Law Enforcement Notes 2019
”Noch suchen die juristen eine definition zu ihrem begriffe von recht [No legal expert can make a precise definition about the law],” wrote Immanuel Kant more than 150 years ago.
Although legal experts know what the law is, there are many things about the law and its relationship to other things that defy definition and explanation. The law controls all areas of life. The law regulates every person from the womb to the grave. The law is eternal and is binding on every person whether as an individual, community or nation.
In this context there applies an old maxim which states, "Non erit alia lex romae, alia athaenis; alia nunc, alia posthac; sed et omnes gentes, et omni tempore, una lex, et curterna, et immortalis continebit [The law does not move or die, the law is eternal and applies forever until all nations are bound to it].” Therefore, formulating legal notions in a concise and clear sentence is something that is impossible. It is not possible to formulate the law in a definition that includes an understanding of the various fields of law that exist.
Mutatis mutandis, talking about law enforcement means talking about many aspects of the law itself from various fields of community life. It is not possible to review law enforcement comprehensively in this short article reflecting on the end of the year. Therefore, I have chosen three main issues to explore.
Law enforcement in the general election
The first issue is law enforcement in the politics of this year, with all its hustle and bustle. It cannot be denied that the fight between the two pairs of candidates in the 2019 presidential election polarized the community. Desecration, hate speech and animosity between divided groups of people resulted in an endless series of stories on social media and in various news outlets, both print and electronic media, that pitted people against each other.
The May 21 to 22 riots in Jakarta formed the climax of this polarization.
Political escalation did not stop on election day but continued to increase, especially ahead of the determination of the election results. In the post-election period, a variety of narratives discrediting the General Eleciton Commission (KPU) flooded social media, seeking to delegitimatize the election. Unfortunately, this was done by middle and upper elites who were hungry for power. Narratives emerged that included "deceitful elections"; "Structured, Systematic and Massive Fraud"; "KPPS [the polling station working committee] Members were Poisoned" and the viral incitement of a popular rejection of the election results, including a call for revolution. The May 21 to 22 riots in Jakarta formed the climax of this polarization.
Read more : Corruption Law Enforcement 2020
It is not easy for law enforcement officials, especially the police as the front guard of the criminal justice system, to take legal action against reports of defamation, incitement, hoaxes or treason.
On the one hand, if the police act quickly against the reported parties, especially in the form of arrests and detention, they will be seen as taking sides with the regime and tending to violate human rights. On the other hand, if the police act too late and riots result, they will be considered slow and overly lenient. In such a context, the National Police must act extra carefully, professionally and proportionally so that not all cases end in court.
Even though, according to the election law, electoral dispute resolution and disputes over the votes are two different domains, the choice to delegate the determination of the contested presidential election to the Constitutional Court should be appreciated. In addition to promoting the law in the settlement of cases, it also moved street justice to a court that was dignified, elegant and constitutional.
An important note about preventing commotion in the implementation of elections: Elections must be separated between national elections to elect members of the House of Representatives (DPR), the Regional Representatives Council (DPD), the president and vice president and regional elections to elect members of provincial, regency and city legislative councils (DPRDs), governors, regents and mayors.
Corruption eradication
The second main issue relates to combating corruption. Throughout 2019, the red-handed arrest operation (OTT) by the Corruption Eradication Commission (KPK) remained the ultimate weapon in the eradication of corruption involving political party leaders, members of the DPR, governors, regents, mayors and state-owned company (BUMN) directors. In the midst of the rampant red-handed arrests, the public was shocked by two verdicts on corruption. First, the release of Syarifuddin Arsyad Tumenggung in the Supreme Court\'s cassation ruling and, second, the ruling of the Jakarta Corruption Court against state electricity company PLN former director Sofyan Basyir.
Apart from the pros and cons of the two verdicts, a not-guilty verdict for a defendant in a corruption case shows the failure of the public prosecutors (read: KPK) to construct an indictment and substantiate the indictment. The KPK must be more careful in handling corruption cases.
Another topic related to the eradication of corruption that is no less interesting is the election of KPK commissioners. The composition of the selection committee was accused by anti-corruption institutions of being dominated by people who were very close to National Police institutions. In fact, the committee had acted professionally with highly measurable assessment criteria and had involved several institutions in recruiting candidates for the KPK commissioners.
As a result, only one of the KPK commissioner candidates submitted to the President came from the National Police. The others were from judicial, prosecutorial and advocacy backgrounds. In spite of the questionable voices against the elected KPK commissioners, it would be wise to give the commissioners the chance to show they can eradicate corruption.
