hor: Romli Atmasasmita
29 August 2019
SAT’S CASSATION VERDICT AND KPK’S FUTURE
Various legal arguments that presented by KPK and some legal experts are only based on an anti-corruption spirit, without carefully considering the facts related to the issuance of the Re-confirmation Letter of Fulfilment (SKL) by SAT, were merely a carelessness. Though it is known that the power of law lies in facts not solely in opinion or the spirit to punish. Even though corruption is deemed as an extraordinary crime that requires extraordinary action and extraordinary authority, however, it also requires solid evidences procedurally, and it would only be effective if it is carried out by extraordinary capable hands in terms of competency, expertise and accountability based on the applicable legal procedures.
The law must not be enforced with “closed eye”, as the symbol of the goddess of justice, which already been justified. Pros and cons in the handling of Bank Indonesia Liquidity Assistance (BLBI)’s case especially to the Bank Dagang Nasional Indonesia (BDNI)/Sjamsul Nursalim (SYN)/Itjih Sjamsul Nursalim (ISN) has been rolling out for almost 20 years; it once handled by the Attorney General’s Office but was ceased in 2004 since it was considered not a criminal case (civil case). KPK were continuing BLBI BDNI case by naming SAT, the former head of the IBRA as a suspect/defendant because he had issued SKL which allegedly has caused state losses and benefited SYN.
The remaining question is how did KPK “take over” the case from the Attorney General’s Office? since both the case’s subject and object are identical, regardless of the time of the incident, and whether KPK has conducted coordination and supervision procedure in accordance with Article 6 of the Law of KPK; until today there is no explanation from KPK.
The Supreme Court's cassation verdict which decided that SAT was acquitted from criminal charges, meant that SAT's action in issuing SKL is not a criminal act. Although there are different opinions from the three members of the judge panel, however the Supreme Court’s verdict that has been declared is a solid decision from the highest judicial authority. In accordance with the Article 263 of the Criminal Procedural Law and the Constitutional Court of Indonesia (MKRI)’s verdict, KPK cannot submit a Case Review (PK) upon an acquittal decision of the Supreme Court’s cassation verdict in SAT’s case; and the same verdict has at the same time released SYN and Mrs. SYN from any criminal charges that have been claimed to be carried out jointly with SAT.
There was a different opinion from a criminal law expert by taking the example of sisminbakum’s case which stated that the participated party/fellow participants can also be prosecuted even if the main perpetrators are acquitted. This opinion was obviously incorrect because Sisminbakum’s case related to the author had been decided by the Supreme Court that acquitted from criminal charges, and the two other defendants’ (not the former of AHU’s general directors) cases were not proceed.
On the other hand, this case is a lesson for the Government to consistently take responsibility as the BLBI policy has turned to be a criminal case, because there is a Release and Discharge (R&D) policy in it which clearly confirmed a guarantee that BLBI recipients would not be prosecuted both criminally and civilly. However, in the reality, the Government actually took their “hands off” with an excuse that the process has entered the field of “pro justitia” [law enforcement]. Also it is a lesson for KPK that criminal cases, especially corruption cases are not easy or can be underestimated, from the beginning it was reminded that corruption was an extraordinary crime that requires extraordinary measure and a complete expertise competence in criminal law, and it was not enough to be solely rely on the spirit of anti-corruption, the solidarity of judges to punish the perpetrators of corruption, or public opinion.
The only solution to this BDNI BLBI case’s dead end is that to other suspects whose cases have not been proceed yet, all their files and cases must be transferred by KPK to the Attorney General’s Office to be ceased according to Article 6 (a) and (b) of the Law of KPK. KPK must respect the rule of law and be honest and dare enough to take that decision without being ashamed to admit their "lost"; it is an attitude from an institution that have an integrity. This occurrence demands an attention from KPK’s leaders in managing the investigations, especially from the pre-investigation up to the declaration of suspect because there is a prohibition to issue an Order to Ceased an Investigation
(SP3) in the Law of KPK. It is known that this prohibition is a weak side of the Law and has caused unnecessary victims to bear the status of suspect all their life. This prohibition was originally intended to prevent SP3 transactions in KPK, hoping that KPK would always uphold the principle of “due diligence” in the investigation process; however, the reality shows only the very opposite, carelessness.
From the empirical experience above, there is a need to further review the KPK’s Law and detailed revision of the investigation process including the authority in wiretapping and “sting-op” which already become the icon of KPK’s success so far, but actually it does not solve the problem of the corruption eradication completely from the top to the bottom. The prevention function is abandoned, defeated by the enforcement function so that we witness corruption like a dirty water that keep on flowing from the top to the bottom of the river unstoppably. Preventing is always better than punishing a crime, it is the proverb in the criminal justice system’s practice which is recognized by experts because it is proven that in practice, punishing is high costly and inefficient and has “polluted” the prison.
Professor (Emeritus) Padjadjaran University / Pasundan University