Another threat to the KPK? Constitutional Court sides with the DPR

From left: Corruption Eradication Commission (KPK) Deputy Chair Laode Muhammad Syarif, former Constitutional Court Chief Justice Mahfud MD, KPK Chief Agus Rahardjo, Andalas University Law Professor Yuliandri and KPK spokesman Febri Diansyah criticised the launch of the special inquiry into the KPK in 2017.  Photo by M Agung Rajasa for Antara.

 

For almost a decade, Indonesia’s Corruption Eradication Commission (KPK) has met significant resistance from a hostile national legislature (DPR).

 

The main reason for the legislature’s animosity appears to be the KPK’s sustained focus on the alleged improprieties of legislators, both past and present, dozens of whom have been investigated, prosecuted and convicted for involvement in corruption scandals. Most recently, the KPK has been investigating the misappropriation of funds allocated to establish an electronic identify card system – the so-called “e-KTP scandal”. This has ensnared various politicians, including former DPR Speaker Setya Novanto.

 

In response, the national legislature has sought to dig up dirt on the KPK, alleging that the KPK has misused its powers, manufactured key evidence and even mistreated witnesses and suspects. As part of this attempted smear campaign, key politicians have made use of the DPR’s “hak angket” power, launching a special inquiry into the KPK in April 2017.

 

The DPR has had this power for decades. It is defined, in Article 79(3) of Law 17 of 2014 on the MPR, DPR, DPD and DPRD (often called the MD3 Law), as the power to investigate the “implementation of a statute and/or government policy, related to an issue that is important, strategic and has a wide impact on the life of the people and the nation, which is suspected to violate the law”.

 

In the context of DPR-KPK relations, its seems clear that the DPR wishes to compel the KPK to attend investigations to appear stronger than the KPK – that is, to be seen to exercise control over it – and, ultimately, to find a justification to disband it.

 

The DPR special committee set up to conduct the inquiry involved six of the seven parties in the ruling coalition, including the two largest factions in the DPR, the Indonesian Democratic Party of Struggle (PDI-P) and Golkar. The KPK refused to recognise the legitimacy of the inquiry and initially refused to meet with any members of the special committee. Preliminary findings delivered in September 2017 recommended that the KPK’s operations be suspended.

 

But when Bambang Soesatyo replaced Novanto as DPR speaker in January, he said one of his first priorities was to halt the inquiry, and the special committee eventually delivered a greatly watered down list of recommendations on 14 February.

 

Responding to the launch of the inquiry about eight months earlier, a civil society organisation, the Forum for the Study of Law and the Constitution (FJHK), along with a student and lecturer, had sought review of the hak angket provision by the Constitutional Court. These applicants asked for an order from the Court that Article 79(3) was unconstitutional, at least to the extent that it allowed the DPR to call the KPK in for questioning.

 

In one sense, this was a rather unusual request, because, strictly speaking, it seems tantamount to asking the Court to rule on the way that a statute is to be applied. In many cases, the Court has said that it cannot do this, but rather can only decide on the constitutionality of the text of a statute. But the applicants appeared to avoid this hurdle by requesting that the Court declare Article 79(3) unconstitutional, unless interpreted to restrict the DPR to calling institutions that were part of the executive. They argued that the KPK, which by law is “independent and free from government interference”, was not subject to the DPR’s hak angket power.

 

On 8 February, the Constitutional Court issued its decision, which focused on two main issues. First, could the DPR’s hak angket powers be used to call any institution to account, or just executive bodies? And, second, presuming the latter was the case, was the KPK part of the executive?

 

The Court was split by five judges to four. The majority accepted that the KPK Law required that the KPK be independent in performing its functions, but found that this did not mean that the KPK was immune from the hak angket process.

 

The majority classified the KPK as falling within the executive branch of government, primarily because it “implemented legislation” in the field of law enforcement in corruption matters. For the majority, there was simply no basis upon which an exception could be made for the KPK.

 

Three judges – I Dewa Gede Palguna, Suhartoyo and Saldi Isra – issued a joint dissent, and Maria Farida Indrati wrote her own dissent.

 

The three dissenting judges accepted that in Indonesia, as in many other countries following different systems, the legislature could, and should, be able to oversee or investigate the performance of the executive, but only the executive bodies in charge of the day-to-day running of the government. Unlike the majority, these judges decided that KPK was not part of the executive. It could not, therefore, be compelled to attend investigation by the legislature.

 

As for Indrati, she decided that the KPK was part of the executive, but found that it was not subject to the angket process. For her, the KPK was not accountable to the head of the executive – the president – but rather only to the public, so it could not be called to account by the national legislature.

 

The decision appears to pave the way for the DPR to call the KPK to account in future inquiries. All along, the KPK has said that it will comply with any Constitutional Court decision, however adverse to it.

 

Yet it is by no means clear that if the national legislature uses its angket power to call in the KPK it will be able to use that power to discredit the KPK. While the KPK has always denied that the DPR has power to compel it to appear for investigation, it has every chance of acquitting itself with aplomb. After all, it is a far more professional and trustworthy institution than the national legislature, if recent surveys are any indication.

 

The main risks for the KPK are still manufactured allegations of impropriety – threats KPK commissioners know all too well, having seen many of their predecessors accused of crimes they did not commit.