The last issue regarding the eradication of corruption that grabbed the attention of the public and caused massive demonstrations was the revision of the KPK law. It is an indisputable fact that there was a major problem in the eradication of corruption by the KPK, especially relating to the status of early suspects, as the KPK does not have the authority to stop an investigation.
Another target of criticism in the KPK law was the existence of the Supervisory Board and the wiretapping process that required the Supervisory Board\'s permission. With regard to the revision of the KPK law, my notes are as follows:
First, it must be understood that the substance of the KPK law is within the context of criminal procedure law. The philosophical foundation of criminal procedure law is to prevent the arbitrariness of the state towards individuals, because criminal procedure law may restrain rights.
It can be imagined that someone would be arrested, detained, searched, that his property could be confiscated, even though it is not certain whether in the final ruling he would be found guilty. Therefore, criminal procedure maintains its official nature by adhering to the lex scripta (written law), lex certa (clear law) and lex stricta (strict law).
Second, in connection with the first, there must be an end to the investigation as a manifestation of the sunset principle. However, there must also be a limitation to the investigation if not enough evidence is found in the case, if the case is not criminal, if the suspect dies or nebis in idem. The termination of an investigation is also possible if a person has been declared a suspect but within a certain time period the relevant person has not been processed.
The third note relates to wiretapping. This is an extraordinary instrument to detect crime. That wiretapping can be audited for accountability is a natural thing, but it is possible that wiretapping may be done without having to ask anyone for permission.
Fourth, the existence of the Supervisory Board to oversee the performance of the KPK as a whole is very necessary, but it is not given the power of a projustisia nature, including granting wiretapping permission or other mandates.
The rejection of the revision of the KPK law turned out to have an impact on the rejection of the ratification of the Criminal Code bill, even though the new Criminal Code is very urgently needed. Fortunately, the government and the House of Representatives have changed the law on legislation which enables the House to carry over the discussion of the Criminal Code bill to the newly inaugurated DPR. That there is a lack of socialization of the Criminal Code bill is something that cannot be denied.
Therefore, with regard to several articles which have caused controversy, there are three possibilities. First, the article can be applied if there is the same understanding after it has been explained to the public. Second, it is possible to reformulate the existing draft after receiving input from various parties. Third, the article can be deleted if the substance is considered over-criminalization.
Omnibus law
The third main issue is related to the formation of omnibus laws. One of President Jokowi\'s visions outlined in his inaugural address was to cultivate broad investment by simplifying regulations so as to obtain legal certainty. In this context, there arises the discourse on the formation of the omnibus law.
Literally, the omnibus law is defined as the law for everything. I can understand why this idea has emerged. First, there are many overlapping laws. Second, it seems no synchronization exists among the various UU products. Third, there is a long bureaucratic chain in handling things, especially when it comes to investments involving foreign parties.
Omnibus laws are considered a solution to cut the chain by referring to only one law regulating a topic even though it relates to many fields. However, it should be noted that omnibus laws also have weaknesses.
First, they are pragmatic and only for the sake of a momentary interest, even though the laws carry legal, social and philosophical force. Second, they may over-simplify regulations in order to facilitate decision making, even though they involve many fields that are not necessarily related to each other. Third, they can lead to legal disorder if they collide with various laws that already exist and tend to be unconstitutional. As a comparison, the US issued the United States Omnibus Trade Law in 1988, but its substance was considered in conflict with the antitrust law governing the conduct of corporations (University of Miami, Inter–America Law Review, Vol 21, No 1, 1989).
It should be noted that omnibus laws also have weaknesses.
Apart from the discourse on the formation of an omnibus law, in order to improve various law products as legal substances, it is necessary to immediately establish the National Regulatory Agency in addition to manifesting President Jokowi\'s campaign promises in the presidential and vice-presidential debates in early 2019. The agency is needed to harmonize and synchronize various laws. Experience so far shows that the existence of an asynchronous regulation causes legal uncertainty in law enforcement.
One example is the issue of corruption in state owned enterprises (SOEs). Is SOE wealth separate wealth or is it state property? Between one law and another there are different answers. When referring to the law on state finance, the law on the supreme audit agency or the corruption law, SOE assets are part of the country\'s wealth. Conversely, when referring to the SOE law and the limited liability company law, SOE assets are not part of the state\'s wealth.
Unfortunately, a former SOE director is being tried in a corruption case having been charged with harming state finances by providing profits to other SOEs. If SOE assets are considered state wealth, the logic is simple. In that case, the state is detrimental to the state\'s finances because it provides benefits to the state. It sounds strange, but that is the reality of law enforcement in our country as it contends with messy law products.
Eddy OS Hiariej. Professor of Criminal Law, Faculty of Law, Gadjah Mada University.