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After court's ruling on Budi, an 'easy out' seen for graft suspects
Jakarta Globe - February 16, 2015
Budi was charged last month by the Corruption Eradication Commission, or KPK, over suspiciously large transactions flowing through his bank account between 2004 and 2006 during his time as the police's human resource development chief.
The transactions totaled at least $54 billion ($4.2 million), far too large a sum for even a high-ranking police officer, raising suspicions that they might be bribes.
But the court on Monday ruled in favor of Budi, dismissing as invalid the KPK's decision to charged Budi. "The decision to name [Budi] as a suspect doesn't have a legally binding basis," said Judge Sarpin Rizaldi.
Judge Sarpin argued that the case was outside the KPK's jurisdiction, saying that Budi's position as human resource development chief meant that he was neither a law enforcer nor a senior public official.
Anti-corruption lawyer Nursyahbani Katjasungkana condemned the ruling, arguing that it effectively presented a get-out clause for members of the police force, widely perceived as the most corrupt government institution in Indonesia.
"The court has made a wrong legal interpretation of what constitutes a law enforcer," she said. By law, all members of the police force can be considered law enforcers, Nursyahbani argued. The KPK also has jurisdiction in graft cases involving sums in excess of Rp 1 billion.
Budi's case "is well within the KPK's jurisdiction," Nursyahbani said. "This will set a bad precedent, serving as a huge and dark roadblock for the fight against corruption."
Indonesia Legal Roundtable researcher Erwin Natosmal Oemar said Sarpin acted beyond his authority, noting that by law, a pretrial hearing was not a venue for a suspect to have the charges against them dismissed. A pretrial hearing is only for challenging the technical aspects of an arrest or confiscation, and not the charge itself. "The ruling is good news for all corruption suspects," he said.
Law expert Abdul Fickhar Hadjar of Jakarta's Trisakti University said the ruling "opens a Pandora's box," giving all those named suspects by the KPK an easy out to challenge the charges against them.
Supriyadi Eddyono, executive director of Institute for Criminal Justice Reform, said the ruling would not only affect cases investigated by the KPK. "The National Police must also brace themselves for a possible influx of pretrial motions set against them," he said.
Former Supreme Court chief justice Harifin Tumpa said the Supreme Court must immediately reverse the ruling. "The Supreme Court must act quickly," he said, adding that the future of Indonesia's fight against corruption "rests in the Supreme Court's hands."
Retaliation will get worse
The president has delayed Budi's inauguration pending the decision from the pretrial hearing, as he seemingly seeks to appease Budi's supporters, notably his own Indonesian Democratic Party of Struggle, or PDI-P.
Joko had earlier signaled he might drop Budi's nomination, but Monday's ruling means he now has few excuses left not to inaugurate Budi.
With the last hurdle for Budi to become the country's top cop cleared, the KPK could face a massive retaliation from the police, warned Indonesia Corruption Watch researcher Agus Sunaryanto.
Since Budi was declared a suspect, the police have charged KPK deputy chairman Bambang Widjojanto with compelling a witness to commit perjury during a 2010 election dispute hearing in which he represented one of the candidates.
KPK chairman Abraham Samad is also under investigation in two separate cases: for violating the KPK's code of ethics – in itself not a criminal matter – by meeting members of the PDI-P, reportedly to discuss chances of him becoming Joko's running mate ahead of last July's election; and doctoring his family card, a state-issued document.
Legal experts are unanimous on the need for an ad hoc ethics tribunal of the KPK, and not the police, to hear the first case; while the second, even if proven, can be considered a misdemeanor at best.
Two other KPK commissioners are also under police investigation. KPK deputy chairman Adnan Pandu Praja is accused of fraudulently acquiring shares in a timber company while advising it during an ownership dispute in 2006; while deputy chairman Zulkarnain is accused of receiving bribes when he was chief prosecutor in East Java province in 2009. The accuser in his case is the former provincial council speaker who Zulkarnain successfully prosecuted and jailed for four years.
ICW researcher Agus said that Budi becoming police chief "will only exacerbate [the police's] retaliation against the KPK."
