THIS WEEK IN REVIEW:

The Corruption Eradication Commission (KPK) suffered a setback in its case against former Makassar mayor Ilham Arief Sirajuddin, when on Tuesday, May 12, the South Jakarta District Court found the anti-graft agency “lacked sufficient evidence” to support the charges of corruption filed against the South Sulawesi politician. Legal experts have questioned the legality of the court’s finding, arguing that it had gone beyond its authority to evaluate procedural aspects of the case and delved into evaluation of the evidence itself. Current and former KPK commissioners have spoken out against the ruling, and continue to weigh their limited appellate options. Interim KPK Commissioner Johan Budi has said that the KPK will refile charges against the former mayor after reflecting on the judge’s decision, and would adjust the agency’s strategy for facing future pre-trial challenges.

This week, officers with the National Police’s economic and special crimes division raided the offices of PT Trans Pacific Petrochemical Indotama (TPPI) and the Upstream Oil and Gas Regulatory Special Task Force (SKK Migas). Supported by fully armed tactical teams, the raids were an obvious show of force. The National Police have thus generated a great deal of media attention, which the forceprobably hopes will repair its questionable anti-corruption credentials. The KPK has been investigating allegations of corruption involving officials from SKK Migas, the Mining and Natural Resources Ministry and the House of Representatives (DPR) for years, and thus the raid was also thought to have been publicized widely to boost the police’s perceived relevance in the fight against corruption, despite the fact that it gors against the spirirt od pre-existing memoranda of understanding about bureaucraticengagement between law enforcement agencies in ongoing investigations. Furthermore, police statements that officers would brief the staff of the Financial Transaction Reports and Analysis Centre (PPATK) on PT TPPI have entirely sidelined the KPK, despite earlier pledges to coordinate with the anti-graft agency. This week, the KPK indicted Waryono Karno, former secretary-general at the Mining and Natural Resources Ministry, as his long developing case's trial opened at the Jakarta Corruption Court (TIPIKOR) on Wednesday, May 13.

Influential public figures continued to weigh in on the KPK’s proposal to open its doors to members of the Indonesian military (TNI). The response from the DPR was largely negative, with several members of Commission III – which overseas law, human rights and security affairs – saying the proposal violated a number of existing laws. By mid-week, the KPK clarified its position, stating that any military personnel would have to first retire from active duty before being considered for a position at the KPK. Some have speculated that the KPK are laying groundwork ahead of TNI chief Moeldoko’s upcoming retirement in June so that he might play a role at the anti-graft agency.

Finally, the KPK questioned a number of witnesses in a range of open cases, notably including the Udayana University Hospital, the procurement of electronic ID cards (e-KTP) and cases against former ministers Jero Wacik and Suryadharma Ali.

PRE-TRIAL MOTIONS OFFER NEW OPPORTUNITIES AND RISKS

The Constitutional Court’s decision on April 29 broadly expanded the criteria under which a district court is allowed to consider a pre-trial motion. The 6-3 split decision has sent ripples throughout Indonesia’s legal sector, the full implications of which have yet to be seen. Most notably, the ruling has led to a reversal of the KPK’s position on pre-trial challenges – turning away from its staunch opposition to the measure, to adopting it as a key part of the defense strategies for inactive KPK Vice Chair Bambang Widjojanto and KPK investigator Novel Baswedan.

For years, legal experts maintained that Article 77 of the Criminal Code stipulated that a decision to charge an individual as a suspect could not be challenged in court. In 2009, legal counsel for the National Police took this exact position as then KPK commissioners Chandra M. Hamzah and Bibit Samad Rianto sought an official review of the politically motivated charges that had been leveled against them amid a row with the police force.  

Six years later, when police general Budi Gunawan’s pre-trial motion for dismissal was granted at the South Jakarta District Court, it was decried as a miscarriage of justice and a troubling legal precedent. Between February and March, eight separate corruption suspects filed motions with the court to challenge the validity of the charges against them, attempting to benefit from the perceived loophole established by judge Sarpin Rizaldi’s controversial ruling. Despite widespread concerns about a possible “Sarpin-effect” leading to the nullification of charges against graft suspects, the South Jakarta District Court rejected the totality of the pre-trial motions filed in the February-March period, either because the cases had gone to trial and the motions were therefore automatically nullified, or because the court upheld a strict interpretation of the restrictions explicit in Article 77 of the Criminal Code. The only exceptions to this blanket rejection were the motions of former Makassar mayor Ilham Arief Sirajuddin and former director general of taxation Hadi Poernomo, which were withdrawn on April 1 and April 14, respectively.

During what the period of legal turbulence between February and March, the KPK adopted a wait-and-see approach. As such, Bambang Widjojanto and Novel Baswedan – each facing their own criminal charges – refrained from filing pre-trial motions for fear of lending legitimacy to a questionable legal maneuver. However, following the Constitutional Court’s ruling on the issue – which argued for an expanded judicial role as a check against the potential for the executive’s abuse of power – Bambang and Novel filed pre-trial motions on May 5 and May 8, respectively, to challenge aspects of their charges, arrests and the search and seizure of alleged evidence in their cases.

Ahead of Bambang and Novel’s pre-trial hearings, a recent case may serve as a premonition of things to come. On Tuesday, May12, the South Jakarta District Court accepted a new motion from former Makassar mayor Ilham Arief Sirajuddin and dismissed the corruption charges against him, stating that the KPK had failed to provide the two requisite pieces of supporting evidence. The KPK presented several witness statements, corroborated by financial statements, but the judge refused to accept photocopies and unsigned witness statements in lieu of original documents. This ruling suggests two things: The district courts now feel emboldened by the Constitutional Court’s ruling to not only to examine the procedural aspects of a case, but also the quality of the evidence presented (despite lacking legal authority to do so); and the KPK was unprepared for this type of in-depth examination, as opposed to the former technically focused (and legally correct) reviews of proper procedure and legal authority. In response to the ruling, interim KPK Commissioner Johan Budi said that the judge had exceeded his authority by wading into the substance, rather than the procedure, of the investigation. Johan added that if the court insists on a full examination of the evidence, it would force law enforcement agencies to tip their hand and thus jeopardize ongoing investigations before they reached their full conclusion.

