Saturday, July 14, 2007

Ministry of State Bill Controversy

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: The Daily Pikiran Rakyat, 28 Nopember 2006.

IN the past few days, the controversy surrounding the draft Bill (the Bill) of the Ministry of State continues among the public. Even in its development, the government through the Minister of State Secretary (minister) Yusril Ihza Mahendra has refused to take the attitude expressed formulation of several articles contained in the substance of the draft State Ministry and demanded that the House of Representatives (DPR) will soon make a change (revision) of the substance of the draft Bill (Media Indonesia, 3/03/2007). Keep in mind, Indonesia Over 58 years standing and has formed 36 of the cabinet, this time forming a new cabinet would be governed by the Act. Bill formed the background of the State Ministry for a mandate of Article 17 paragraph 4 of the 1945 Constitution.

In Article 17 paragraph 4, which is the third amademen results of the 1945 Constitution stated that the establishment, alteration, and dissolution of the Ministry of State set out in legislation. In addition, the intent and purpose of the establishment of the State Ministry of the Bill is to strengthen the presence of presidential government system laid down by the 1945 Constitution and to give assurance or guarantee in the cabinet formation process and the determination of the ministers who had been based more on aspects of political bargaining (bargaining politics ) alone. In addition, the establishment of the State Ministry of the bill is a preventive effort to prevent arbitrariness (abuse of power) in the form and the president dissolved the Department / Ministry of State.

As we know, in the past the formation and dissolution of the State Ministry is done entirely by the President without the involvement of the role of representative institutions (parliament) has resulted in alteration and dissolution of the Ministry of State for political purposes only president himself. This is at least reflected in the cases that occurred during the reign of former President Abdurrahman Wahid (Gus Dur). At the time served as president, Gus Dur dismissed easily Ministry of Social Affairs, Ministry of Information, and Youth and Sports Ministry for not having a role and an important function in the administration of government. Thus, if the bill eventually passed the State Ministry of the Act by the Parliament, the President can not act arbitrarily in the form or dissolve a department or Ministry of State.

On the whole substance of the draft bill that the State Ministry is currently in the process of discussion in the level of a special committee (special committee) House of Representatives consists of eight chapters and 25 articles. When studied and reviewed comprehensively, on the one side of the material substance contained in the bill can be said Minister of State is good enough, because it contains rules regarding the prohibition of dual office minister. In Article 17 of Ministry of the bill states that prohibited ministers concurrently / or take charge of other state agencies, political organizations, commissioners or directors of state or private companies and take charge of other organizations that are funded from the budget / budget. However, on the other hand draft substance which is the Ministry of State Parliament the proposed initiative, had strayed far from the intent and purpose of the early establishment of the Bill. Even the draft can be said to have violated the State Ministry prisip principle-presidential system of government contained in the body of the 1945 Constitution and the potential 'delete' and 'amputate' prerogatives possessed by the President as head of state and head of government in determining the amount of the State Ministry.

This reflected at least in some formulations the articles contained in the draft State Ministry. Several formulations these articles are, first, the formulation of Article 2, paragraph 2, which regulate the mention of the name or type of State Ministry of Home Ministry, Ministry of Basic and Special Ministry. Second, the formulation of Article 7 paragraph 1, 2, 3 are arranged on the classification of cabinet members to the State Ministry of Home Ministry, Ministry of Basic and Special Ministry, as well as restrictions on the Ministry of State can be formed by the President. Third, the formulation of Article 13 paragraph 2, which regulate the need for parliamentary approval in the case of the President will shape and the State Ministry mengabungkan Basic. Fourth, the formulation of Article 14 paragraph 1 which regulates the prohibition on the President to change the name of Ministry of Home and the formulation of Article 14 paragraph 2, which regulate the need for the approval of Parliament in terms of the President to make changes to the name of Ministry of Basic. Fifth, the formulation of Article 15 paragraph 1 which regulates the president dissolved the prohibition for the State Ministry of Home and the formulation of Article 15 paragraph 2, which regulate the need for parliamentary approval in the case of dissolution of the State Ministry of Basic.

Base on the above issues, there is now no other alternative, which must exit the current elected to end its controversial draft bill is to make the State Ministry of the reforms and improvements of the draft. Steps you can take is to immediately make changes (revisions) to comprehensively on the substance of the State Ministry draft. This is due to the need for the State Ministry of Law is very urgent at the moment. In addition, the existence of the State Ministry of Law is absolutely necessary for building the system of government can run more effective, stable, and also productive. So that the Indonesian people closer to the ideals of justice and prosperity for all Indonesian people.

