KPK and The Takeovers BLBI Case

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 Tribun Jabar, 17 July 2008.

WITH the case goes on trial on bribery allegations made Artalyta Suryani to the prosecutor's investigative team leader case of Bank Indonesia liquidity assistance (BLBI), Urip Tri Gunawan (UTG), widespread public insistence that the Corruption Eradication Commission (KPK) will soon take over (take over) megakorupsi investigation process BLBI funds from the hands of Attorney General Office (AGO).

Because, AGO proved unable to resolve the cases cost the state hundreds of trillions. Takeovers BLBI case by the Commission from the Attorney General also deserve to be done because almost certainly in the hands of the Attorney General's office would not be the case continues to trial. Was not in a working meeting with the House Commission III, on March 5 last, the Attorney General has confirmed Hendarman Supandji will not reopen the case law porses BLBI.

Then the question, whether the Commission can legally take over the investigation process from the hands BLBI AGO?

When examined in the law, the provisions of the takeover of a corruption case by the Commission is set explicitly in the transitional provisions of Law No. 30 of 2002 on Eradication Commission of Corruption (KPK Law). Article 68 of the Law Commission stated that all action inquiry, investigation, and prosecution of corruption cases that have not completed the legal process during the formation of the Commission may be taken over by the Commission under the provisions in Article 9.

Article 9 of Law Commission regulates the acquisition of some of the reasons of corruption cases by the Commission. Namely, the public reports about corruption was not acted upon, the process of handling corruption cases go on late or delayed delayed without acceptable reasons.

Or handling of corruption cases aimed at protecting the perpetrators of corruption are true, the handling of corruption cases contain elements of corruption, barriers handling corruption cases because of interference from the executive, judicial, or legislative. Or other circumstances which, according to police or prosecutorial considerations, the handling of corruption cases difficult to be carried out both and accountable.

These provisions clearly authorize the Commission to take over corruption cases that have not completed the legal process at the time the Commission was formed. Takeovers are not limited (limitatif) only at a certain stage, but of all legal process, starting from the investigation, the investigation, to prosecution, may be taken over by the Commission.

Associated with the completion of the legal process BLBI case, based on the explanation above, the Commission should not have to hesitate to make the takeover process BLBI cases. Because there is no reason for the Commission to refuse to take over with the pretext of not having the authority.

In addition, the Commission had to dismantle it completely BLBI cases from upstream to downstream is at least divided into three domains. The first aspect, namely the domain-makers and policy framers BLBI involving government officials and banking, as well as government officials for policy makers who are causing dragged wore BLBI cases. Second, the domain of policy implementers, especially actors and actors who disburse funds flow BLBI. Third, the obligor, whether cooperative or not cooperative (naughty).

Another thing that is very important to be done by the Commission is to conduct an investigation of ways and techniques used by the Attorney General in investigating BLBI cases. Therefore, post-arrest prosecutor Urip allegedly accepting bribes BLBI related cases, is very normal that the Commission investigates how the ways in which Attorney General in investigating BLBI case. Do not, during the prosecutor's use and techniques of investigation, which ultimately gives it the legal gaps as well as legal protection for the obligor involved BLBI cases.

With the strengthening of public pressure, the takeover BLBI cases can be immediately announced by the Commission, before the case was continued to grow and overflow to where where.

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Fuel Questionnaire Rights and Impeachment President SBY

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.

PLAN a number of members of the House of Representatives (DPR) to seek clarification about the government's pro-contra increase the price of Fuel (BBM), eventually led to the use of the rights questionnaire House. Once through the process long and winding debate, Parliament finally approved the usage of the rights questionnaire to investigate the policy (policy) that the government raised fuel prices by the end of last May. Approval was obtained after the voting (voting) is open in the House of Representatives plenary session at the Parliament Building, Senayan, Jakarta, Tuesday (24 / 6). From the 360 House members who are present and vote, as many as 233 members of Parliament from eight faction in the House (F-PDIP, F-PPP, F-PAN, F-PKB, F-MCC, F-BPD, M-PBR, F-PDS) supports the usage of the rights questionnaire fuel price hike and the remaining 127 members of Parliament who came from two faction (85 people from the F-PG and the F-42 Democratic Party) rejected the use right of the fuel price hike questionnaire. The success of the usage rights of inquiry by the House fuel price hike was supposed to be greeted with joy, because for the first time in the reign of President Susilo Bambang Yudhoyono (SBY), House of Representatives 2004-2009 period managed to successfully pass a questionnaire rights. Previously, the usage rights of the questionnaire by the Parliament in overseeing the government's policies merely empty discourse style pepesan senayan politicians (read: members of the House) that his endings always end in failure because it was so dominant lobbying and political pressure played by the government.

