The Legal Policy of Anti-Corruption
The reason to strengthen the KPK is merely a justification for the revisions, and upon examination, it has almost none of the right reasons.
Legal policy, according to Mahfud M.D.’s concept (2004), can be translated into at least three aspects: One, as a "blueprint" of the ideal policies and regulations; two, the political tug-of-war that occurs in the room for deliberating and approving the legislation; and three, the implementation that is expected and is controlled by the regulation.
In the tragedy of the revised Corruption Eradication Commission (KPK) Law, the position of these three aspects appears to have weakened. The reason to strengthen the KPK is merely a justification for the revisions, and upon examination, it has almost none of the right reasons. When the House of Representatives (DPR) and the government deliberated and approved the bill, it was revealed how thin were the anti-corruption and the KPK’s institutional strengthening that President Joko “Jokowi” Widodo and political parties promised during their election campaigns.
The imagined blueprint is not in alignment with the objective of strengthening the KPK. Everything changed during the chatter over political interests to result in laughable and contradictory articles. The legal policy of strengthening the KPK was thrown out.
Blueprint
In terms of substance, the bill that the DPR proposed does not consist of a clear blueprint for reinforcing the KPK and combating corruption. The blueprint’s character emerged during the deliberations, but it is filled only with interests that bear a variety of party colors. It seems that the proposed bill is more illustrative of the DPR’s desire to tame the KPK, rather than any talk of reinforcement. As a simple example, the initial proposal mandates the formation of a Supervisory Board (Dewas) that consists of full of various pro justitia authorities while at the same time, the supervisory board membership is elected by the DPR. What seems to transfer the KPK’s authority related to important pro justitia (for the sake of justice) matters to the Dewas is actually transferred to the DPR by proxy.
Not to mention, the KPK is to be composed of investigators who are not independent. Especially if it is read in a detailed manner alongside the other proposed bills, it is very easy to understand that the bill increasingly seeks to undermine the KPK’s independence.
The concept of supervision does not always require a separate institution.
President Jokowi then appeared at a press conference that seemed bold and promising, but upon examining its details, it contained almost no mention of the legal policy of strengthening the KPK and eradicating corruption. Jokowi iterated four main points, in addition to the surpres (presidential letter) he signed. First, he did not agree that the KPK must obtain a warrant from an external body to conduct wiretapping. The KPK could simply obtain internal permission from the Dewas. Second, he did not agree that the KPK investigators come only from the police and the prosecutors’ office. KPK investigators could also be state civil servants (ASN) who are appointed from among the employees of the KPK and other government agencies, but as part of the civil service.
Third, he also disagreed that the KPK must coordinate with the Attorney General\'s Office in pursuing legal prosecution, and the current justice system was already good so it did not need further changing. Fourth, he disagreed with transferring management of the state official’s wealth report (LHKPN) from the anti-graft body to a ministry or other state institutions.
It seems that almost all was mere lip service, because these responses did not answer the problem. For example, the Dewas is institutionally problematic and not just because of who is to select the body: Is the supervisory body -- whose true function is supervision – to be an institution that has the authority to issue warrants for wiretapping and investigation, which are part of the pro justitia process? There was also no clear response to the concept behind the KPK Bill. Also, in saying that the supervisory function must be carried out by an institution, did Jokowi forget that theoretically, “supervision” can be carried out by either an institution or a system? When using the rationale that it must be an institution, the basic question that must be raised is, which institution oversees the DPR? The concept of supervision does not always require a separate institution.
The President was inaccurate in focusing only on who will be chosen by whom.
Voters oversee the DPR through the electoral system. And the similar concept of a supervisory system has worked so far at the KPK. The Supreme Audit Agency (BPK) oversees its finances; the DPR supervises through its hearings, even to the point that it can use the right of inquiry (Constitutional Court Decree No. 36/PUU-XV/2017). The DPR and the government can even assess the performance of KPK commissioners, so that they might determine whether the commissioners’ terms can be extended during the next selection process.
So actually, the problem of a supervisory board lies in its very idea, and not in who will select its members. The President was inaccurate in focusing only on who will be chosen by whom. Moreover, the effort to "tame" the KPK was clearly visible in authorizing the Dewas to issue warrants on wiretapping as well as search and seizure. It seems as through most of the KPK’s activities are being transferred to the to the Dewas. With the Dewas possessing such a scope of authority, who will oversee the Dewas?
Similarly, forcing the KPK to adopt the civil servant concept immediately ignores the stringent requirements of a civil servant as noted in Law No. 5/2014 and sets aside KPK employees of various skills from the civil servant. Not to mention, a blank check has been issued that grants the Law and Human Rights Minister and the Administrative and Bureaucratic Reform Minister the authority to deliberate with the DPR. It also came to light later that the revised law had been fast-tracked. Without a blueprint for reinforcing the corruption eradication efforts, what will ensue is the death of the KPK.
Conspiracy of conflicting interests
Anybody can see that the revised KPK Law was the result of competing political interests. However, this is where the Constitution and legislation come into play to open room for public participation, and not merely to fulfill political convention. Space is thus open to public participation and aspirations, and to provide a variety of feedback on adjustments and other matters. Article 96 of Law No. 12/2011 on Lawmaking, for example, clearly stresses that public participation is vital to the legislative process. However, this has been entirely cut out on the grounds that the public had already been involved a long time ago. Is it because the bill was initially deliberated sometime ago that the obligation to obtain public input was negated?
The argument cited for fast-tracking the legislation is Article 23, Paragraph 2 of the Lawmaking Law, which allows for the limited submission of a bill without its inclusion on the list of the national legislation program on two conditions: to overcome extraordinary circumstances, a situation of conflict or a natural disaster, and the other condition is that circumstances dictate a national emergency for passing a bill. Again, the basic question is, what types of extraordinary circumstances and national emergencies dictate that the revised KPK Law must be fast-tracked?
