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Loophole for crooks is Pandora's Box for graft-busters
Jakarta Globe - February 26, 2015
In what is now widely being called the "Sarpin Effect" – after Sarpin Rizaldi, the South Jakarta District Court judge who earlier this month declared flawed the Corruption Eradication Commission's (KPK) naming of police chief nominee Budi Gunawan as a graft suspect – at least three more corruption suspects are mulling taking advantage of the newly opened loophole.
The Supreme Court can stamp out this "bad precedent," says Agustinus Pohan, a criminal law expert from Parahyangan University in Bandung, by issuing an edict barring other judges from following in Sarpin's example.
Although such an edict will not reverse the ruling in the Budi case, "it will at least help stop the negative impact" of the controversial decision, Agustinus said.
He blasted Sarpin's ruling as hindering law enforcement in the country, particularly Indonesia's fight against corruption, with law enforcers now expected to spend much of their time and resources contending with pretrial hearings instead of pursuing criminal charges against offenders.
"We have Judge Sarpin to thank for this. He made his own interpretation [of the law] in Budi Gunawan's pretrial hearing," he said.
Legal experts have since the ruling last week 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.
According to 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.
And so it begins
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 Indonesian Muslim 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.
'A legal accident'
The KPK said on Wednesday that it was bracing for a barrage of legal challenges from individuals it had named suspects in a wide range of corruption cases.
"It's impossible to forbid these corruption suspects from filing a pretrial [motion]," Taufiequrachman Ruki, the acting KPK chairman, said after a meeting with President Joko Widodo, as quoted by Detik.com.
"While a case is still under investigation, suspects may file such a motion at any time. So there's little room for the KPK to avoid them in court. We're putting in extra effort to prepare our legal team and investigators."
But Agustinus said it was the police who would face the most challenges, "because the police force is the institution with the most number of suspects on its books."
Sarpin's ruling "will also be a burden for the courts," he added. "Maybe, in the future, courts will only hear pretrial motions because no cases will actually reach the stage of an indictment."
Former Supreme Court justice Benyamin Mangkudilaga said he was convinced that the Supreme Court would resolve the matter, possibly by overturning Sarpin's decision. "Just wait. The court will ultimately have to sort this controversy out," he said.
Supreme Court spokesman Suhadi, though, said the court could only do so if an aggrieved party, in this case the KPK, filed an appeal against the decision. Without an appeal, he said, the Supreme Court has no power to strike down a lower court's ruling.
The Judiciary Commission, the government body tasked with overseeing the conduct of the country's judges and judiciary, said separately that it would act on a complaint filed by several anti-corruption groups against Sarpin and could summon the controversial judge for questioning next week.
"After we have questioned the plaintiffs and relevant witnesses and obtained a copy of the ruling, we will likely summon Sarpin," said commissioner Anshori Saleh. "We will also ask several experts to weigh in their opinions. It will take time. Summoning someone cannot be done that quickly. Maybe next week."
Meanwhile, KPK interim deputy chairman Johan Budi said the antigraft commission would not stop its ongoing investigations just because of the controversial ruling.
"We respect the [suspects' right to file a] pretrial motion. But I must stress that the motions lodged will not stop the investigation processes currently being conducted," he said. "There has been no decision to temporarily halt any investigation pending a pretrial motion."
Another KPK deputy, Zulkarnain, said the commission was still examining Sarpin's ruling, which he called "a legal accident."
"Of course we want to return the law to its correct state," said Zulkarnain, a former senior prosecutor with the Attorney General's Office. "We are trying to find ways to fix this, but I can't give any details at the moment."
KPK won't stoop to that level
Although acknowledging that the court acted beyond its jurisdiction, prominent lawyer and former justice minister Yusril Ihza Mahendra agreed that a pretrial hearing was a legitimate avenue for suspects to challenge the legality of the investigation against them.
Sarpin's ruling "is a step in the right direction," he said, adding that law enforcers were "also human who can make mistakes or abuse the authority vested in them, so why can't we challenge their decisions?"
"We are no longer living in a colonial era where [law enforcers] can do whatever they want, without fear of repercussion," Yusril said. "Law enforcement should be fair, honest and free of the abuse of authority."
Yusril said the government should amend the KUHAP, last revised in 1980, to grant courts the authority to revoke an individual's suspect status. He also claimed that the antigraft activists who have been among the most critics of the Sarpin ruling were almost certain to invoke the new loophole if it benefited them.
This, however, has not been the case for suspended KPK commissioners Abraham Samad and Bambang Widjojanto, who were named suspects by the police in a series of dubious cold cases that are widely seen as retaliation for the KPK's naming of Budi as a suspect.
Source: http://thejakartaglobe.beritasatu.com/news/loophole-crooks-pandoras-box-graft-busters/.
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