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The ‘superbodies’ of rule of law and anti-corruption: the MK and the KPK under SBY Simon Butt Sydney Law School

Anti-corruption reforms

2013 2012 2011 2010 2009 2008 2007 2006 2005 2004

Series 1 114 118 100 110 111 126 143 130 137 133

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Transparency International Corruption Perceptions Index: Indonesia

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Anti-corruption Commission (KPK)

Rationale: cannot clean a floor with a dirty broom.

Investigates and prosecutes significant corruption cases (including those involving law enforcement).

Take over cases from ordinary police and prosecutors that were being poorly handled.

Sole Corruption Court (Tipikor Court) established in Jakarta. Five judge panel (3 ad hoc). Exclusively handled KPK cases.

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KPK case selection

Under first KPK commissioner Taufiequrachman Ruki (2003-2007)), KPK pursued largely ‘small fry’, primarily regional officials and civil servants.

Accused of choosing only cases it could win.

But achieved 100% conviction rate(!).

From 2009 the KPK began pursuing more powerful figures, including senior law police and parliamentarians.

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High profile scalps (in no particular order)

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Setbacks and KPK vulnerabilities

Pursuing bigger fish prompted much bigger pushback.

Police v KPK Suspended once charged Removed once prosecuted (even if

not found guilty). Unilateral and unreviewable. Powers used to suspend/remove

Antasari, Bibit, Chandra when charged with offences.

(Constitutional Court invalidated these rules.)

Parliamentarians v KPK DPR can modify statutes, affecting

KPK and Tipikor Court’s powers and effectiveness.

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Antasari

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Bibit and Chandra

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Plot revealed KPK becomes more popular

Law 46 of 2009

Deliberated while KPK investing parliamentarians. Establishes Tipikor Courts in provincial capitals. Good thing? Not enough ad hoc judges (only one out of 289 passed SC’s test

in 2013, but needs 60). Many have majority career judges. Ordinary prosecutors can prosecute in regional Tipikor courts.

(2004-2012, ordinary prosecutors handled almost 10,000 corruption cases, KPK only 233).

Full circle? Future threats.

Wiretapping power Removal of power to investigate/prosecute.

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Role of SBY

Critical public statements, including: Regarding the KPK, I must caution it. Power must not go unchecked. This KPK has become an incredible power holder. It seems to be accountable only to God. Be careful

Emergency Law to fill vacancies on the KPK.

Team of Eight.

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Constitutional Court

The functions keeping it busy:

Constitutional review (more than 600 cases)

Electoral disputes • 1800 legislative

disputes.

• Hundreds of Pemilukada, but no more?

Popularity of Court increasing?

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Constitutional review cases

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2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013

Cases 4 35 28 29 27 34 51 61 94 97 110

Granted 0 11 10 8 4 10 15 17 21 30 22

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Legislative election disputes

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2004 2009 2014

Applications 273 650 903

Granted 38 70 23

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‘Landmark’ constitutional review decisions

KTP case (2009)

Open list case (2008)

Left over vote case (2008)

Presidential/legislative elections together (2014)

Wedlock case (2013)

Direct management by state of natural resources (2012)

Constitutional recognition of adat land law? (2012)

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Chief Justices 1: Jimly Asshiddiqie (2003-2008).

‘Mulai dari nol’

Major improvement on existing Courts.

Independent and ‘clean’.

Reasoned decisions based on Constitution.

‘Academic’ (discursive, argumentative).

‘Active’ (perhaps most active in Asia, except for South Korea). Did not avoid hard political cases.

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1: Jimly Asshiddiqie (2003-2008).

No enforcement powers, but largely respected by government. (This was by no means certain at time Court began operating.)

Built public popularity.

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2: Mahfud (2008-early 2013).

Increased ‘activism’.

But less concerned with legal argument and constitutional basis? Shorter decisions (average 3,387 words compared with 4,534 under Jimly).

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2: Mahfud (2008-early 2013).

Court at most active when changes legislation by declaring statutes ‘conditionally constitutional’.

First happened while Jimly was still CJ.

Court decides that a law enacted by parliament looks like it might breach the Constitution. But instead of just invalidating it, allows it to remain on the books provided interpreted in a particular way that is constitutional.

Film Censorship case (2007): Court allowed censorship provisions to remain in force ‘provided that, in their implementation [by the Censorship Board], they are given a new spirit to uphold democracy and human rights’.

Initially appeared as strategic ‘deference’ to parliament. (Or fears of being ignored/crushed?)

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2: Mahfud (2008-early 2013).

But under Mahfud:

1. Conditionally unconstitutional.

2. More regularly issued (15 under Jimly, 54 under Mahfud).

3. Far more proscriptive.

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2: Mahfud (2008-early 2013)

Wedlock case

43(1) of the Marriage Law: ’A child born out of marriage has a civil

legal relationship with its mother and her family.’

Article 43(1) conditionally unconstitutional – that is, unconstitutional

unless given the following meaning:

A child born out of marriage has a civil legal relationship with its mother and

her family, and its father and his family [provided that paternity] can be

proven by science and technology and/or another form of legally-recognised

evidence that the father has a blood relationship with the child.

Usurping function of legislature or practical necessity (presuming that parliament will take long time to act, if at all)?

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3. Akil Mochtar (April-October 2013)

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4. Hamdan Zoelva

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Setbacks

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Legislative attempts to reduce its power in 2011.

Akil Mochtar.

Recovered through handling of 2014 electoral disputes, particularly the presidential elections?