Law No. 12/2011 mandates five stages of legislation: proposal, deliberation, approval, endorsement and passing into law. The bill was proposed quickly without regard to public participation, and then immediately proceeded through the approval and endorsement stages. And this was done together with the President. First, the President signed the presidential letter [to approve the proposed bill] in a mere three days, even though he had 60 days to do so. Is this characteristic of the President\'s performance so far? It has never been thus. What has been the President\'s usual course is to take a long time preparing a problem inventory list (DIM) that involves inviting many parties and experts.
Why didn’t the President take the same steps in revising the KPK Law?
However, he did not do so this time, bypassing the DIM so that the bill passed smoothly into the deliberative and approval stages, led by the Law and Human Rights Minister and the Administrative and Bureaucratic Reform Minister for and on behalf of the President.
When speaking of creating good legislation, the deliberative and approval stages must be separate. The deliberation is a give-and-take process that allows for adjustments to the legal substance, as the President outlined to his ministers. The assigned ministers must report any legal developments to the President to obtain his agreement every step of the way. However, this was not the case: following the first stage, the deliberations were completed in a flash and the bill headed straight to approval. I have no idea what is the object of the chase that the process must be so hurried.
This is a contrast from the President’s stance in the case of the draft Criminal Code Bill (RUU KUHP). Imagine, citing the reason that several points still remained to be discussed further, he decided to postpone the RUU KUHP – a bill that was already completed and in the process of being approved at the commission level. The President refused to continue agreeing with the DPR at the plenary level.
If some matters still required discussing and it was necessary to gather public input, why wasn\'t the same move applied to the KPK Bill? In fact, when examining the KPK Law that was produced as a result of the DPR and the ministers (acting for and on behalf of the President) agreeing, the issue appears to differ from the above four mandates that the President cited. Why didn’t the President take the same steps in revising the KPK Law?
An equally important factor among the oddities surrounding the KPK Law is the anti-graft body’s possible impotence in all its corruption eradication efforts.
In actual fact, only the 80-100 DPR members who were in attendance took the decision. The other members simply entrusted their colleagues to act as their proxies. Formally, this is a serious violation of the legislative process. To submit one’s agreement requires the lawmaker’s physical presence, and not their names on an attendance list. This is clearly a legal violation according to Constitutional Court Decision No. 27/PUU-VII/2009, or a “procedural flaw” in the language of the court\'s ruling. However, despite all these errors, the process has continued, just like that.
Stuttering implementation
An equally important factor among the oddities surrounding the KPK Law is the anti-graft body’s possible impotence in all its corruption eradication efforts. In addition to the concepts under discussion, the bill contains so many articles that were drawn up in a rush that does not consider the future implications on the KPK’s performance, its commissioners’ scope of responsibilities or the eradication of corruption itself.
For example, the commissioners have lost their role as "investigators and public prosecutors" in Article 21, Paragraph (4) of the KPK Law. Does this mean that the KPK commissioners are become mere administrative officials and are no longer law enforcement officers? This cannot be equated with the Attorney General as defined in the State Prosecutor\'s Law, even though it contains no sentence defining the Attorney General as an investigator and a public prosecutor, but Article 18, Paragraph 1 of Law No. 16/2004 on the Prosecutor\'s Office clearly grants authority to the Attorney General as the leader and person of responsibility who leads prosecutors as well as manages the execution of their duties and all other authorities. However, with Article 21’s disappearance from the KPK Law, it is easy to argue that the commissioner has authority over the issuance of a sprindik (warrant of investigation) as well as legal prosecution. Then who will be responsible for signing the warrant?
The public will still remember the chaos of the legislative process and up to the judicial review in the Constitutional Court.
Another thing deals with the fact that the rush to make the law did not consider the fate of the commissioners who have been selected for the 2019-2023 term. Some of these commissioners are not yet 50, whereas the revised law mandates a minimum age of 50 to be appointed as a KPK commissioner. If the President signs the bill into law or it automatically becomes law 30 days after the DPR’s approval, the selected commissioners face ambiguity over their appointment. The rationale that the law is not retroactive is a logical fallacy, because the law’s retroactivity must be regulated in transitional articles that stipulate, for example, that the articles apply after the inauguration of commissioners who have been selected for the 2019-2023 term. And it has been proven that several DPR lawmakers themselves claimed to have never talked about this.
So, what now?
If it can still be hoped for, I wish the President to become aware on at least two levels. First, the President can still offer up his political position by refusing to approve the KPK Bill. Even though it will still pass into law in 30 days after the DPR’s approval, even without the President\'s signature, the President can at least indicate that he wants to withdraw from the perverse legal policy to kill the KPK and the corruption eradication effort. Second, the President can take the bold step to correct this legislative process that has gone too far by issuing a Perppu (government regulation in lieu of law). The Perppu should contain the right legal policy to reinforce the KPK so it closes the door on the political interests that have colored the bill in order to tame the KPK, and which amends the law so it can be implemented properly.
If not, it means that the KPK Law and its anti-corruption legal policy are being allowed to undermine and eventually destroy the KPK. The public will still remember the chaos of the legislative process and up to the judicial review in the Constitutional Court. It will be clearly engraved in the memory of the people, who have been made to feel vulnerable and discouraged by this anti-corruption spirit.
Zainal Arifin Mochtar, Lecturer, Gadjah Mada University (UGM) Law School, Yogyakarta; Researcher, Center for Anti-Corruption Studies (PuKAT), UGM Law School