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In overture to AGO, a sign of the KPK's submission in Budi Gunawan case
Jakarta Globe - March 2, 2015
Activists were quick to criticize the decision, warning that the move could pave the way for other graft suspects to get away from facing justice and hinder Indonesia's fight against graft.
"The handover is a severe blow to the KPK" – Corruption Eradication Commission – "as well as a cause for celebration for those seeking to weaken the KPK," Miko Ginting, a researcher with the Center for Legal and Policy Studies, or PSHK, said on Monday.
Miko said the KPK should have pressed on with its case against Budi – whom President Joko Widodo nominated for National Police chief in January before withdrawing him last month – despite a court ruling faulting the KPK's basis for naming Budi a bribery and money-laundering suspect.
He said the KPK still had legal avenues to continue pursuing the case, including seeking a case review of the controversial ruling with the Supreme Court, or starting a fresh investigation against Budi.
Budi was charged in connection with irregular transactions amounting to millions of dollars flowing through his personal bank accounts between 2003 and 2006.
But the lone judge hearing the pretrial motion filed by Budi against his status as a criminal suspect, Sarpin Rizaldi, argued that the KPK had no jurisdiction over the police general, whom he described as "not being a law enforcer" at the time of the alleged money laundering.
Miko said that regardless of whether Budi qualified as a legitimate antigraft target, the KPK did have jurisdiction in cases where the alleged graft had a monetary value exceeding Rp 1 billion ($77,190).
Legal experts have also pointed out that the court's decision to revoke Budi's suspect status is not a legally recognized move under the Criminal Code Procedures, or KUHAP.
Under the code, a pretrial motion is only authorized to hear technical aspects of an investigation, such as the processes leading to arrest and seizure of assets, and not weigh on the substance of the criminal charge itself, which can only be determined after the indictment of the suspect.
The court also did not rule out the possibility of the KPK starting a fresh investigation against Budi.
Miko said there was a "great chance" that the AGO, marred with numerous corruption cases involving its own prosecutors, would ultimately drop Budi's case.
Some 2,000 cases forwarded by the KPK to the AGO have never gone to trial, according to Hifdzil Alim, a researcher with Gadjah Mada University's Anti-Corruption Study Center (Pukat UGM).
Buckling under pressure
The handover of Budi's case will likely tarnish the reputation of the KPK, which has never lost a case in its 10-year-history, Miko said, adding that the latest move showed the KPK was buckling under pressure from the police.
Since the KPK charged Budi on Jan. 13, the police have dug up a series of cold cases, some a decade old, against KPK leaders and investigators.
Police are pursuing 26 separate cases and have thus far charged two of the KPK's four commissioners on three separate criminal cases, forcing them to be suspended from active duty.
Suspended KPK chairman Abraham Samad has been charged with allegedly helping a prominent graft convict receive a reduced sentence last year in exchange for political backing from the convict's party to support Abraham's alleged bid to become vice president.
In a separate case, the South Sulawesi Police have charged Abraham with document forgery after he allegedly falsified a document to help a woman, Feriyani Lim, apply for a passport in 2007.
Suspended deputy chief Bambang Widjojanto is accused of compelling witnesses to commit perjury in an election dispute case that he handled as a lawyer in 2010.
Interim KPK commissioner Johan Budi appeared to hint on Monday that handing over Budi's case to the AGO was done largely to stop the wave of retaliatory attacks by the police against the KPK.
"The situation inside the KPK is uncomfortable [...] because of all of these [police] summonses. Therefore, steps must be taken quickly by the KPK," he said at the AGO headquarters in South Jakarta.
Another interim KPK commissioner, Indriyanto Seno Adji, said the handover was the legal option that "carries the least amount of risk" for the KPK. He added the KPK had decided against seeking a case review against Judge Sarpin's ruling because it was not applicable in the current case.
Sarpin effect to worsen
KPK interim chairman Taufiequrachman Ruki said the KPK "has lost [Budi's] case. But it doesn't mean we are giving up the fight against corruption, because there is a lot of cases we must handle."
But legal experts contend that this will only embolden corruption suspects who already see Sarpin's controversial ruling as a precedent to have the charges against them dropped before they are even indicted in a court, in what is now widely being called the "Sarpin Effect."
On Thursday, former Democratic Party legislator Sutan Bhatoegana became the latest graft suspect to invoke his right to file a pretrial motion against his booking and arrest by the KPK.
Sutan, who was arrested by the KPK on Feb. 2 after being named a suspect in May 2014 for allegedly taking kickbacks from companies bidding for government oil contracts, has appointed Razman Arif Nasution, who represented Budi during his pretrial hearing, to represent him in court.
The pretrial motion is the third to be filed against the KPK since the South Jakarta District Court ruled in favor of Budi on Feb. 16. Former religious affairs minister Suryadharma Ali and Fuad Amin Imron, a former speaker of district legislature in Bangkalan, East Java, are also preparing to file pretrial motions.
Suryadharma was charged last May with embezzling funds meant for sending pilgrims on the hajj. Fuad was arrested in December on charges of bribery and money-laundering in connection with his position in the local legislature.
"The handover will have too big an effect [...] toward the fight against corruption," Supriyadi W. Eddyono, the executive director of the Institute for Criminal Justice Reform, said on Monday.
"By handing over [the case to the AGO] the KPK is essentially agreeing with the ruling that it has no jurisdiction to investigate suspicious police accounts or similar cases."
He urged the KPK to seek a case review with the Supreme Court, which he said would likely reverse the ruling to stamp out the "bad precedent" set by Sarpin.
Attorney General H.M. Prasetyo indicated that his office was indeed likely to drop the case against Budi.
"The basis [for a possible dropping] is the pretrial ruling that stated that [Budi's] naming as a suspect was invalid," he said. "We will examine [the KPK's] investigation because the prosecutors' office is not the one conducting the investigation so we don't know what [the case] is about."
Prasetyo argued that the only reason the KPK handed over Budi's investigation was because the KPK, by law, cannot drop a case. "Meanwhile [Sarpin's ruling] is already final and binding and must be executed," he said.
Prasetyo also said his office would not take into consideration an ongoing probe by the Judicial Commission, the government's watchdog for the judiciary, into Sarpin's ruling, noting that the commission could not overrule the court's decision even if it found it to be questionable.
"We will not be influenced by it. The court has already ruled [the KPK's] investigation to be invalid. So this [ruling] has to be acted upon quickly," Prasetyo said.
Cases against KPK to continue
While seemingly intent to let Budi off the hook, Prasetyo said his office would work closely with the police on the cases against the KPK's Abraham and Bambang. "The cases against the KPK leaders [...] will be handled differently from [Budi's], because in Budi's case there is already a pretrial ruling. The cases against [Abraham and Bambang] will continue," he said.
National Police deputy chief Comr. Gen. Badrodin Haiti, who is Joko's new nominee for police chief, said separately that the police would not drop their investigations into the 24 other KPK officials and investigators unless the criminal complaints against them – most of them filed by people affiliated with Joko's party – were withdrawn. "Otherwise the police will face lawsuits from the plaintiffs," he said.
Badrodin also denied that the investigations were a tit-for-tat over Budi being charged by the KPK, saying that if it were up to him, he would cease the investigations against the KPK officials. "We will work to see that these cases are not continued by trying to convince the plaintiffs," he said.
Source: http://thejakartaglobe.beritasatu.com/news/in-overture-to-ago-a-sign-of-the-kpks-submission/.
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