Experts criticize antigraft court

The Jakarta Post , Jakarta | Thu, 10/12/2006 10:12 AM

Ary Hermawan, The Jakarta Post, Jakarta

The Constitutional Court on Wednesday heard testimony from two legal experts who criticized the 2002 law establishing the Corruption Eradication Commission (KPK).

Muzakkir of Indonesian Islamic University in Yogyakarta and Khoirul Huda of Jakarta's Muhammadiyah University were called to testify by corruption convicts Nazaruddin Syamsuddin and Mulyana Wira Kusumah.

Former General Elections Commission chairman Nazaruddin and ex-member Mulyana have asked the Constitutional Court to review the law on the KPK after being convicted by the Anti-Corruption Court of graft.

The petitioners claim the KPK law violates their right to equal treatment, which is guaranteed by the Constitution.

They are challenging the establishment of the Anti-Corruption Court through the law, and the law's authorization of the graft commission to conduct wiretaps of graft suspects.

Muzakkir testified Wednesday that the establishment of the Anti-Corruption Court through the KPK law violated the Constitution. He said the functions and powers of the court were confusing because it had been set up as an auxiliary body to the KPK.

""The focus of the court is confusing because it tries cases not according to their type, but based on the institution dealing with the cases,"" he told the panel of eight judges.

Muzakkir cited the examples of special courts like the juvenile court or human rights court, which were established by special law and tried only certain types of cases.

He said the presence of the Anti-Corruption Court had caused ""legal uncertainty"", because graft suspects could be tried either by this special court or in a regular district court.

The legal expert questioned who and how it was decided a graft suspect would stand trial at the Anti-Corruption Court, because the KPK law did not specify which cases must be investigated by the graft body and which by the Attorney General's Office (AGO).

""It is simply by chance whether a suspect is investigated by the KPK or the AGO,"" he said. ""The problem is that the legal rights entitled to corruption suspects investigated by the KPK and those by the AGO are different.""

Muzakkir also said the KPK's lack of authority to halt an investigation because of insufficient evidence could lead to violations of a suspect's constitutional rights.

Article 40 of the law on the graft commission states that it does not have the power to make a decision on halting an investigation.

Khoirul Huda, in his testimony, questioned the KPK's legal right to use wiretaps to gather information on suspects.

The authority to perform a wiretap should only be given to investigators and not to an institution like the KPK, he said.

He said bugging ran counter to the principle of privacy, and that the government should therefore limit who was authorized to order wiretaps.

KPK members and officials from the Justice and Human Rights Ministry -- both representing the government in the proceedings -- were at odds over the reasons for allowing the graft body to bug suspects.

Testifying at a previous session, KPK members said wiretaps were necessary to collect preliminary evidence, while the ministry officials said in Wednesday's hearing that bugging was allowed only after the KPK had obtained preliminary evidence.

Presiding judge Harjono ordered the government representatives to summarize their conflicting testimony in a written statement.

The hearing was then adjourned with no date set for the next session.

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