In addition, with the usage rights have been agreed questionnaire fuel price hike by the House, from this point at least the government should be prepared to explain in a transparent about the reasons for raising fuel prices. Various problems such as oil and gas fields are not passed fuel economy program, alternative energy development programs, systems direct fuel subsidies, rampant smuggling of fuel out of the country, the existence of a broker (broker) of oil to the low level of domestic oil production from year to year will be a number important questions will be asked the Special Committee (Special Committee) surveys the right fuel price hike soon Parliament will be formed.

We all certainly hope the government can best provide answers and explanations to the Special Committee questionnaire right fuel price hike on various issues mentioned above, and not just looking for justification (justification) for policies that have been made, or limited to "counterattack" to the politicians in Senayan. And it's good government explanation was also followed by the delivery of data and facts that really happened and the strategic plan that will be the next to fix the bawdy Marut policy for this oil and gas sector.

Legality Rights Questionnaire

In accordance with the formula contained in Article 20A Paragraph (1) Basic Law (Constitution) in 1945, the House of Representatives as an institution of public representation has three kinds of functions, namely functions legislatures (legislative), the budget function (budgetair), and supervisory functions (control). To perform these various functions, the House is equipped with a variety of rights which are distinguished into two categories: First, rights are institutional (institutional) and secondly, personal rights (personal) each member of the House. Various kinds of institutional rights include the right of Parliament to request information (interpellation), the right of an investigation (questionnaire) and the right to express opinions. As for personal rights of each member of the House include the right to ask questions, the right to propose suggestions and opinions and the right of immunity (Article 20A Paragraph (3) of the 1945 Constitution). As an institutional right of the Parliament, the right questionnaire is part of the oversight function of Parliament. Judging from the aspect of legality and constitutionality, the position of the House of questionnaire rights can be said to have a legal basis is very strong. He is clearly regulated in the 1945 Body Bar, particularly Article 20A Paragraph (2) which states, in carrying out its functions, in addition to the rights regulated in other articles of the Constitution, the House of Representatives has the right of interpellation, the right questionnaire, and right to express opinions.

Then the existence of the rights questionnaire Parliament also explicitly stated in Article 27 point (b) of Law Number 22 Year 2003 concerning the composition Ranks (Susduk) MPR, DPR, DPD, and DPRD, and the Rules and Regulations (Tatib) House of Representatives Article 176 through Article 183. In fact, in the explanation of Article 27 point (b) Law No. 22/2003 on Susduk MPR, DPR, DPD, and DPRD, formulated in a clear and detailed understanding of the rights questionnaire. The understanding is the explanation of the rights questionnaire according to Article 27 point (b) Law No. 22/2003 is the right of Parliament to conduct investigations into government policies and strategic importance and impact on social life and a country that allegedly violated the laws and regulations. However, Law No. 22/2003 does not regulate clearly and in detail about the implementation of the rights questionnaire. Act which regulates in detail the mechanism of the use right of the House inquiry is Law No. 6 / 1954 on the Rights of the House Questionnaire. Law is derived from the time of parliamentary system of government under the Constitution The Year 1950 (UUDS 1950) which until now has never changed and was formally revoked by the formation Act (See: House of Representatives and the President). In fact, the Constitutional Court (MK) in the decision dated March 26, 2004 the past has insisted that the Law No. 6 / 1954 on the Rights of Parliament Questionnaires are still valid and has binding force under the provisions of Article I Rules of the 1945 transition. Thus, there is no any doubt for the House to use the provisions contained in Law No. 6 / 1954 to implement the fuel price hike questionnaire rights.

Presidential Impeachment

Now the real problem is not with the legality or constitutionality of the use right of inquiry by the House fuel price hike, but the political direction of travel surveys right forward fuel price hike. This is mainly related to the issue of whether the usage right of inquiry by the House fuel price hike could lead to the impeachment process (impeachment) President Susilo Bambang Yudhoyono from his position as president?. This issue becomes very important to put forward and studied further, considering the consequences of the usage rights of the questionnaire can be used as the entrance to the House of Representatives to begin the process of presidential impeachment. Of course the record, if in the process of inquiry investigating the rights found in the fuel price hike there were indications that the President has violated the provisions of impeachment the president (impeachment articles) as stated in Article 7A of the 1945 Constitution which, if proven to have violated the law in an act of treason , corruption, bribery, other felonies, or moral turpitude or if it is proven no longer qualifies as president and / or vice president. From the description of the constitutional impeachment criteria mentioned above, it is clear that the government's policy on fuel price increase can not be the basis for the Parliament to conduct the impeachment of President SBY, because a policy can not be used as the basis for the dismissal of a president in his tenure tegah. Using a policy to dismiss the head of government is only known within a patterned system of parliamentary government. However, if it desires in its development and political interests of the House is too large to dismiss the President SBY in the middle of his term, the results of the 1945 changes have provided a mechanism which requires that the House of opinion must be tested first on the forum konstitusionalitasnya basic Constitutional Court (MK)) Section 7B Paragraph 1 of the 1945 Constitution). If the Court decides is proved, then the House will hold a plenary session for the proposal to impeach the President and / or Vice-President of the Assembly (paragraph 5 of Article 7B jo Article 1945 Rules and Regulations 190 House of Representatives).

