- The Pre-trial Process Could Not Invalidate the Suspect Status of Budi Gunawan
- The Supreme Court Judge Selection Process and the Enrolment of a Former Constitutional Court Judge
- Parliament’s Updated Code of Ethics Hinders Process of Law Enforcement towards MPs
- Guarding the 2015-2019 National Legislation Program (Prolegnas)
The Pre-trial Process Could Not Invalidate the Suspect Status of Budi Gunawan
The cancellation of the suspect status of Comr. Gen of the Police, Budi Gunawan, through the pre-trial mechanism, is not consistent with the law. According to the law, the pre-trial mechanism has no authority to invalidate the determination of someone by the KPK as a suspect. Art. 77 of the Criminal Procedures Code outlines that the pre-trial process only has authority to examine: (i) the arrest or detention stage, (ii) the termination of investigation or prosecution, and (iii) compensation or rehabilitation for someone whose case was stopped at the investigation or prosecution level.
It is very clear in the article that the determination of a suspect and the start of investigation is not a part of the pre-trial examination. In this way, it is also very clear that the pre-trial mechanism is not able to invalidate the status of a suspect and could not stop the investigation process of Comr. Gen (Police) Budi Gunawan from going ahead. The Supreme Court and Judicial Commission certainly need to keep a close eye on this process. It is important to note that the Supreme Court previously had imposed disciplinary sanctions on the judge, Suko Harsono, in Chevron’s bioremediation case with the suspect Bachtiar Abdul Fatah. Judge Suko Harsono was disciplined because he invalidated the determination of suspect by extending the remit of the pre-trial mechanism.
Based on Article 40 of Law No. 30 Year 2002 on the Corruption Eradication Commission (Komisi Pemberantasan Korupsi/KPK), KPK has no authority to stop investigations or prosecutions. Hence, the suspect Comr. Gen (Police) Budi Gunawan sooner or later will be the accused when the case is taken to court. The pre-trial mechanism simply cannot invalidate the suspect status of Comr. Gen (Police) Budi Gunawan. KPK could not stop the investigation or prosecution so Comr. Gen (Police) Budi Gunawan is bound to be charged. Thus, there is no reason for President Joko Widodo not to immediately revoke the appointment of someone who is a suspect and will be the accused in a corruption case, not least the chief of police. (MSG)
The Supreme Court Judge Selection Process and the Enrolment of a Former Constitutional Court Judge
Starting on 29 December 2014 and finishing on 19 January 2015, the Judicial Commission opened up the Supreme Court Judges’ selection registration and has received 92 registrants. On 28 January 2015, the Judicial Commission, which is given the authority by law to conduct the selection, has finished the administrative part of the selection process and has announced 86 candidates who will qualify for the next stage. Among those candidates, 56 of them are career judge and 30 are non-career judges.
The candidates who have passed the administrative selection process are eligible for the feasibility test, which will be conducted from the 7th to the 9th of February this year. In the feasibility test, the candidates will be tested by making on-the-spot papers, legal case analyses as well as analyses of code of ethic violation cases. The candidates also have to submit two of their best works based on their job history which includes one district court decision and one appellate court decision for the career judge candidates and two general papers for the non-career judge candidates.
Based on Article 3 of Judicial Commission regulation No. 1 Year 2014, the Supreme Court judge selection will be conducted in several stages, which are the registration stage, administrative selection stage, feasibility test, announcement of qualified candidates and the stage of nomination of candidates to the House of Representatives. Based on Constitutional Court ruling No. 27/PUU/2013, the House has a duty to give an approval or disapproval to the candidates. At the current selection stage, the Judicial Commission is looking for eight candidates to be proposed to the House.
