Jakarta – The Corruption Eradication Commission (KPK) is now working under the chaos of the new law. Several of its provisions are mutually contradictory, meaning that the legal processes that the agency uses could easily face legal challenges. Since last Thursday, the law resulting from a lightning revision at the end of the 2014-2019 House of Representatives (DPR) officially came into force.
The new KPK law automatically came into force because President Joko Widodo did not sign the regulation within 30 days of the DPR passing it. Jokowi also did not issue a presidential regulation in lieu of law as many anti-corruption activists had hoped. As a result, the KPK, which enjoys high levels of trust in opinion polls, will face many obstacles in arresting corrupt officials.
There are dozens of new legal and norms that make the KPK weaker. Among them, the KPK is no longer independent. And the current KPK leadership no longer act as investigators or public prosecutors, and therefore no longer has the right to sign investigation or prosecution orders. Also, KPK investigators must now ask for permission from a board of supervisors – which will be established by the president – if it wants to use wiretaps, or carry out searches or confiscations. It is certain that sting operations, which have been an effective way to catch corruptors, will no longer be easy to organize. There will be a very high risk of leaks.
The law also contains articles that are mutually contradictory. Article 69D states that before the board of supervisors is established, the duties and responsibilities of the KPK are as laid down in the previous law. However, another article states that all questioning, interrogation and prosecution must abide by the provisions of the new law. The inconsistencies in the law mean that the KPK needs to consult with the ministry of justice and human rights about which regulations should be used.
To overcome these legal contradictions, the president has no alternative but to be reminded again to immediately issue a regulation in lieu of law. This is necessary to return the regulations to the old legal norms. The president could show his commitment to the eradication of corruption at the start of his second term of office. This would not be too difficult, especially since a number of senior legal experts have provided a compromise solution that the president could adopt.
The most pressing need is for a strong anti-corruption agency. The results of investigations show that the presence of the KPK can guarantee legal certainty. The KPK is also important to ensure that economic development under Jokowi's administration goes ahead in the proper way. Infrastructure projects involving huge costs need to be monitored by a strong body, namely the KPK. Even more so, given that shortly, Jokowi will start to construct a new capital, which it is claimed will cost around Rp600 trillion. To stop these projects being undermined by corruption, the president should strengthen the KPK, not agree with the process of weakening it.
If the president does not want to issue a regulation in lieu of law, members of the public need to ask for a material test of the new law from the Constitutional Court. This will need time. Remember too that with the composition of constitutional judges – three representing the government, three from the DPR and three from the Supreme Court – there is not much chance that such a challenge would be successful.
As long as these articles that weaken the KPK are still in force, KPK investigators must not give up. They could make use of the unclear nature of some of the contradictory provisions and should not be afraid of facing pre-trial challenges. The Commission needs to maintain its enthusiasm to fight corruption, to the very best of its ability.
Read the Complete Story in this Week's Edition of Tempo English Magazine: https://magz.tempo.co/read/36037/dont-give-up-kpk