Finally, I hope the right questionnaire that has been the fuel price hike will be rolled out over the House with the benefit of the petroleum needs of the people of Indonesia and not merely to satisfy the libido senayan power politicians. In addition, the Parliament's decision about the rights of the questionnaire should also be utilized as an effort to comprehensively fix the national energy policy profanity during this. For, if the usage rights to the questionnaire did not touch the fundamental aspect, the community prepared to look negatively on the rights of the fuel price hike questionnaire has been agreed by the House.

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Corruption Prosecutor Behavior in Indonesia

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.

FOR the umpteenth time, returning the law enforcement process in Indonesia should be tarnished by the corrupt behavior of prosecutorial authorities. This time the culprit was Urip Tri Gunawan, a prosecutor is concurrently the Chairman and the Coordinator of Team 35 Attorney General (AGO) in charge of the investigation process for the case of Bank Indonesia liquidity assistance (BLBI) in particular received by Bank Dagang Nasional Indonesia (BDNI) is owned Syamsul Nursalim. He was caught by the Corruption Eradication Commission (KPK) just after receiving the money of U.S. $ 660 thousand, equivalent to 6.1 billion dollars, from Artalyta Syriac, the alleged bribe money in the termination of the settlement process BLBI BDNI afternoon last week, (Kompas, 03/03/2008). This event is certainly very surprising for us all. At the time being, amid vociferous popular demands to the government of President Susilo Bambang Yudhoyono immediately resolve the legal cases that has nearly a decade old and the financial harm the state with a total of hundreds of trillions of rupiah, the prosecutor (attorney) as the institution that had been given the mandate and trust by the people to resolve these cases, even to irregularities in the mode of action accepting bribes from the obligor accomplice "naughty". In addition, the discovery of a bribery case involving prosecutor investigating Team Leader BLBI cases will add a long dark history records of law enforcement process in Indonesia.

We all must agree and agree, that the phenomenon of bribery that occurred in each of the law enforcement process in Indonesia by involving the prosecutor, certainly not a new phenomenon for the first time that happened. If we listened to the back, recorded've uncovered many cases of bribery involving a prosecutor in this beloved republic. One of them, cases of bribery that occurred in the settlement process of the corruption of PT Workers Social Security (Social Security) with the accused former president director of PT Jamsostek Ahmad Djunaidi which occurred in mid-2005 silam.Pada time, two public prosecutor (prosecutor) who dealing with corruption cases is rising bourgeoisie PT Jamsostek Ronni and Cecep Sunarto allegedly received bribes amounting to Rp 550 million. Disclosure of the bribery case, begins with the recognition Ahmad Djunaidi defendants who claim to have given money amounting to Rp 550 million to two rising bourgeoisie prosecutor Cecep Sunarto Ronni and to expedite the trial process itself that is given through an intermediary called Aan Gusnanto Hadi. Negative impacts arising from the prosecutor's behavior was corrupt disappearance values of justice and legal certainty (rechtszaakerheid) and lower levels of public trust in law enforcement. The rise of vigilante action (eigenrichting) conducted by the community is a reflection of public distrust of the legal institutions and law enforcement agencies.

