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Monday, March 05, 2007

New Year's work for government, House

by
Mohamad Mova Al 'Afghani and Rahmat Bagja, Jakarta

The Constitutional Court's decision on the judicial review of the 2002 Corruption Law is a significant change to law enforcement in Indonesia. Of all the claims put before the judges, they have only approved one -- rejecting Article 53 that governs the special Corruption Court. What should be complimented is that the court's decision was grounded upon clear reasoning and concise legal justifications, and not simply based upon popular demands. The court also took into account the government's legal reform agenda, although this is obscured in legal language.



Despite this, the Constitutional Court applied rather unconventional legal logic in its corruption law decision. It has also applied such logic to several previous decisions, namely on the water law and state budgets.

The judicial review of the corruption law was submitted by those defending themselves against graft charges and their colleagues. There were many objections to the law brought before the court -- (i) that the possibility of being tried under one of two courts -- the "dualism" of corruption proceedings, is a violation of the defendant's right to legal certainty, (ii) that the wiretapping conducted by KPK is a violation of the Constitution, human rights provisions and national law and (iii) that the jurisdiction and authority of the KPK is overly broad because it can act based only on a mere report by a citizen and (iv) that the existence of the present Corruption Court is unconstitutional, as it is not based on a specific law.

Of all those objections, the Constitutional Court only accepted one: That the existence of the Corruption Court is unconstitutional. The Constitutional Court ruled that the proceedings, the selection of judges and the procedural rule of the Corruption Court should have been regulated by a specific law, and not in the same law which also regulates the KPK.

The court gave three years to the House of Representatives to draft a specific law regulating the Corruption Court, after which if no action is taken the court will be automatically dissolved. We are of the opinion that the Constitutional Court's reasoning is in some parts less compelling -- although not necessarily groundless -- because of the following reasons:

First, there is no evidence whatsoever that regulating the Corruption Court in the same law as the Corruption Eradication Commission (KPK) automatically violates the Constitution. The Constitution only mandates that the composition, membership, appointment and procedural law of the courts existing below the Supreme Court is regulated by a law. The KPK law has fulfilled such requirements and should therefore be consistent with the Constitution.

Second, there is no guarantee that "equality before the law" will be observed by simply segregating the corruption court in a new law other than the KPK law. In order to be fully constitutional, the future corruption court must have specific competencies in adjudicating all corruption cases, as part of a "one-roof" system.

Third, the Constitutional Court did not clearly establish the link between a violation of the "equality before the law principle" and why the existence of the corruption court under the KPK law violates such a principle. The reference made by the court in justifying its argument is more to "a custom of regulation", and not directly about the Constitution itself. It is a custom in Indonesia that special courts are regulated through specific legislation, but this custom does not imply that it is a Constitutional requirement to regulate specific courts in an exclusive law.

Fourth, there is presently no direct constitutional injury suffered by anyone due to these measures, so the dangers as seen by the court are potential, not actual. It is true that there has been discrimination against people in corruption cases -- those who go to ordinary courts are generally treated more lightly compared to those detained by the KPK.

However, these are not direct constitutional injuries but merely injuries caused by a corrupt legal system. Had the legal machinery functioned properly, these negative effects could be minimized as the law has already outlined the exact competencies of each institution.

In any circumstances, the establishment of a specific corruption court is indeed necessary for the effort toward corruption eradication and the current law on the KPK is not perfect due to the possible loopholes as explained by the Constitutional Court.

However, we consider it insufficient that a legal provision is declared void simply because it disregards theoretical legislative drafting requirements. In this case there should have been a legislative review and not a judicial review.

We are of the opinion the Constitutional Court wants to take a more active role in combating corruption -- the reason for it issuing such decision. This is both a brave and risky act as, if the House of Representatives makes no specific law on the Corruption Court within three years, the current court will be automatically dissolved. The government and the House of Representatives have become politically compelled to do the work given to them by the Constitutional Court.

Because of this, it is vital we keep an eye on the bargaining process in forming such a law and must bear in mind that the people involved have strong interests in the outcome. The corrupt and would-be corrupt will want to have a soft law, while civil society activists will want to strengthen the role of the Corruption Court.

If a compromise is reached, we might have a stronger and better judicial system. But if no compromise is reached, corruption eradication will be at serious risk.

Mohamad Mova Al 'Afghani (http://nanotechlaw.blogspot.com) is a lawyer and a lecturer. Rahmat Bagja (bagja98@yahoo.com) is the head of the constitutional division of the National Legal Reform Consortium.

Opinion and Editorial - January 11, 2007

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