At the selection stage, the issue that will be raised is of the enrolment of former Constitutional Court judge, Ahmad Fadlil Sumadi, who finished his tenure as a Constitutional Court judge on 6 January 2015. Since finishing his tenure on the bench, he was sent back to be an appeals court judge, which is essentially lower than his previous position. Further discussions are still needed regarding this issue. Meanwhile, according to the Constitution, the position of both the Constitutional Court and Supreme Court are level and that the requirements to be Constitutional Court or Supreme Court judges are relatively similar. (MS)
House of Representatives
Parliament’s Updated Code of Ethics Hinders Process of Law Enforcement towards MPs
The Parliament has now passed a new code of ethics. The code of ethics outlines the behavior of MPs in personal as well as professional spheres. For instance, the code of ethics prohibits MPs from taking any side jobs, including continuing their previous profession, even if it does not have any significant relation to their work as an MP, or which could potentially hinder the functioning of an MP, including being an artist. This issue has become a big controversy within circles of MPs who were previously artists by profession.
However, the most important issue is in Article 11 of the code of ethics. Article 11 stipulates issues related to the independence of MPs in performing their functions and power. One source of the controversy is the procedural control put in place, whereby if an MP is summonsed by a law enforcement agency they need to first obtain permission from the Parliament’s Ethic Committee Assembly. The article is an implementation of immunity rights, as stipulated in Law No. 17 Year 2014 on the People’s Consultative Assembly, House of Representatives, House of Regional Representatives, and Regional House of Representatives, which has become source of critique and controversy from the public. (GAT)
House of Representatives
Guarding the 2015-2019 National Legislation Program (Prolegnas)
The National Legislation Program (Prolegnas) for the period 2015-2019 is currently in the process of being discussed by the Legislation Council (Badan Legislatif/Baleg) in the House of Representatives (Dewan Perwakilan Rakyat/DPR). So far there have been around 210 bills that have been submitted to the Legislation Council to be discussed in the committee meeting on Monday, 2 February 2015. There have been 126 bills proposed by the House of Representatives, 81 bills proposed by the Regional Representative Council (Dewan Perwakilan Daerah/DPD) and 84 bills are the government’s own proposals. However, substance of the proposed bills intersect each other, with 141 bills proposed by one institution (House of Representatives, Council, or government), 57 bills proposed with the support of two institutions (House of Representatives and Council, House of Representatives and the Government, or the Government and Council), and 12 bills proposed by the three institutions combined (House of Representatives, Council, and the Government).
Discussion and adoption of the National Legislation Program in the House of Representatives’ 2015-2019 period has indeed suffered setbacks in terms of time delays. This is due to the internal chaos in the House, which has resulted in the election of the Chairman of Baleg still remaining in limbo. Therefore the working agendas by Baleg are also behind schedule. One of the most crucial is the preparation and adoption of Prolegnas 2015-2019. Although there are setbacks in the discussion and adoption of Prolegnas 2015-2019 this should not be reflected in the quality and quantity of Legislation. Reflecting on the House of Representatives period of 2009-2014, 126 bills were successfully passed into law, while a remaining 27 priority bills could not be completed.
The legal affairs bills proposed by the Indonesian Centre for Law and Policy Studies (Pusat Studi Hukum dan Kebijakan Indonesia/PSHK) to Prolegnas 2015-2019 include the Criminal Code Bill (RKUHP), Criminal Procedures Bill (RKUHAP), the Bill of Police, Advocates Bill and the Bill of the Supreme Court are bills within the law enforcement sector. The Corruption Eradication bill and the Bill of Cash Transaction Restrictions are bills within the anti-corruption sector. The Bill of Associations, Organizations Bill, Bill of Protection of Indigenous Peoples, and the Bill of People with Disabilities are bills within the human rights sector. While the Revision of the Election Act, the Revision of Political Parties Act and the Revision of MD3 Act (People’s Consultative Assembly, House of Representatives, House of Regional Representatives, and Regional House of Representatives/MPR, DPR, DPD and DPRD Act) fall within the realm of the political sector. The stated vision and mission of the Jokowi-Jusuf Kalla Government in the area of law enforcement is to prioritise the building of strong political legislation. A strong political legislation means the eradication of corruption, human rights enforcement, environmental protection and the reform of law enforcement agencies. Referring to the government’s vision and mission, it has become part of the Jokowi Government’s homework to participate in the success of the National Legislation Program 2015-2019. The success of the National Legislation Program will be judged not only in terms of a quantitative measure of bills passed into law but also in terms of the quality of the legislation. (PB)