Constitutional Court election: Forgery or a serious crime?
If there are any institutions the public can still have faith in in terms of law enforcement in Indonesia, they are the Corruption Eradication Commission (KPK) and the Constitutional Court (MK): Both are comparatively new and insulated from the chronic, New Order mentality, while also carrying with them part of the spirit of the reform movement that began with the downfall of Soeharto in 1998. But both these institutions may also be eroding because of external pressure.
The Constitutional Court is supposed to be relatively waterproof. Unlike the KPK, it doesn’t send people to prison and there are no direct, short-term or pragmatic monetary interests at stake in the business of invalidating laws. However, there are always loopholes. If the court had been consistent in its function in dealing with the ideals, that is, in making sure the Constitution is compatible with laws, the court could be off the hook. Unfortunately, politicians wanted the court to meddle in election dispute cases and this is where the havoc began.
Lately, several scandals have rocked the Constitutional Court. In one of them, two officials were accused of issuing a forged letter that was later used as justification to get an allegedly ineligible candidate a seat in the House of Representatives. The interesting part of this case has been the tendency focus on the “supply” side of the crime and to frame it merely as “forgery” instead of an election crime or a corruption case.
In corruption cases, there is always a buyer and a seller. The seller must be someone with authority, while the buyer is a beneficiary who receives “corrupt” services in exchange for money. If a case involves a general election dispute then common sense dictates that some politicians at the end of the pipeline must have been the ultimate beneficiaries of the crime and therefore acted as buyers of the service. However, so far, no one from the “demand side” in this election scandal has been apprehended.
Limiting investigations to the supply side alone is possible if the case is framed as forgery. A forged letter was issued by some court officers and the letter was then used by the election commission as the basis to determine that a candidate has the right to win a House seat. The forgery was the crime and the case is closed. Of course, there is the question of motive, i.e., why would anyone bother to forge a letter and risk getting caught? But such motives do not need to be established.
In contrast, if the case is framed as corruption, authorities would have to show that there was a flow of money etc, which is a difficult task indeed, and would require proof of the identities of buyers and their role in the whole case. Meanwhile, if the case is framed as an election crime; a more systematic investigation of the demand side would be required in order to qualify the act as one of the criminal offenses listed in the election law.
Many judges and former judges at the Constitutional Court have expressed their disappointment at how this case investigation has unfolded, although they also note that it is too early to make any judgments. But they have many reasons to be disappointed.
First, it was the Constitutional Court chief himself who reported the case to the police. Two years had passed and no significant action had been taken. An investigation was commenced, but to the shock of many people it was the same official whose signature was forged who was recently declared a suspect.
Second, with the focus on the supply side, investigations and the following criminal court proceedings will hover only around the Constitutional Court. The court’s internal administration and the ethics of its officers will be pointed out as the only culprits. The investigation and the follow-up trials will focus only on that issue and will never touch the “external forces”. This will also weaken the Court’s morale.
Third, even if the Court eventually manages to fill in the holes within its administrative system, the external forces luring the Court’s officers to commit crimes will remain. Indonesia’s general elections are notorious for being costly affairs, in which many candidates bet everything they own — including their sanity — to win elections. Hot money is always involved. Even if this administrative gap were filled, in the next election another loophole could still be found.
Finally, the curtailment of the case on the supply side may require innocent and honest Court officers to be dragged into the whole process in order to fit the whole frame. These people may have only been present at the wrong time and in the wrong place but as a consequence they will risk facing the miscarriage of justice. This will absolutely weaken the morale of officers at the Constitutional Court.
It may still be too early to drop judgments as this case is still developing. But there is a public interest in monitoring how this case unfolds and to ensure the police that the public support is with them. At the same time, the public will demand their accountability in their handling of the case. While we wait as the case progresses, the “red flags” above can be used by the public as a framework in safeguarding and ensuring that justice shall be served.
The writer is founder of the Center for Law Information.