Floundering Early

The Corruption Eradication Commission (KPK) is entering a new era marked by a new KPK structure and a revised KPK Law.

KOMPAS/WAWAN H PRABOWO

Zainal Arifin Mochtar

The institution seems to be faltering at the outset; at least when measured by how it is managing the bribery case involving a commissioner of the General Elections Commission (KPU).

The most interesting thing is the changing face of the KPK’s work system under the newly revised law. Of course, what is meant is not just the substance of the law, but the constellation its presence has made. And all parties drove the law by acclamation, both government and opposition parties.

Confusion

In the “Politics of Anti-Corruption Law” (Kompas, 23/9/2019), I wrote about the political and legal responsibilities that the House of Representatives (DPR) and the President held for the poor legislative process. These responsibilities were to be met, but were unfortunately not. The President cannot hide behind "party pressures" or other similar language because legislation is a combined responsibility, and the President had promised to strengthen the corruption eradication program.

Therefore, it is more interesting to look at the constellation and concept of the law. First, in the first two KPK sting operations (OTT), the KPK operated during a transitional period that was untouched by Law No. 19/2019 (the revised KPK Law). Since its enactment on 17 Oct. 2019 and through the inauguration of the new KPK commissioners and the appointment of Supervisory Council members by President Jokowi on 20 Dec. 2019, it has never been made clear which law the KPK\'s work unit must use.

Look at the content of Article 69D of the KPK Law: "Prior to establishing the Supervisory Council, the duties and authority of the Corruption Eradication Commission are carried out based on provisions before the law was amended.” This means that all accompanying tasks and authorities must be carried out according to the old law and not yet the revised law, including investigating, interrogating and prosecuting. However, Article 70C states: "When this law is in effect, all investigations, interrogations and prosecutions related to all criminal acts of corruption whose legal process has not been completed must be carried out based on the provisions as regulated in this law."

This is confusing. Which law should apply in the period between when the law is in force and the installment of the KPK board? The two articles above are in diametrical opposition because they have very different mechanisms in many respects. However, the government and the DPR appear to be calm and do not consider this to be a problem.

Read more : Respond to Public Doubts

KOMPAS/RADITYA HELABUMI

Chairman of the Corruption Eradication Commission (KPK) for the 2019-2023 period Firli Bahuri (from left to right), KPK deputy chairman Alexander Marwata, KPK deputy chairperson Lili Pintauli Siregar, KPK deputy chairman Nawawi Pomolango and KPK deputy chairman Nurul Ghfron read out the integrity pact during the office handover from KPK 2019-2023 leaders at the KPK building, Jakarta, Friday (20/12/2019). The KPK supervisory council, led by Tumpak Hatorangan and KPK chairman Firli Bahuri, has officially begun serving for the 2019-2023 period.

The extremely incorrect transitional provision is worsened by the absence of additional technical rules for the transition period. It seems that this is just a problem for the KPK. This is why the KPK "decided" to refer to the old law in its cases after the law entered into force on 20 Dec. 2019. In fact, this is very dangerous because in the practice of pro justicia, especially in terms of the due process of law, is thick with obligations for guaranteeing the rights of interrogatees and suspects.

Second, the problem is far from over once the KPK Supervisory Council has been formed. The revised KPK Law contains many delegations, but these are also unclear, for example, the job structure between KPK commissioners and the KPK Supervisory Council. Article 37B stipulates the duties of KPK members, starting with surveillance, in approving wiretapping, searches and/or actions against bribery, following up on violations of the KPK code of ethics, reviewing and to assessing the violation.

Somewhat technical rules are provided in Article 12B and Article 47 specifically for search and seizure, and wiretapping, but they are insufficient. They leave many questions; for example, if the KPK Supervisory Council refuses to approve a request, should this include explanations?

If the reason for the refusal has been complied with, can the request be resubmitted? Even further, must the permission be provided in written, printed form? What if it is electronic? Must all members of the KPK Supervisory Council be present to decide on issuing the permission, or is this done on rotation?

Read more : Corruption Law Enforcement 2020

KOMPAS/WAWAN H PRABOWO

Members of the Corruption Eradication Commission’s supervisory council (Dewas KPK) greet journalists before reading the oath of office witnessed by President Joko Widodo at the State Palace, Jakarta, Friday (20/12/2019). President Joko Widodo decided to appoint Artidjo Alkostar (from left to right), Harjono, Syamsuddin Haris, Tumpak Hatorangan Panggabean, and Albertina Ho as Dewas KPK members. The establishment of the KPK Supervisory Board is mandated by Law No. 19/2019 concerning the KPK.

