while the legal prosecution will be done by the prosecutor’s office. Without sufficient evidence, the police can stop its investigation in line with Article 109 of the Criminal Code.
Theoretically, the functional differentiation principle means that each state body has separate duties and functions in the criminal justice system. The National Police’s duty is to investigate, while the judges’ duty is to try suspects. If a corruption case is handled by the prosecutors’ offices, the principle of functional differentiation will not apply as prosecutors will have the authority to both investigate and prosecute. Similar to the police, prosecutors may cease their investigations if evidence is insufficient.
The case is different with corruption investigation at the KPK. Apart from the absence of functional differentiation, similar to in prosecutors’ offices, the KPK does not have the authority to cease investigations. Consequently, if someone is arrested by the KPK for corruption, rest assured that a trial at the corruption court will follow.
There have never been any clear parameters on what corruption cases should be investigated by the police, prosecutors or the KPK. Article 11 of the KPK Law limits the corruption cases that it can tackle, namely cases involving state organizers and/or law enforcers.
However, despite the limitations, there is always a possibility that either the police or prosecutors will tackle certain corruption cases. Another consequence is the unhealthy competition between state bodies, the lack of legal certainty and violations of human rights.
A prime example is the Boeing aircraft lease corruption case involving Hotasi Nababan. The National Police criminal investigation division ceased its investigation into the case a quo. Similarly, the KPK through its director of public complaints said that evidence in the case was insufficient. However, the special crimes division of the Attorney General’s Office (AGO) said that there was sufficient evidence that corruption had occurred. Strangely, the AGO’s state administration and civil division won a civil lawsuit in the same case at the Washington, DC, court in the US.
This means that there are differing opinions even in the AGO itself. Some said that the case a quo was a criminal case while others said that it was a civil case. Using the same method of investigation, all three state bodies (the police, the KPK and the AGO) should have come to the same conclusion regarding whether or not evidence was sufficient.
This shows that there is strong potential for a person to be criminalized for certain reasons. If the person is reported for alleged corruption to one state body that later declares that evidence is insufficient in the case, another report may be filed to another state body on the same alleged crime.
This highlights the KPK’s lack of effectiveness in coordinating with and supervising the police and prosecutors in corruption eradication, in line with Article 6 of the KPK Law, due to sectoral ego of all state bodies involved.
Should be under one state body
In such a context, should we maintain this system of corruption investigation by more than one state body? This is despite that the anticorruption convention was ratified with Law No. 7/2006, which aims to eradicate corruption efficiently and effectively by upholding the principles of due process of law.
I am of the opinion that the authority of corruption investigation should exist only in one state body. In my opinion, the KPK should have this sole authority. I will now present my arguments.
First, corruption is an extraordinary crime. One of the seven criteria of extraordinary crimes is the presence of a special state body to tackle the crime with a wide-ranging authority. The KPK Law gives the agency a legitimacy over this. Second, Article 6 of the anticorruption convention stipulates that a special state body is to tackle corruption cases effectively. In the context of Indonesia, such a special body refers to the KPK.
Third, the KPK has a comprehensive enough organizational structure, covering not only punitive measures but also prevention. Fourth, credible foreign agencies, such as the UN Office on Drugs and Crime (UNODC), have given the KPK its best practice award for corruption eradication. Fifth, empirical facts show that all corruption cases tackled by the KPK are 100-percent proven in courts.
If the KPK serves as a sole investigator in corruption cases, some actions will need to be taken. First, regional KPK offices must be established. For now, there are at least seven KPK representative offices in Indonesia, each covering northern Sumatra, southern Sumatra, central and eastern Java, Sulawesi, Kalimantan, Bali and Nusa Tenggara, as well as Maluku and Papua.
Second, there must be a significant recruitment of employees from outside the police and prosecutors’ offices. Third, apart from punitive actions, preventive measures must be increased by holding trainings for state bodies and on projects deemed prone to corruption.
The KPK model
Next is the KPK model as the sole investigator of corruption cases. There are at least two alternative models. The first is that the KPK holds the authority for investigation and prosecution. This model is not without its theoretical argumentations.
Feeney in Managing of Criminal Justice states that the professionalism of law enforcers should be based on not only theoretical knowledge but also personal experience and work in handling cases. In essence, in the criminal justice system, the work of one law enforcer will affect and put the burden on all others. The work of an investigator, for instance, will affect and put the burden on public prosecutors. Therefore, it should be considered that the duties of investigation and prosecution be placed in one state body. Feeney emphasized that, in order to ensure effective and efficient tackling of cases, the functions of investigation and prosecution must lie in one state body.
In the context of corruption eradication, what Feeney explains is found in the work of the KPK, which holds both the authority to investigate and prosecute. If this model is to be chosen, the KPK should be given the authority to cease its investigations. This is to ensure that no human rights are violated in handling criminal cases. In the RJ Lino case, Taufiequrachman Ruki and the other KPK commissioners of his era named Lino a suspect, nearing the end of their tenure.
For more than four years, the case has gone nowhere, while current KPK commissioners only have one more year in office. On one hand, Lino has spent so many years with the “suspect” label stuck to him. On the other hand, a person named a suspect has the right to legal certainty and to find out whether or not he or she is guilty.
The case is similar with former Garuda Indonesia boss Emirsyah Satar, who was named a suspect several years ago but without any information on when he will be tried. A common excuse is that the KPK has a shortage of investigators.
If this is truly the case, then the work pattern at the KPK should be revised. A person can be named a suspect only when his or her case dossier is 60 to 70 percent complete. Therefore, the person may not have to spend too much time before his or her case goes to court. This ensures legal certainty.
The ability to cease investigations is also needed for internal correction if insufficient evidence or errors are found in the investigation. No matter how you want to look at it, the KPK is staffed with people; and people make errors.
The second model is that the KPK handles corruption investigation, while prosecution is delegated to the prosecutors’ offices as the dominus litis or master of a case. The dominus litis aims to protect suspects from protracted cases, due to the opportuniteit principle that determines whether or not a case goes to trial.
The dominus litis principle is universally applicable in various criminal justice systems in the world that recognize prosecutors as the single prosecution system. If this model is to be chosen, fundamental improvements must be carried out in the prosecutors’ offices, especially on the mentality and behavior of prosecutors involved in the judiciary mafia. These improvements must also touch on the top leaders of the prosecution system.
In line with the rule that the National Police is headed by an active police officer and the Supreme Court is headed by an active justice, it may be considered that the AGO is headed by an active prosecutor. Even if the attorney general is not an active prosecutor, he or she should not have been affiliated with any political party for the previous five years before appointment, in order to ensure independence in handling cases. After all, corruption is closely related to politics and power.
Eddy OS Hiariej, Professor of Criminal Law, School of Law, Gadjah Mada University, Yogyakarta