THE KPK IS BEING PUNISHED FOR DOING ITS JOB!

Tensions Mount Between Indonesian Police and the Corruption Eradication Commission (KPK)

Existing tension between the Indonesian Corruption Eradication Commission (Komisi Pemberantasan Korupsi – KPK) and the Indonesian Police Force (Polri) erupted after Polri summoned KPK Commissioners and personnel to be questioned on September 14 and 15. After several hours of questioning, averaging 9 hours per day over two days, the Police declared on September 16 that two of the Commissioners, Mr. Bibit Samad Rianto and Mr. Chandra M. Hamzah will be investigated as suspects in cases of alleged abuses of power. The investigation relates to applications made by the KPK to Immigration officials to issue cekal orders (an order to prohibit an individual from leaving the country) to stop the movement of suspected corruptors.

Recent developments indicate a systematic attempt by high ranking police officers, some of whom are currently under investigation by the KPK, to protect their own interests by attempting to discredit the KPK and simultaneously limit the KPK’s scope of powers to conduct instigations and surveillance. The Indonesian civil society movement notes these developments with alarm and calls on the Government of Susilo Bambang Yudhoyono to take immediate and decisive action to:

(i) intervene in the naked attempts by the Police to disrupt the lawful investigative activities of the KPK and;
(ii)restore the KPK and the Corruption Court to their position as independent institutions by taking urgent action to resolve the Corruption Court bill issue.

1.Background
In the latest round of jabs between the Police and the KPK, the Police issued a press release on 16 September 2009 incorrectly stating that their current investigation into the KPK also involves allegations of bribery against the KPK Commissioners. The facts bear out that the Polri investigation thus far relates exclusively to the allegations of abuses of power. The investigation has not been extended to include any other allegations.

The current Polri investigation was launched during an extremely politicized stand-off between the KPK and the Police. The standoff was sparked by the arrest and subsequent investigation in May 2009 of non-active KPK Commissioner Antasari Azhar over the murder of State Owned Enterprise PT Putra Rajawali Banjaran Director Nasruddin Zulkarnaen. Mr. Azhar is not part of the CICAK movement, as his involvement in the Nasruddin Zulkarnaen murder case is an entirely personal issue.

2.Police – KPK Conflict: Key Legal Elements
The ability of Polri to declare a Commissioner of the KPK a suspect is a key element in the unfolding story.  We note:

• The Law on the KPK states that once a Commissioner is declared a suspect, he/she automatically becomes a ‘non-active Commissioner’ and can no longer discharge the functions of a Commissioner.
• Once a Commissioner is charged with a crime, he/she is terminated as a KPK Commissioner and a new Commissioner must be selected through the procedures as set out in the Law on the KPK.

We further note:

• Declaring a Commissioner to be a suspect is relatively risk-free for Polri;
• An SPPP letter (document issued to stop an investigation) can be issued with minimal process to stop an investigation when it becomes clear that a case was initiated without sufficient evidence;
• In comparison, the Law on the KPK offers the KPK no such mechanism to stop an investigation – if the KPK declares an individual to be a suspect of a corruption crime, it must pursue the case until the Court of Corruption Crimes reaches a decision. Historically, there are clear statistical records proving that the KPK only pursues a case once it is confident it has collected enough evidence (i.e. a 100% conviction rate).

3. Rumours and Facts: Bank Century and Polri
It is clear that certain elements within Polri are determined to undermine, discredit and ultimately ‘clip the wings’ of the KPK.

IT IS NOT A COINCIDENCE that the same high ranking officers within Polri who have initiated a siege against the KPK, have in fact been targeted by the KPK in preliminary investigations concerning the Bank Century corruption case.