This question can be expanded further in relation to the Supervisory Council’s other authorities aside from issuing approval. The law does not regulate these and no other regulation is in sight. What appears to have been sped up is altering the employment status to state civil servants (ASN). So the most interesting question is, where is this status to be arranged? The law does not provide clear delegation. Because as it reads, this provision is to be followed by a Presidential Regulation (Perpres) on only two matters: executing the organs of the KPK (Article 37C, Paragraph 2) and the procedures for appointing the chairman and members of the Supervisory Council (Article 37E, Paragraph 11).

So, where is the relationship between KPK Supervisory Council and KPK commissioners to be arranged? Legal logic provides three possibilities: (1) via Government Regulation (PP), as a legal instrument for regulating the law, even though the law does not mandate it directly; (2) via KPK regulation, which apply to the KPK as a self-regulating body; (3) via a KPK Supervisory Council regulation, assuming that the council issue its own regulations. The matter of the council’s regulatory powers also raises no simple issues of legal debate.

With regard to a PP, this means that the KPK has to wait for a PP from the government, which means a waiting period. Meanwhile, handing this to the KPK council or the KPK commissioners to develop an institutional regulation could lead to an internal dispute, due to the supervisor-supervised relationship between the council and the commissioners.

What appears to have been sped up is altering the employment status to state civil servants (ASN).

It must be noted that the idea of the KPK Supervisory Council was born during the drafting of the law to avoid placing all power in the hands of the commissioners. But doing so has created a twin sun within the KPK. The principle of the separation of power frequently leads to disputes between the separate powers. Although this is certainly not the same, but imagine if the relationship between the president and the DPR in a presidential system was unregulated? Could this possibly be effective? Instead of functioning, a battle would emerge over how the two relate to each other. Amazingly, this is exactly what the revised KPK law does not regulate.

The disaster caused by revising the KPK Law does not stop there, especially as regards matters of institutional independence, altering its employee status to ASN, the absent status of a KPK commissioner as an investigator and a prosecutor in corruption cases, and various other matters.

Third, why does the KPK appear to be working relatively better, despite its “problematic” commissioners? It is because the KPK has a good internal system of control: Its internal control system works well because it is separate from being confined by the rigid ASN. And now, the KPK Law has changed the institution as a whole into a branch of the civil service. Supervising a model that works will certainly not be easy under a rigid system like the ASN. What is available is the KPK Supervisory Council, of which the supervisory model, as mentioned above, has not been clearly spelled out in terms of its relational structure. This the disaster that the revised KPK Law has created.

Facing disaster

The appropriate attitude and readiness could accommodate the revised law, and it is on this point that the KPK seems is inadequate. The OTT on Wahyu Setiawan contains many unexplained matters that have been left without any effort at resolving them. The KPK has allowed itself to be held “hostage” in some cases from the outset.

First is leaving matters unresolved, for example holding the KPK investigators “hostage" somewhere, even to imposing urine tests. The former KPK was more open and detailed in explaining the system of protection for KPK employees through its commissioners. But not this one.

Not to mention the duality of information at the KPK. For example, the Supervisory Council and its commissioners have different takes on the status of requests for approval. Likewise, the KPK has employed a different procedure than usual in the OTT. It made the arrest, followed by sealing the suspected location of the evidence for 24 hours, and then started the formal investigation.

The public needs a detailed explanation with a clear stance.

The KPK should have provided more details instead of hiding behind sentences that only confused the public more. If the KPK still acted according to its usual way, it would be easily engender public trust. However, the KPK has instead prompted public suspicion, signaling that either the KPK is dead or it has no guts.

Actually, it is easy to determine whether the KPK is already dead. The KPK could die from the revised law and the combination of the systemic chaos and problematic internal organs –the commissioners and KPK Supervisory Council – it has installed. This was already clear and irrefutable in one instance. Unfortunately, the KPK still did not display confidence in the next decisive instance. Therefore, the KPK should appear convincingly that the commissioners and the KPK Supervisory Council do not pose a problem. This appearance is inadequate on its own, because the public needs a detailed explanation with a clear stance. Without it, the public will suspect problems at the commissioner-council level.

As for the question as to whether the KPK is dead or not, of course this is still too early to say. However, that the KPK has suffered a setback is clearly seen in the legal context. Time will show whether this setback will lead to the institution’s death or not. If the KPK continues to appear to be floundering, then this could indicate that the KPK commissioners and the supervisory council are indeed problematic, and so the KPK is indeed dead. Let us hope not!

Zainal Arifin Mochtar, Lecturer, Gadjah Mada University (UGM) Law School, Yogyakarta; Researcher, Center for Anti-Corruption Studies (PuKAT), UGM Law School