Bambang and Novel’s cases have been plagued with well-documented irregularities and violations of their civil liberties. Thus, the recent trend of judicial activism provides the best avenue currently available for the embattled corruption fighters to challenge the politically charged cases against them. It also introduces a long absent judicial check on the potential excesses of executive authority in a society where search and arrest warrants do not require a judge’s approval.

On the other hand, this trend creates troubling opportunities for district courts to usurp the authority of the Corruption Court (TIPIKOR) system, which was created to address district courts’ own inability to handle corruption cases with professionalism and impartially. Because the TIPIKOR have no express legal mandate to review pre-trial motions, district courts take on a crucial role in this regard and may halt investigations midstream until a legislative fix can be adopted. The likely implication is that the KPK, and other law enforcement agencies, will wait to conclude an investigation before charging an individual. However, this may come with its own drawbacks in terms of the ability to forcibly detain a suspect to prevent an attempt to flee, or destroy evidence.

In the week ahead, hearings are slated to begin on Monday, May 18 on graft suspect Hadi Poernomo’s refiled pre-trial motion. These proceedings may offer additional insights on how the South Jakarta District Court interprets the Constitutional Court ruling ahead of Novel’s pre-trial proceedings, which are slated to begin on May 25. A date has not yet been assigned for the start of Bambang’s hearings.

KPK REACHES OUT TO THE MILITARY

KPK officials have recently made statements that indicate a tightening of relations with the Indonesian Military (TNI). While most media attention has focused on the benefits and drawbacks of hiring TNI personnel as KPK investigators, this actually represents a deepening of the existing KPK-TNI relationship that has gradually intensified with the onslaught of the police in early 2015. TNI personnel have repeatedly provided security – both in the form of guarantees and personnel – for the KPK’s physical building and its leadership personally.

Initial outcries rightly focus on the long string of human rights abuses at the TNI and its own problems with integrity. These are well-founded and represent a significant risk for the KPK, in terms of reputation and dependence. There is no reason to assume that the military will provide its support out of altruistic purposes. At the very least, it is hoping for a reputational boost by associating itself with the exceptionally popular KPK. More likely, the TNI sees strengthening the KPK as a way to get at its rival, the police. Worst case scenario, it will seek to usurp the KPK and abuse its powers.

These are serious risks and require careful monitoring and management. Those condemning any cooperation with the TNI, however, ignore the power realities of both the institutional setup and the current political climate.

Institutionally, the KPK is a law enforcement agency tasked with going after the most powerful criminals in the country, but lacks its own force infrastructure. Its efforts to build a separate investigative force have progressed well, but remain under judicial and legislative threat. In any case, the KPK’s investigative resources will never be a match for the police’s staff of 400,000. The KPK has always relied on support from outside agencies: police investigators and Attorney General Office prosecutors have been seconded to the KPK for a decade. The KPK has, rightly, relied exclusively on its moral authority and avoided a building up its own show of power which would have led to a futile arms race with other law enforcement agencies. This moral authority, however, has always been backed up by the belief among those arrested that KPK has the “juice” to bring anybody to justice. As soon as that belief was shaken, as result of the recent pre-trial motions, compliance with summons has rapidly decreased.

The KPK, therefore, is in the dire need to demonstrate that it can marshal forces to enforce its decisions. Since the police force has spent the last four months demonstrating its zeal in destroying the KPK, it can clearly not be relied upon to support KPK in this regard. Strengthening the KPK’s own internal force is also exceptionally difficult under the current hostile legislative environment and lukewarm support from the executive. The perceived choice of enlisting the TNI’s support, therefore, is not a choice at all. It is an inevitability, caused by the police’s onslaught.

It is worth noting that the partnership with the military has certain advantages over that with the police in addition to the drawbacks: the military has almost no investigative authority outside the military. Even if the TNI were to fall out with the KPK, a repetition of the current crisis, including threats of criminal prosecution, is unlikely. The KPK Law also severely limits the KPK's ability to investigate corruption in the armed forces, thus eliminating concerns about conflicts of interest.  The KPK gecko thus cunningly seeks survival by balancing between the rivalries of the two crocodiles.

The question, then, becomes: how can this relationship be managed without becoming a Faustian pact? Four key guidelines would be a good start:

1)     Scrutiny before recruitment: TNI (and future police secondees) should be subjected to the same stringent recruiting screening that outside applicants go through, with a special focus on background checks to avoid bringing in those tainted with a history of graft. “Political” appointments are alien to the very core of the KPK and can thus be avoided.

2)     Avoidance of conflict of interest: TNI staff seconded to the KPK should not be allowed to engage in investigations where military interests might be affected. If at all possible, they should also refrain from investigations into the police (and police secondees from investigating military-related interests)

3)     Sunset clauses on employment: Seconding agencies should, at the outset, agree to allow its staff to join the KPK if they so choose. There is significant benefit to the KPK inviting the best and brightest (and most honest) to join its ranks permanently.

4)     Managing public opinion: The KPK needs to be exceptionally transparent in the recruitment of military personnel and the continued employment of police officials, outlining how many have joined and what their responsibilities are. The agency should also publicly explain the basis for cooperation and the standards to which secondees will be subjected, as well as how the KPK plans to enforce these frameworks.