"If Joko proceeds with inaugurating Budi, that would be the same as ending the KPK," he said. "It's now time for Joko to prove [...] his commitment to corruption eradication."
With dozens of former legislators jailed by the KPK and some serving members calling for the commission's disbandment, the House, considered almost as corrupt as the police force, will also question the KPK's authority in light of Monday's ruling, Agus said.
The House on Monday aired plans to form a special working committee to investigate the ethical violation allegations against KPK chief Abraham in relation to his meeting with the PDI-P officials.
Politics before the public interest
In a study conducted last month by the Indonesian Survey Circle, only 24 percent of respondents believed that Budi should be inaugurated as police chief, while 70 percent said Joko should not swear him in.
Another survey published by the same pollster showed just 45 percent of Indonesians were satisfied with Joko's performance, down drastically from 72 percent in August, just after he was elected.
A study by the Joint Data Center, or PDB, a research division of BeritaSatu Media, with which the Jakarta Globe is affiliated, found that only 15 percent of respondents believed the investigations against the four KPK commissioners were purely legally motivated.
Veteran lawyer Todung Mulya Lubis said Joko faced a dilemma: go with the popular sentiment and side with the KPK, or appease the demands of the political elites who wanted Budi named top cop.
"The pressure on Joko will become bigger and bigger, particularly after Budi's pretrial verdict. It's all up to him, whether he wants what's best for this country or not," Todung said.
Analysts have cited Joko's month-long dithering and lack of a clear stance for exacerbating the fiasco.
Joko reportedly received information that Budi was on the KPK's radar last October, when he submitted a list of potential cabinet appointments to the KPK to vet. The KPK red-flagged Budi and advised him not to consider the police general for a senior government post.
But despite this warning, Joko named Budi as his sole candidate for National Police chief on Jan. 9, prompting an outcry from activists, analysts and the public.
The KPK announced four days later that it had named Budi a corruption suspect. But Joko refused to drop Budi's nomination, saying "I must respect the political process at hand," referring to a confirmation hearing scheduled the next day by the House of Representatives' Commission III, which oversees legal affairs.
The House held – and quickly concluded – a confirmation hearing for Budi, ultimately approving his nomination and endorsing Budi as the next police chief.
Joko has even ignored recommendations made by an ad hoc team he created to weigh in on the debacle. Early this month, the independent team recommended Joko not proceed with inaugurating Budi. Joko has not made a decision since.
Shortly after Monday's ruling, the House quickly wrote a letter to the palace, urging the president to inaugurate Budi.
Police deputy chief Badrodin Haiti said he would respect any decision Joko made. "Whether or not [Budi] will be inaugurated is entirely up to the president," he said.
But Budi's lawyers were less tolerant, saying they would challenge the president if he did not inaugurate their client.
Not over yet
Budi on Monday afternoon arrived at the Bogor Palace, south of Jakarta, to meet the president. He later said in an interview with Metro TV that Joko wanted to congratulate him on the ruling. "I've just met the president to report on the pretrial ruling," Budi said.
"He congratulated me – he said thank God that the truth has been achieved. That's the most interesting thing. My status is innocent and it is a legally binding ruling."
Budi said he would leave the final decision to the president. "What I'm fighting for in this case is justice. Being the police chief is not everything to me," he said.
The KPK is considering appealing the pretrial ruling to the Supreme Court, KPK graft preventions chief Johan Budi said.
"The [KPK] leaders along with the legal bureau and several investigators staged a meeting to decide on what to do following the pretrial ruling," he said. "Some options were discussed but there hasn't been any conclusion on whether we should take the next legal step."
The KPK, Johan said, was still waiting for official notification of the ruling to study the court's decision. "The KPK, as law enforcers, respect this legal process," he added.
Ronald Rofiandri, director of the Legal and Policy Study Center, said that while legally binding, the ruling did not prevent the KPK refiling charges against Budi.
"The KPK is still authorized to investigate this case and rename Budi Gunawan as a suspect," he said. "Aside from that, the KPK can still lodge a case review on the basis that the court has made an error in interpreting the law in its decision."
Source: http://thejakartaglobe.beritasatu.com/news/courts-ruling-budi-easy-seen-graft-suspects/.
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