Polri’s summoning of KPK Commissioners and personnel for questioning was based on statements that Susno Duadji, the Chief of Bareskrim (Crime Investigation Division, Polri), was reputed to have made to the media, saying he “…knows that he is being surveilled” and is “…only playing with them  [the KPK]“.  Duadji has been named by the media as one of the key Polri officers connected with the Bank Century case. A recent issue of highly regarded Tempo magazine (14 September 2009) includes in-depth analysis of the alleged links between Duadji and the Bank Century case (http://www.tempointeractive.com).

Duadji earlier commented that “gecko lizards should not challenge crocodiles”, alluding to his somewhat anthropomorphic view of the position of the KPK relative to Polri.

4. CICAK (gecko lizard) – Love Indonesia, Love KPK
Duadji’s less than discrete comments spurred the birth of CICAK (Love Indonesia, Love KPK), a movement that supports the KPK’s anti-corruption mission.  Other public statements have attracted the ire of civil society movements such as CICAK and Indonesia Corruption Watch (ICW). Shortly after Polri’s summons of KPK Commissioners and Personnel, Hendarman Supandji, the Chief Prosecutor, said that “…once Polri and Kejagung (the Attorney General’s Office) combine forces, that’s no longer a crocodile, that’s Godzilla.”

5. Why is Polri Investigating KPK Commissioners?
Polri’s investigation of KPK Commissioners has invited disbelief and outrage from civil society and outside observers alike. The cornerstone of Polri’s investigation, the alleged abuse of power, is simply a pretense. There is no debate that KPK is well within its statutory powers to make cekal orders.

The abuse of power alleged by Polri relates to two cekal orders. The first pertains to conglomerate executive Djoko Tjandra, who was prohibited from leaving the country due to his alleged connection to the corruption case of prosecutor Urip Tri Gunawan. The case involved bribery by a convict, Ms. Artalita, a well known ‘fixer’ for certain circles in Jakarta.

The cekal order was eventually revoked, as the KPK could not find a money trail from or to Djoko Tjandra. However, Mr. Tjandra is currently of unknown whereabouts, and is believed to have left Indonesia.

The second cekal order pertains to Anggoro Widjojo, a suspect in a bribery case being pursued by the KPK. The case involves the PT Masaro corporation, which was revealed to have bribed Yusuf Emir Faisal. Faisal was convicted in the Tanjung Api-Api corruption case.

The KPK cekal orders clearly do not amount to an abuse of power.  The orders arose out of a genuine need for the KPK to make full use of all its lawful authority during legitimate anti-corruption investigations.

6. Media and Legal Experts Speak Out
On 16 September 2009, The Jakarta Globe published an article citing various legal experts questioning the Polri’s true motives. In that article, Eddy Hiariej of the Gajah Mada University in Jogjakarta said, “The Law is not open to multiple interpretations. One substantial element missing from the case is the misuse of power itself. Mr. Hiariej further added that “…the issuance of the travel bans was related to corruption cases investigated by the KPK. The Police cannot make a criminal case against the KPK officials for doing their job”.

Hasril Hartanto, a legal expert from Universitas Indonesia noted that “…the KPK has all the necessary legal standing for requesting the travel bans [from the directorate of immigration]… the KPK even has a standard operating procedure for the bans. If police were to make a case out of the bans, they should go to the Constitutional Court and try to have the Law annulled”.

The Jakarta Globe article also stated that civil society organizations are scrutinizing the Polri investigation. On Wednesday, the Indonesian Anti-Corruption Society filed a motion with the South Jakarta District court to have the charges against the KPK commisisoners dismissed for lack of evidence. Emerson Yuntho, deputy chairman of Indonesia Corruption Watch, said that Polri had filed “…ridiculous charges” in this case.

7. Systematic Weakening of Anti-corruption Mechanisms
President Susilo Bambang Yudhoyono has conspicuously avoided involvement to bring the escalating Polri-KPK frictions under control. This is despite calls by civil society for the National Leader to act on his election commitment to continue the fight against corruption. To his credit, the President did bow to public pressure on September 16 and called for a delay of the passage of the new anti-corruption bills, which have been heavily criticized by civil society for severely weakening efforts to fight corruption in Indonesia.

