By: Firdaus ArifinWriter: 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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