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Impact of judge's rule: A weakened antigraft fight
Jakarta Post - February 17, 2015
The decision handed down by the South Jakarta District Court in a pretrial hearing presided solely by controversial judge Sarpin Rizaldi on Monday annulled the suspect status of National Police chief candidate Comr. Gen. Budi Gunawan.
As a pretrial hearing has no authority to determine the validity of a suspect status, as stipulated in the Criminal Code (KUHP), Sarpin's decision will pave the way for future graft suspects to seek similar decisions from pretrial hearings to get off the hook, although the Indonesian judicial system does not apply a principle of precedence as is practiced in the US.
"Sarpin has overstepped the authority of the pretrial hearing. He has violated the existing law. This will jeopardize the fight against graft," said Djoko Sarwoko, a former Supreme Court justice for special crimes and a former Indonesian Judges Association (Ikahi) chairman.
"His verdict may encourage others to follow suit, although we have seen no precedent in the past in which a pretrial decision has been used to justify the outcomes of other hearings," said Djoko, who just retired last year.
Budi, a confidant of President Joko "Jokowi" Widodo's patron Megawati Soekarnoputro, filed for the pretrial hearing on Jan. 20 following the KPK's move to name him a suspect on Jan. 13, less than 24 hours before Budi's confirmation hearing at the House of Representatives.
After naming Budi a suspect, the KPK received threats and attempts to prosecute its leaders on numerous alleged crimes that are suspected to have been engineered by the police amid calls from Jokowi's powerful allies to immediately inaugurate Budi regardless of his status.
Andi Hamzah, a senior criminal law expert and a former member of the team that drafted the KUHP amendment bill, also raised a similar concern, saying that Sarpin's decision would encourage other suspects to file similar petitions.
"If I was the lawyer of Suryadharma Ali [former religious affairs minister and a KPK graft suspect], I would tell him to file a similar pretrial petition," said Andi.
Andi argued that the investigators have the full authority to name a suspect and a pretrial hearing could not overrule the status regardless of the arguments presented by the judge.
"The KUHP does not authorize a pretrial judge to proceed with a petition challenging the suspect-naming procedure like in Budi's case," he said. "Even the draft of the KUHP amendment has not included such an authority."
Judicial Commission (KY) commissioner Eman Suparman said the watchdog would hold a plenary meeting to discuss Sarpin's decision. Eman said that the agency would investigate whether there was a law violation in the court's decision made by the lone judge.
"We will seek clarification from the judge about his decision," he said, adding that even if the KY found violations, the commission could not overrule the decision, as only the Supreme Court had the authority to influence the court's decision.
The KUHP stipulates that the outcome of a pretrial hearing cannot be challenged in a higher court of law.
Sarpin argued that the legality of naming an individual a suspect was an appropriate object of examination in a pretrial hearing. He explained that the determining of Budi as a suspect by the KPK was not valid and not based upon the law because Budi accepted gifts that caused no state losses.
The judge also said the KPK's move to name Budi a suspect was illegal because the commission had no authority to hold an investigation into alleged graft cases involving Budi when he served as the National Police's Career Development Bureau head, an Echelon II position.
Citing Law No. 30/2002 on the KPK, the judge said the antigraft body had the authority to investigate alleged corruption involving state officials with Echelon I positions and law enforcers.
Sarpin said Budi's position in the Career Development Bureau was limited to helping his superiors carry out police career development programs in the National Police's human resources division. In his position Budi was not carrying out duties related to law enforcement.
The KPK has alleged Budi of receiving kickbacks from fellow police officers in order to smooth out their careers.
Source: http://www.thejakartapost.com/news/2015/02/17/impact-judge-s-rule-a-weakened-antigraft-fight.html.
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