The current Anti-corruption bill proposes that:

• the Attorney General’s Office act as the single window for the prosecution of corruption cases. This strips the KPK of its current authority in this regard.
• the bill erases previous provisions concerning the KPK’s authority to conduct wire-tapping and conversation recording, stripping them of this vital investigative tool.
• more disturbing is a provision that criminalizes ‘fraudulent reporting’ of corruption cases, which may have implications on the media’s ability to discuss cases of corruption in Indonesia.

Only two political parties (Partai Keadilan Sejahtera and Partai Kebangkitan Bangsa) involved in the parliamentary team that is working on the bill are actually fighting this transparent attempt to weaken the nation’s anti-corruption instruments. It is baffling to note that the President’s political platform, Partai Demokrat, is in fact supporting the parliamentary effort to weaken the KPK.

8. Perpu amounts to a Complete Loss of Independence for KPK
On 17 September, the President announced that he will create and issue a Perpu (a Government Decree Replacing a Law) to appoint temporary replacements for the 3 non-active Commissioners. This move has been criticized by Emerson Yuntho of Indonesia Corruption Watch, who stated before the media that “If the Perpu is issued, it is a violation of the Law on the KPK”. Emerson explained that according to the Law on the KPK, Commissioners must be selected and appointed by a selection committee, and that the process is multi-tiered to ensure the independence of the KPK and the non-interference by the government. He added that “these multi-tiered processes would be bypassed by the Perpu, which directly appoints Commissioners. Direct appointments are deeply suspect because conflicts of interests will not be countered by a public test of the persons, and because the public will essentially be barred from participation.”

The Perpu would be a blatant violation of prevailing laws and traditions where the previous KPK Commissioners were selected on merit after a rigorous process involving representatives of almost all members of society. What President Yudhoyono is seeking to do is to nominate the temporary guardianship of the KPK during the current Polri investigation by issuing an emergency Law; however, in contemplating such a scenario, President Yudhoyono is  clearly retreating from his previous public position in which he declared he would not intervene with the investigation process. Even more worryingly, the President’s plan indicates his unconditional support of the questionable and controversial investigation of the Police, and it appears he is using the pretext provided by the Polri investigation to wrest control of the previously independent Anti-Corruption Commission.

9. Polri Pretense
Within this overall context, it is clear that Polri’s current investigation into the abuse of power of KPK Commissioners is simply a pretense. The Polri investigation itself represents a form of abuse of power, exploiting the ease with which the Police can initiate investigations quickly and without oversight. Exploiting a provision in the Law on the KPK that provides that Commissioners which become suspects in a Police investigation must be rendered non-active, Polri has taken a dirty but transparent swipe at the KPK.

The Polri investigations, along with the parliament’s apparent dismantling of the KPK and weakening of the general movement to fight corruption in Indonesia, indicate  a strong resistance by vested interests against the recent successes of law enforcement against corruption in Indonesia, spearheaded by the KPK.

10. The KPK has a 100% Conviction Rate
To date, the KPK has prosecuted 115 corruption cases, of which 91 have been decided in court and are considered ‘inkracht‘, or of legally binding status. The aforementioned inability of the KPK to issue an SPPP order to stop an investigation has required the KPK to be extraordinarily dilligent in collecting evidence before it even starts an investigation. The KPK has a 100% conviction rate.

The KPK’s success in anti-corruption cases hinges on the two main pillars of its constitutionally entrenched authority:
1.    Surveillance – the ability to conduct wire-tapping and intercept communications, and;
2.    Independence – the ability to run its own prosecution independent of the Attorney General’s Office.

These are the same pillars that are being attacked by certain parliamentarians and high ranking Polri officers as they feel their own interests and those of their associates are threatened.

The KPK is being punished for doing its job!

Now is the Time for Action if Indonesia wants to preserve anti corruption efforts

Tags: commission, corruption, KPK, police, polri