On 8 February, the Constitutional Court issued a decision that paves the way for the…
In late April 2017, the House of Representatives (DPR) stared down protests from the public – and some of its own members – and launched a special inquiry into the Corruption Eradication Commission (KPK). The inquiry is based on the constitutional right of the DPR to investigate government affairs, known as hak angket. It was triggered by former Hanura lawmaker Miryam Haryani’s claim that KPK investigators forced her to confess that she had distributed funds to other legislators in the massive electronic identity card (e-KTP) graft scandal, which caused state losses of Rp 2.3 trillion (AU$218 million).
The DPR committee leading the inquiry has said that it aims to investigate complaints about how the KPK conducts its investigations, the KPK’s internal governance (including the leaking of classified information, allegations of internal conflict and budget mismanagement), and its apparent failure to strengthen the work of police and prosecutors. But it is widely believed that the real intention of the inquiry is to intervene in, or at least distract from, the KPK’s investigation into the e-KTP case, and weaken the commission more broadly.
Legal flaws with the inquiry
The legality of the establishment of the inquiry committee has been questioned by scholars. The Association of Constitutional and Administration Law Lecturers, for example, claims that it is flawed in its subject, object and procedure.
On the issue of the inquiry’s subject (the KPK), Article 79(3) of Law 17 of 2014 on Legislative Bodies states that the right of inquiry is the right of the DPR:
to investigate the implementation of a law and/or government policy relating to matters that are important, strategic and have broad-based impacts on the life of society, the nation and state, which are suspected to contravene laws and regulations.
The term “government”, according to the elucidation (or explanatory memorandum) to the law, refers only to the president, vice president, ministers, military commander, chief of police, attorney general, or heads of non-ministerial government agencies. These agencies are institutions under the president and are responsible to him or her through the ministers who coordinate them (see Article 25(2) of Law 39 of 2008 on State Ministries). They include the State Intelligence Agency (BIN), the State Narcotics Agency (BNN), the National Land Agency (BPN), the Central Statistics Agency (BPS) and many others. The KPK, an independent institution with no obligation to report to, or coordinate with, a particular minister, does not fall under the jurisdiction of the DPR’s right of inquiry.
Likewise, the object of the right of inquiry should be limited to matters that are “important, strategic and have broad-based impacts on the life of society, the nation and state”. Arguably, the issues that the inquiry seeks to address, particularly Miryam’s confession, do not to meet these stringent criteria. By contrast, the 2009 inquiry into the fuel price increase or even the unsuccessful inquiry attempts into the misuse of Bank Indonesia Liquidity Assistance (BLBI) bailout funds during the 1998 financial crisis or the 2011 tax mafia scandal are much easier to justify on these grounds.
The procedure for establishing the inquiry committee itself was also questionable. DPR Deputy Speaker Fahri Hamza, who has always been very critical of the KPK, simply proclaimed the establishment of the inquiry committee after relatively short hearing, despite the fact that many lawmakers did not agree with the proposal and some even walked out in protest. The decision was made without consensus or a vote, in violation of Article 199(3) of the Law on Legislative Bodies, which states that such a proposal should be considered in a plenary meeting involving at least half of all DPR members, and must have the approval of at least half of them to go ahead.
There is also a serious conflict of interest problem – the head and several members of the inquiry committee, Agun Gunandjar Sudarsa, Bambang Soesatyo, Desmond Junaidi Mahesa and Masinton Pasaribu, were reportedly among a group of lawmakers who pressured Miryam to withdraw her confession to the KPK.
Previous attacks on the KPK
This inquiry is not the first attempt to curtail the KPK’s powers. Since it was established in 2003, there have been more than a dozen major attempts to kill off the anti-corruption body. These have been led by various individuals and groups, and have involved different strategies, including attempts to amend the KPK Law (Law 30 of 2002), criminalisation of KPK members and supporters, and physical attacks on KPK leaders and investigators, as well as other attempts to destabilise the organisation.
The DPR’s multiple attempts to revise the KPK law have aimed at curtailing its powers (such as the power to conduct independent surveillance and prosecution), and converting it into a non-permanent institution. There have been more than 15 attempts to challenge articles in the KPK Law at the Constitutional Court, none of which have been successful. At different times, the DPR has also postponed the appointment of KPK chairs and refused to allocate state funds needed for construction of the new KPK building.
Notoriously, the police have openly attacked the KPK on several occasions, criminalising its chairs and investigators when the KPK pursued high ranking police officers. Rumours also suggests police were behind the acid attack on Novel Baswedan – a KPK investigator who played a crucial role in investigating the e-KTP scandal and other high profile cases.
Impact of the inquiry
The ultimate impact of the inquiry process – beyond being an unnecessary distraction – remains unclear. What is clear, however, is that the committee will try to expose any weaknesses in the KPK and its investigation into the e-KTP case.
For example, the committee has asked the KPK to provide it with a recording of Miryam’s interrogation and confession and hopes to bring her before a committee hearing. The committee also visited individuals and institutions who it says are “victims” of KPK investigations and prosecutions, such as corruption convicts and the BPK (Supreme Audit Agency), to gather complaints.
It is highly likely that allegations of misconduct by KPK officials will be reported to police, and we will see another round of conflict between the institution and the police. There will no doubt be renewed attempts to amend the KPK Law, or even abolish the institution.
Whatever the result, the DPR will need support from the executive, which seems not to be forthcoming. Unlike past episodes, when the police have been in the forefront of attacks on the KPK, the police chief has so far kept his distance, stating that the police would not forcibly take Miryam from KPK detention to attend a committee hearing. Presidential Spokesperson Johan Budi, meanwhile, said that Joko Widodo would not support any recommendations from the committee to weaken the KPK.
Desperately needed at this point is stronger civil society support for the KPK and pressure on the president to maintain his position. As past attacks on the KPK have shown, civil society pressure will be critical to ensuring that Indonesian democracy is not hijacked by elites who have only their own interests in mind.
This piece was written as a summary of, and response to, a monthly discussion convened by Indonesian postgraduate students and scholars at the University of Melbourne. Professor Denny Indrayana spoke about attacks on the anti-corruption movement during the most recent discussion on 22 June 2017.