T

he pretrial decision of a single judge, Sarpin Rizaldi, in the case of police officer Comr. Gen. Budi Gunawan, has not only baffled the public and given rise to significant controversy, but is also a death knell for justice and law enforcement in the country.

Many observers have difficulty accepting the decision of Sarpin, whose reasoning was at times incomprehensible and misguided.

In his ruling on Feb. 16, his first blunder was to determine that Budi was not a state official as set out in Law No. 28/1999 on clean governance. Yet in reference to Article 11 (a) of Law No. 30/2002 on the Corruption Eradication Commission (KPK), officer Budi is a National Police member, which clearly makes him a law enforcement official, other than a judge, prosecutor or legal practitioner.

Discrepancies such as this are difficult to explain to students of criminal procedure. Pretrial determinations relating to the legality of arrests and detentions are set out in articles 77 to 88 of the Criminal Law Procedures Code (KUHAP).

A single judge of a district court may hear applications from an accused person, relating to the legality or wrongfulness of an arrest and the cessation of an investigation or a prosecution.

Furthermore, articles on compensation and rehabilitation, to be awarded to suspects for wrongful arrests, are set out in articles 95 and 97 of the KUHAP.

No mention is made in these articles regarding the determination of the status of the person as a suspect in a criminal investigation. This is where the judge erred.

The matter of a person'€™s status as a suspect in a criminal investigation has been the subject of legal argument in the '€œChevron bioremediation'€ case.

However, that case was also the subject of controversy and subsequent judicial review by the Judicial Commission.

The Indonesian legal system does not apply the doctrine of precedent as applies in common law jurisdictions.

It is unsurprising therefore if students of criminal law have questions regarding this case. And the answer of law lecturers is always the same '€” that there is a gap between the textbooks and statutes, and the reality.

But this is not a sufficient answer for the legal practitioners of tomorrow.

The implications of this decision must be given serious attention. It opens the door for parties to challenge the validity of their status as suspects in criminal investigations by the police.

This has great potential to limit the freedom of investigators in criminal investigations and the determination of suspects.

In pretrial processes, law enforcers must be thorough and careful in the determination of suspects, so that the priorities of fast, efficient and affordable justice may be achieved.

Criminal prosecutions are long and convoluted affairs in most cases. The ability of suspects to challenge the legality of their determination as a suspect has the potential to create a tidal wave of new applications at the pretrial stage. It would therefore not be forbidden for the two KPK leaders, chairman Abraham Samad and deputy Bambang Widjojanto, to challenge their status as suspects, just as Budi has done, effectively setting the scene for the actual trial to follow.

With regard to the pretrial determination, however, we must move on. Respect for the law is a fundamental principle of law enforcement in this country. Decisions must be regarded as correct until they are overturned by a superior court on appeal.

Sarpin and other judges therefore must consider the principle of law bouche de law loi, that judges act as funnels of the law.

Judges must consider the aspirations of parties to seek justice in a dispute. They must place themselves in a position above all other interests and apply the principles of justice, and free themselves of any other external influences.

Judges therefore must strictly adhere to values set out in the Bangalore Principles of Judicial Conduct adopted as the code of ethics for judges by the Supreme Court and the Judicial Commission in 2009.

However, it is a shame for the profession that not all judges are aware of, or understand, those principles.

Instances of judicial practice that infringe on the code of ethics are therefore not uncommon, and it is not surprising that substantive justice is often subverted to procedural technicalities. This case has arisen due to an inter-institutional conflict between the KPK and the National Police.

That conflict in turn arose from the nomination of a candidate for the position of chief of the National Police '€” a position with the potential to dramatically alter the trajectory of the police force toward being an institution free of corruption and the application of the highest principles of law enforcement.

The nominated candidate was suspected of corrupt practices by the KPK, because of his unexplained and allegedly illegal assets.

Any steps taken by the KPK will not be without risk. Any further steps should minimize potential negative consequences.

The best available option is for the KPK-police conflict to be resolved through legal mechanisms and the courts, rather than through the intervention of President Joko '€œJokowi'€ Widodo.

To those who work against corruption, whether members of the KPK or the National Police, we urge you to support each other in the execution of the highest principles of your duties '€” you are not alone.
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Hery Firmansyah is an observer of criminal law and Adam Fenton is pursuing his PhD at the  Faculty of Law, Charles Darwin University, Australia.