Budi Gunawan’s Pre-Trial Motion Decision

The recent head-turning development in the saga of the Corruption Eradication Commission (“KPK”) and Indonesian National Police (“Polri”) is the South Jakarta District Court’s pre- trial decision related to the claim filed by Police Commissioner General Budi Gunawan against the KPK’s decision to name him as a suspect in a corruption investigation. As background, this issue began when President Joko Widodo nominated Budi Gunawan as the sole candidate for the position of Polri Chief on 10 January 2015. On 13 January, KPK officially named Budi Gunawan as a suspect in a bribery and gratification case – which resulted in the postponement of Budi Gunawan’s inauguration as the Polri Chief (and later on the nomination was cancelled by the President). Budi Gunawan filed a pre-trial motion to the South Jakarta District Court to challenge KPK’s decision to name him as a suspect.

South Jakarta District Court’s Pre-trial Decision

On 16 February, Judge Sarpin Rizaldi (the sole judge) of the South Jakarta District Court gave his decision on the pre-trial motion. Judge Sarpin decided to grant part of Budi Gunawan ‘s pre-trial motion and to declare invalid and not legally binding the instruction letter to name Budi Gunawan as a suspect, the investigation against Budi Gunawan by KPK, Budi Gunawan’s status as a suspect and any further decisions or orders related to Budi Gunawan’s status as suspect. Apart from the questions raised by many on whether the court has the authority to examine the pre-trial motion on the suspect status – based on the Indonesian Criminal Procedures Law, the court’s authority for pre-trial motion is limited to examining the legality of an arrest, detention and termination of investigation or prosecution. A pre-trial hearing could also examine compensation and rehabilitation for a person whose criminal case is terminated at the stage of investigation or prosecution. From a compliance perspective, the implications of Judge Sarpin’s considerations on the subject of KPK’s corruption investigation seems to be more concerning. In the considerations of the pre-trial decision, Judge Sarpin expressed the view that Budi Gunawan, at the time of the alleged corrution acts, held a position as the Head of the Career Development Bureau of the Indonesian Police. People in this position are considered to have only administrative duties, and thus are not law enforcers. Budi Gunawan is also not considered as a state administrator because that position is a second echelon and not a first echelon position. Based on these facts, Judge Sarpin considered that Budi Gunawan could not be subject to a KPK investigation.

Subjects Of KPK Investigation based on the KPK Law and the Anti-Corruption Law

Under Law No. 31/1999 on Eradication of Crimes of Corruption, as amended by Law No. 20/2001 (“Anti-Corruption Law“), to give or promise something with the intention to persuade the recipient to do or not to do something related to his duties that contradict his authority or duties is considered as a crime. In that sense, the “recipient” must be a civil servant, civil administrator or anyone holding a position of authority over any matter of public interest. It is generally accepted that the definition of civil servant is fairly broad and includes employees and officers of corporations financed by or using the facilities of the State or the public. Under Law No. 30 of 2002 on Corruption Eradication Commission (“KPK Law”), KPK is authorized to investigate, indict and prosecute persons suspected of being involved in corruption cases that involve:

  1. law enforcement officials;
  2. state administrators; and
  3. other people related to corruption offences committed by law enforcement officials or state administrators.

Definition of law enforcement officials

As mentioned above, Judge Sarpin considered Budi Gunawan is not a law enforcement official based on the fact that he only had administrative duties, and was not a law enforcer. There is no clear definition of law enforcer in Indonesian laws. However, the term is mentioned in several laws, e.g., Indonesian National Police Law and the Advocates Law. Generally, the police, prosecutors, judges and advocates are considered as law enforcement officials in Indonesia. Judge Sarpin narrowed the definition of law enforcers to officials having the duties of law enforcement, e.g., duties to investigate and prosecute – hence his consideration that Budi Gunawan, who only had administrative duties, is not a law enforcement official. This consideration has been challenged by many law experts and practitioners. They believe that Law No. 2 of 2002 on Polri, particularly articles 2 and 5, clearly stipulates that one of the functions and roles of Polri is as law enforcers, and thus any police officers, including Budi Gunawan should be considered as law enforcement officials.

Definition of state administrator

Judge Sarpin in his consideration also expressed the view that Budi Gunawan is not a state administrator. According to Article 2 of Law No. 28 of 1999 on the Administration of a State that is Clean and Free from Corruption, Collusion and Nepotism, state administrators include the following individuals:

  1. State officials in the State Supreme Institution;
  2. State officials in a High Institution;
  3. Ministers;
  4. Judges;
  5. Other state officials in accordance with the prevailing regulations; and
  6. Other officials having strategic functions in relation to the organization of the state in accordance with the prevailing regulations.

Judge Sarpin considered that Budi Gunawan’s position at the time of the alleged corruption act did not fall into the above categories. For this consideration, experts and anti-corruption activists also argued that Budi Gunawan should be considered as a state administrator. Based on KPK’s explanation, apart from state administrators, subjects of gratification also include civil servants, which should include any members of and civil officials in the army and Polri. Some legal experts in Indonesia also hold the view that Budi Gunawan should be considered as a state administrator because anyone holding a position in a public institution and receiving a salary from the state budget is a state administrator.

Conclusion

It remains to be seen whether or not the above pre-trial decision will affect KPK’s authority (and performance) in investigating gratification/bribery cases considering that the decision seems to provide limitations to the subjects of KPK investigations – even though this limitation should not affect the police’s or the attorney general office’s authority to investigate bribery/gratifications acts based on the Anti-Corruption Law, since those two institutions are not bound to the KPK Law. Since KPK is considered as the spear-head of Indonesia’s effort to fight corruption, it is not surprising that this decision has raised concerns among the Indonesian people.

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