”Quo Vadis”, the Revision of the KPK Law
Based on theoretic systematic thinking, it is necessary to understand that the KPK Law is a formal law whose task is to enforce material law.
One of my colleagues, who is also an anticorruption activist, Zainal Arifin Mochtar, at an event that was broadcast live on television, said emphatically that the only thing that lasts forever in this world is change.
Zainal\'s remarks were made in response to the voices of those who insist on revising the Corruption Eradication Commission (KPK) Law. In his next explanation, Zainal also said that he was not allergic to changes, but emphasized that what was important was that the process of change be right and more than that, the substance of the changes had to be discussed, both theoretically and politically.
The intention of the House of Representatives (DPR) to revise the KPK Law was approved by the government, which allowed a limited revision. In this regard, President Joko “Jokowi” Widodo assigned the law and human rights minister and the administrative and bureaucratic reform minister to discuss it with the DPR.
Based on theoretic systematic thinking, it is necessary to understand that the KPK Law is a formal law whose task is to enforce material law. It can be said that the KPK Law is ius puniendi, namely the state\'s right to prosecute, punish and give penalties for, in this context, the crime of corruption.
What is meant by material law is that the KPK Law is ius poenale, which contains the substance of the crime of corruption itself. Former KPK chairman Taufiequrachman Ruki and one of the initiators of the a quo law Prof. Romli Atmasasmita, at the same event as Zainal, also said that after 17 years, the KPK Law needed to be adapted to current developments.
If this is so, why does the KPK Law get priority? In fact, in terms of time, the Corruption Law is in much more urgent need of renewal.
First, the Corruption Law is a material law whose revision must get priority over the KPK Law as a formal law. Second, one of the tasks that has been delayed more than 13 years is to adapt the Corruption Law to the United Nations Convention Against Corruption (UNCAC), which has been ratified through Law No. 7/2006.
Third, a lot of the substance of corruption crimes covered in UNCAC certainly follows the times but has not been adopted in the Corruption Law, such as trading in influence, active-passive bribery of foreign public officials and corruption in the private sector. Fourth, several provisions in UNCAC related to investigative techniques, if adopted, would actually strengthen the KPK. Strictly speaking, the revision of the Corruption Law is far more urgent than the revision of the KPK Law.
Strengthening the KPK
At present, in reality, the DPR and the government have agreed to revise the KPK Law. The only path that must be taken is that the substance of the changes must strengthen the KPK’s ability to eradicate corruption efficiently and effectively, while still adhering to due process, as a general principle that applies universally in criminal procedural law. Some important issues in the framework to strengthen the KPK are as follows.
First, it is necessary to build mutual understanding within the government and the DPR regarding the existence of the KPK, which is not meant to be temporary, but permanent. When the Corruption Law was formulated after the reformation, the provisions of Article 43 of the a quo law explicitly required the existence of a special body to prevent and eradicate corruption, referred to as the KPK. The establishment of the KPK was not groundless, but was based on a descriptive factual enforcement of criminal law as a whole, where the police and prosecutor institutions are in the spotlight.
Second, referring to articles 5 and 6 of the UNCAC, a special body is required to eradicate corruption, in this case the KPK. The existence of the KPK as a special institution that is permanent is one of the seven parameters of extraordinary crime, namely, a special institution is needed to deal with these crimes with broad authority.
Third, the KPK is the only institution that conducts legal action against perpetrators of corruption. This is meant to prevent disparities in law enforcement against corruption between institutions and further guarantee legal certainty. However, before the KPK could be realized as the sole corruption eradication institution, it was necessary to develop infrastructure, including the readiness of human resources, both in terms of quality and quantity.
In a theoretical context, the determination of suspects based solely on preliminary evidence is basically a realization of the sunrise principle in the criminal justice system.
Fourth, the KPK was given full authority to appoint independent investigators. It means that the independent investigators come from outside the police and the prosecutor\'s office. This is to overcome the shortage of investigators at a time when the number of corruption cases being handled is numerous.
Fifth, relates to wiretapping. In the future, presumably the procedure for wiretapping and recording conversations by the KPK must be strictly regulated by following three points: 1) Telephone tapping and recording conversations do not require permission; 2) There must be a period of time for how long the KPK may conduct telephone tapping and recording conversations as part of an investigation; 3) Wiretapping is only carried out if there is already preliminary evidence of a criminal act of corruption.
This means wiretapping is carried out at the questioning stage and not the investigation stage. The provisions of telephone tapping at the questioning stage are comparable to the same provisions on terrorism and narcotics crimes, which are also extraordinary crimes.
Regarding the termination of the investigation
Sixth, concerns the termination of an investigation. Under Article 40 of the a quo law, the KPK does not have the authority to issue a warrant to stop an investigation. This tends to violate human rights because it can be misused. It was explicitly stated by Prof. Romli Atmasasmita at the above event that the KPK Law when it was formulated indeed violated several human rights principles.
In a theoretical context, the determination of suspects based solely on preliminary evidence is basically a realization of the sunrise principle in the criminal justice system. It means that a person suspected of committing a criminal act should be declared a suspect as soon as possible and be legally processed to be immediately brought to justice. The philosophical basis of these principles is to prevent the perpetrators of the crime from simply escaping the bondage of law.
As a counterweight to the sunrise principle, in the criminal justice system is also something known as the sunset principle. This means that if a person has been declared a suspect in further questioning and there is not enough preliminary evidence or sufficient evidence, the case will immediately be stopped. The philosophical foundation of this principle is not to punish innocent people.
In the revision of the KPK Law, there must be provisions that can stop investigations with limited reasons: 1) If the suspect dies; 2) If the case has expired; 3) If there is nebis in idem; 4) If there is not enough evidence. Besides the first reason, the cessation of investigations by the KPK can only be carried out based on a joint case hearing between the KPK, the police and representatives of the Attorney General\'s Office.
This is intended for the creation of a common understanding of a case that will be investigated. if in the future there is new evidence to complement the existing evidence, the case can be reopened.
Eddy OS Hiariej, Prefessor at the Faculty of Law of Gadjah Mada University