The emergence of the phenomenon of corrupt prosecutors in the clear is not without cause. When examined more in at least five factors are the cause. These five factors namely, First, low levels of quality, moral integrity, credibility and professionalism of the prosecutor in the work carry out their duties. This is all the impact of the error system of recruitment and management of Human Resources (HR) in the institutions of our judiciary. So far, the system and the recruitment pattern of the existing attorney, can be said is not fully based on the principles of professionalism, not yet open (transparent), and the requirements that are not in accordance with the requirements. In addition, the practice of having to pay bribes or some money to be accepted into the prosecutor also pointed out as the cause of the collapse of the morality of law enforcement officers. Second, they (DA) trapped in a pattern of pragmatic life-materialistic hedonism who adored and material possessions. Thus the motto of law enforcement officers struggle fiat justicia roeat coelum, which means, enforce justice, although the sky is falling, has been distorted into "for the money even if justice would be destroyed". As a result, prosecutors often are true role as the spearhead in the law enforcement process, but instead became a rapist vampire vampire-law and exploiting the values of justice from the law itself. Third, professional code of ethics (code of conduct) which is the moral standard of behavior for prosecutors no longer guided at the time of carrying out their duties and authority. In addition, an altruistic motivation to work in legal services was also abandoned, the prosecutors to put forward personal interests than the interests of the people's sense of justice. Fourth, no effective institutional oversight and disciplinary system for attorneys who have so far. This is caused by the implementation of monitoring systems which are influenced by a sense of solidarity to defend and protect their peers (l'esprit de corps). With a sense of solidarity mechanisms resulted in punishment (punishment system) can not walk properly. Fifth, the low level of welfare caused by the prosecutor salary system (remuneration) are still low. With the low remuneration often prosecutors seek the additional money through the sale by the case or a Broker Case (Mark). Then the question is what steps should be done to overcome the various problems mentioned above?.

The steps that can be done today as a way to overcome the corrupt behavior of the prosecutors mentioned above is to make corrections made as directed and comprehensive (total reform) in each sector, which includes, first, reform candidate recruitment mechanisms prosecutors. The need for reform and the design was held back for potential recruitment mechanisms that prosecutors have been due to a professional prosecutor, good quality and integrity are not born by itself, but only through the mechanism of birth and recruitment patterns that put forward the principles of transparency, accountability, participation and objectivity. Mechanism that gives priority to the objective qualifications and ability and integrity is believed to prevent the escape of individuals who are not candidates competent prosecutor and mentally battered. In addition, any candidate receiving the prosecutor should always be closely monitored by the public so as not to create a nuanced recruitment Corruption, Collusion and Nepotism (KKN). Second, reform of institutions and systems of supervision of the prosecutor. Way, the effectiveness of re-assignment and functions supervisory institutions, especially the regulatory institutions that are external and independent as the Commission Attorney. In addition, improved surveillance systems and mechanisms of the prosecutor is also a very important thing to do. Associated with improved surveillance systems and mechanisms should be done in an integrated manner, ie by using a systems approach (systems approach) and institutional approaches (institutional approach). Third, improve the level of welfare and salary (remuneration) for the prosecution. Related to improvements in this sector, should the government and relevant parties (stakeholders) need to establish other minimum standards for attorneys salaries adjusted to the needs of decent living standards and positions in which the prosecutor is placed. In addition, there is need for changes to the allowances and facilities for the prosecution and gives bonuses and rewards (rewards) to the prosecutor who has made achievements in carrying out his work. With the increase in welfare attorney can at least minimize the potential for prosecutors to seek additional money by selling things or become a broker case.

In addition to those three things, other things are also very important to be remedied in order to prevent corrupt behavior of the prosecutor is to improve the legal culture (legal culture) from the community. Culture or habit to always be won or settled the case in ways that are not in accordance with the procedures for legal danmelawan has been very rampant in society, from now on must be abandoned. Because, as long as people do not have the awareness to change the perspective in solving any legal problem, then the prosecutor the opportunity to have an honest, clean, and authoritative will increasingly closed and becomes a mere utopian.

We hope in the near future, the three steps above can be implemented by the Attorney General Hendarman Supandji, because we do not want to prosecutorial agencies continue to be home "comfortable" place of living and the bandits berlindungnya impersonate law enforcement officers. Ending this brief article, the author would like to quote a legal maxim that ever raised by a legal expert who says Taverne, "give me the judge, prosecutors, police and advocates of intelligent and moral, then the law is not perfect even be able to enforce the law and I justice ".

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Ad Hoc Court of Corruption in Indonesia

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.

AT present the fate of the Special Court (adhoc) Corruption (Corruption) on the horns. The existence (existence) during the trial that serves as the last bastion (the last bastions) in the eradication of corruption (corruption demolishing) in Indonesia threatened "broke up" and disappear from the judicial system in this country. Because the House of Representatives (DPR) and the government has not made a discussion of the draft bill (Bill) of the Special Court Corruption. In fact, three-year deadline given by the Constitutional Court (MK) to the Parliament and government to formulate a new Act which will become the legal umbrella (umbrella law) for the establishment of the Special Corruption Court, as stated in the decision of the Constitutional Court No. 012-016-019/PUU-IV/2006 dated December 19, 2006, would soon enter the "injury time" alias ends.