At the time of the reform push and pressure from the people and to launch an eradication of corruption, collusion and nepotism (KKN) is so great in the New Order government, the government and the House of Representatives (DPR) make improvements to Law No. 3 Year 1971 on Eradication of Corruption became Law No. 31 Year 1999 on Eradication of Corruption act. The next set of institutions / sixth team, through a Presidential Decree. 127 In 1999, a Commission inspection team Wealth of State Officials (KPKPN). Institution / seven teams established by Government Regulation (PP) No.. 19 In 2000 a joint team eradication of corruption (TGTPK). Finally, after the dissolution of established institutions TGTPK / eight teams, based on Law No.30/2002 with the name Pemerantasan Corruption Commission (KPK).

Although currently most people who rate the performance of the Commission is still less than satisfactory, but if a comprehensive evaluation of the performance of eight institutions was formed to combat corruption, the Commission's performance as a result of the new institution "for the rest of the corn" in the anti-corruption efforts can be said to be good enough and satisfactory than seven institutions had formed a kind of before. This can be evidenced from the success of the Commission reveals many cases of corruption of state officials. Many of those state officials who eventually became defendants sentenced to prison even lead to no light. Several corruption cases of government officials who successfully dismantled by the Commission among other things, the purchase of helicopters corruption cases committed by the former Governor of Nanggroe Aceh Darussalam Abdullah Puteh, corruption cases that occurred in the General Elections Commission (KPU), which involves Samsyudin KPU Chairman Nazaruddin and Mulyana W. Kusumah. In fact, the Commission managed to uncover performance and prove that the mob justice has been roaming the world to dismantle our judicial bribery case involving a lawyer Probosutejo, Harini Wijoso, and employees of the Supreme Court Pono Waluyo.

Apparently, the results of the Commission's performance is quite successful in uncovering cases of corruption do not reap something positive, the response that occurs only made the corruptors feel hot and full of anger that caused resistance implications in the form of counterattack corruptors (corruptors fight back) which is currently enjoying his sentence in the "hotel without cost". Counterattack strategy corruptors done elegantly and systemic. This is in order for the Commission as the front guard of corruption in Indonesia has become a toothless tiger with no power. His form at the end of last August, they are the corrupt through his legal request a judicial review. The applicant did request testing efforts (judicial review) of Law No. 30/2002 against the 1945 Constitution to Mahkmah Constitutional Court (MK) with registration number No.12/PUU-IV/2006 case, No.16/PUU-IV/2006, and No. 19/PUU-IV/2006.

Of the three applications above, there are six main issues that the applicant submitted. First, the existence of the Commission. Second, the existence of a special court (ad hoc) corruption (Corruption). Third, the implementation of the principle of presumption of innocence (presumtion of innocent) associated with the absence of authority for the Commission issued a Letter of Termination Investigation and Prosecution (SP3). Fourth, the existence of wiretapping and recording instruments. Fifth, the provisions / rules and the application of the phrase "a troubling concern the public" in article letter b Law Commission. Sixth, the application of retroactive principle in handling criminal cases of corruption by the Commission.

When examined, the corruptors backlash to the Commission through a judicial review of Law No. 30/2002 cause anxiety and concern various circles, especially for those who concentrated on the eradication of corruption in Indonesia. Because it is not impossible the end of the story behind the corruptors attack resulted in the dissolution of the Commission by the Court. Reflecting on the experience shows Teams Eradicating Corruption (TGTPK) had disbanded by presidential decree forming the test in the Supreme Court (MA). In addition, the Court also noted two times to correct the "bang on" the eradication of corruption through its decision, the Law Commission states can not retroactively effective (retroactively) so that the Commission can not investigate corruption cases before the enactment of Law Commission in 2002, and declared the offense evidentiary material in the follow corruption can no longer be used. Then the question is what steps and strategies that can be done to save the Commission from the threat of liquidation?

The steps and strategies that can be done now to save the Commission is, first, to mobilize support and build the discourse and public opinion that supports the existence of the Commission. Since we all agree that corruption is a crime of extraordinary (extraordinary crime) who require treatment in a way that non-conventional / abnormal. Second, experts and professors who asked to be expert witnesses in court cases judicial review of the Act the Commission can provide insights that justify and support the existence of the Commission. To fight corruption because it takes a law enforcement agency that has authority as the Commission superbody. The second step of this strategy is very urgent to be done as a way out in saving the Commission before the Court decision set. In addition, it is important to do because the Court is a trial court opinion, and checks on the Court did not speak the fact that there are real, but based on the opinions and thoughts, and theories alone are not like conventional courts to prioritize the facts revealed dipersidangan. Finally, the trump card that could save the Commission currently completely in the hands of the guardian of the nine judges of the constitution.

We hope that the judges of the Constitutional Court judges is not a figure like the one described by the great philosopher and constitutional laws of France Montesquieu (1689-1755) the judge who just became a trumpet / mouthpiece Act (de la bouce de la Loi). But the judge who becomes the funnel's sense of justice. Because after the existence of the Commission must be preserved and saved. If not, prepare for this country would be "Heaven" for the corrupt.

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