How ironic indeed, at the time was intense, incessant Corruption Eradication Commission (KPK) to chop out all corruption cases, the fate of the Special Court Corruption Commission which is a partner in combating corruption over the years, precisely on the line.
Then, the question is, what steps and strategies that can be done to save the existence of the Special Corruption Court.

At least two alternative steps to save the existence of the Special Corruption Court. First, the House of Representatives and urged the government to quickly complete the process of establishing the Special Court Corruption Act. How, by continuing to mobilize support and build the discourse and public opinion that supports the existence of the Special Court Corruption in the judicial system in Indonesia. In addition, it must be admitted that the existence of the Special Corruption Court has brought an enormous impact on eradication of corruption in

Even from the achievements, the Special Court Corruption proved to be more `` smart `` trapping the robbers in the people's money (read: corrupt) compared with the general court. All the defendants are prosecuted corruption cases at the Special Corruption Court was led to jail. None yet corruption case that the defendant released the Corruption Court. Many state officials who finally got a prison sentence that does not light. Some of these corruption cases that made the purchase helicopters former Aceh governor Abdullah Puteh, cases of corruption in the General Elections Commission (KPU), which involves the Commission Chairman Nazaruddin Samsudin and Mulyana Wira Kusumah, cases of corruption in the Department of Transportation involving the former Chief Financial Relations Directorate General Let the sea Let Muhammad Harun and former Director General of Sea Transportation Secretary Tarsisius Walla, and corruption involving former Bulog Widjanarko Puspoyo (Ex-Kabulog).

However, if the development process of the Special Court Act legislation can not be resolved Corruption Parliament and government in the near future, two alternative measures that can be done to save the existence of the Special Court Corruption is a way to form a replacement government regulation laws (perpu) which regulates the Special Corruption Court. In terms of constitutional, Article 22 UUD 1945 states that: (1) in the case record the force crunch, the president has the right to establish government regulations in lieu law, (2) that government regulation must be approved by the House of Representatives in the next trial, and (3) if not approved by these government regulations shall be revoked.

If we read carefully the results of the 1945 amendment, Article 22 is one of the articles remain unchanged. Judging from the aspect hierarchy of legislation, during the country under the 1945 Constitution - except in the MPR Decree No. III / MPR/2000 who are no longer valid - perpu position parallel to the law. In fact, in Article 9 of Law No. 10 Year 2004 on the Formation of Laws and Regulations (UUP3) explicitly stated that the material content of the regulated perpu with a regulated substance of the Act. However, the problem is not the existence of the Special Court perpu of Corruption, but the reasons could justify the presence of the Special Court Corruption perpu as emergency regulations corruption (noodverordeningsrecht). The reason is very important because Article 22 Paragraph (1) of the 1945 Constitution requires the state or happenings crunch that forced (noodtoestand).

In view Jimly Asshiddiqie (2002), the terms "compelling urgency" This often leads to a widespread interpretation. In practice so far, pretty much defined perpu government, but the circumstances that forced urgency on which the establishment is not clear. This regard, Bagir Manan in his book Political Theory and Constitution (2004) states that "crunch happenings that force" is a constitutive condition on which the president authority to set perpu. If not able to show the real conditions that state, the president has no authority to set perpu. perpu determined without any happenings crunch that forced legally null and void because it violates the principle of legality, which is made without authority. Furthermore, Bagir Manan argued, crunch happenings that force had to show some conditions that cause the crisis or danger is real barriers to the smooth running of government functions. Therefore, the material content of perpu limited to the implementation (administratiefrectelijk) rather than on the field of state administration (staatsrechtelijk). Another consideration, perpu only be determined at the time of the House in recess.

If it holds to the view Bagir Manan, the government should be able to explain the weakness of the existing law has led this country in an emergency. In addition, to determine factors associated with the happenings of force crunch, the president may refer to the consideration items contained in the People's Consultative Assembly Decree Number of Recommendations VIII/MPR/2001 Eradication Policy and Direction of Prevention of Corruption, Collusion and Nepotism (KKN). If the government can explain the situation in question, perpu of Corruption Special Court will not lack constitutional foundation. Happenings reason crunch that forced not only needed to meet the constitutional reasons, but also related to the reasons the government should be presented to Parliament in order to meet this requirement to be approved by law in accordance with the provisions of Article 22 Paragraph (2) of the 1945 Constitution. I believe, by looking at the result of corruption that occurred during this, it's not difficult for the government to explain to Parliament that Indonesia is in a state of emergency corruption.

Finally, we all hope that the two steps above alternatives can be used as a reference for the Parliament and government in making decisions to save the existence of the Special Corruption Court. Because after all, the existence of the Special Court for Corruption obligatory maintained. If not, flying corrupt, end corruption.

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