Again, Corruption Convict Found Traveling

This week the public is shocked by a viral photo of Gayus Tambunan posing in a restaurant. The former public official at the Tax Directorate who was sent to 30 years in prison for tax embezzlement and money laundering was found wandering out of prison, again.

It's not the first time Gayus was caught on camera leisuring outside the prison walls. A few years back, Gayus was photographed by journalists while enjoying a tennis tournament in Bali.

http://news.detik.com/berita/3023909/penjelasan-ditjen-pas-soal-heboh-foto-gayus-tambunan-di-restoran

Minister of Law and Human Rights Yasonna Laoly confirmed that Gayus, who is suppose to serve his sentence in Sukamiskin Penitentiary, Bandung, asked for leave permission on Wednesday, September 9, 2015, in order to attend his divorce hearing at the Religion Court of North Jakarta.

http://www.cnnindonesia.com/nasional/20150921171448-12-80098/menkumham-gayus-keluar-tahanan-untuk-hadiri-sidang-cerai

According to Government Regulation No. 32/1999 about the Terms and Procedures to Implement Inmate Rights, a prisoner is allowed to leave the prison only on exceptional circumstances for a maximum of 24 hours without staying the night out. These 'exceptional circumstances' were elaborated in Article 52 point b of the regulation, including to attend death or serious illness of a immediate family member (husband, wife, father, mother, child, brother or sister), wedding of son or daughter, or distribution of inheritance.

Referring to this article, Gayus' excuse to attend his divorce hearing could not be justified, since the event is not included as an exceptional circumstances that have been defined by law.

In this particular case, it is also interesting to observe Gayus can bribe up to hundreds of millions of rupiah to wander out of prison. During the previous episode, when he was only serving four months of his sentence at the Police Mobile Brigade Command (Mako Brimob) Prison in July 2010, Gayus bribed Prison Warden Commissioner Iwan Siswanto Rp 10 million to go out for three days. The following month, in August 2010, Gayus paid Rp 70 million to go out 19 days. Then in October 2010, Gayus presented Commissioner Iwan Siswanto with Rp 114 million to leave for a full month, 31 days.

(http://nasional.tempo.co/read/news/2015/09/22/063702689/tarif-pelesiran-gayus-ke-luar-penjara-sampai-ratusan-juta)

Warden of Sukamiskin Penitentiary Edi Kurniadi admitted that, aside from from wandering off from his permitted destinations, Gayus also have a habit of returning late to prison.

http://news.metrotvnews.com/read/2015/09/24/434398/cctv-di-sekitaran-ruang-tahanan-gayus

For his prison offenses, Gayus is to be punished with isolation and transfer based on permit violation and according to Law No. 12/1995 about the Correctional System. Gayus was found violating correctional security and order in Article 47 paragraph 2.

To send Gayus to isolation and to transfer him from Sukamiskin to Gunung Sindur Narcotics Penitentiary in Bogor would not be adequate. If the government have a serious political will to put order in penitentiaries, the Ministry of Law and Human Right should take concrete measures. First and foremost, it is essential to improve internal human resources capacity at correctional facilities, particularly regarding the integrity of prison staffs.

At the same time, Minister Yasonna must take firm action in Gayus' case, including to perform a thorough investigation about the incident, especially after there have been public statements admitting procedural mistakes. Police Chief General Badrodin Haiti have also pledged support for this investigation with guarantee of a legal process if Gayus turn out to wander out of prison illegally.

http://www.rmol.co/read/2015/09/25/218582/Jenderal-Badrodin-Haiti:-Polisi-Pasti-Bergerak-Bila-Gayus-Keluar-Penjara-Secara-Ilegal-

In order to restore the reputation of his Ministry, Yasonna must take tangible action if any of his personnel is found to have violated the law. The public will fully support a justified sanction, even if the Prison Warden should be removed from his post in order to uphold the law and provide a deterrent effect to all correctional facilities.***

Freeloading Norm in MK Ruling

An appalling verdict came out from the halls of the Constitutional Court (MK) earlier this week. On September 22, MK announced a ruling about Law on MPR (People's Consultative Assembly/General Chamber), DPR (People's Representative Council/Parliament), DPRD (Local Representative Council/City Council) and DPD (Regional Representative Council/Senate). Henceforth, in order to commence investigation against these representatives, law enforcement offices would require a Presidential warrant.

According to Ruling No. 76/PUU-XII/2014, MK partly granted an appeal filed by Supriyadi Eddyono Widodo and ICJR (Institute for Criminal Justice Reform). In essence, MK ruled that whenever law enforcement offices need to question a representative who is implicated in a criminal case, they are required to secure a Presidential warrant which can last for 30 days. This ruling essentially transfer warranting authority from the Representative's Council of Honor (MKD) to the President.

http://icjr.or.id/icjr-kritik-putusan-pasal-perlindungan-anggota-dpr-putusan-tidak-menjawab-persoalan-hukum/

While still appreciating MK's judgment, a number of law practitioners expressed their disappointment to this ruling. Among them is Prof. Dr. Jimly Asshiddiqie, S.H, who is also the first Chairman of MK. According to Jimly, this ruling will expand the chains of bureaucracy. In the midst of so much challenges to combat corruption and to build a good governance, this ruling adds more bureaucratic hindrance and will surely add to the President's tasks.

http://nasional.republika.co.id/berita/nasional/politik/15/09/23/nv4xar335-jimly-kecewa-anggota-dpr-diperiksa-usai-izin-presiden

Seeing this verdict from the corruption fighting perspective, there are several critical notes to be observed. First, this ruling comes from a petition of the appellant, which never suggested or mentioned anything about a written Presidential warrant to initiate investigation. Therefore, it would not be an exaggeration if the public suspect there's a freeloading norm within this ruling.

Second, MK's judgment would interfere with judicial independence because a legal process would be dependent to an executive warrant. The requirement of a Presidential warrant in order to commence investigation would impede judicial process and, indirectly, intervene with law enforcement mechanisms. More alarmingly, a Presidential warrant can potentially erode the interpretation of article 24 paragraph 1 of the 1945 Constitution that guarantee independence and non-intervention of the Indonesian judicial system.

Third, the ruling from this judicial review goes against the authority of MK. MK is mandated to be a negative legislator. When MK gives a warranting authority to the President, they add a norm and becomes a positive legislator, an authority that is contrary to their actual mandate.

Four, this ruling creates a judicial ambiguity, since it did not gave a time limit to issue the warrant. Thus, as long as the President of RI do not issue a written warrant, then all legal process against a representative who was named as a suspect will be suspended.

The controversies about a presidential warrant being required to commence investigation against public officials is nothing new. A few years back, in ruling No. 73/PUU-IX/2011, MK revoked an article that require a presidential warrant to commence investigation on regional leaders (governors/mayors/regents). MK argued that the article contradicted the principle of equality before the law. This time, when MK added a phrase about presidential warrant in its new ruling, it is only demonstrating inconsistency and forgetfulnesss of history.***

WEEKLY SUMMARY

• Minister of Law and Human Rights Yasonna Laoly must take firm measures about Gayus Tambunan wandering out of Sukamiskin Prison - http://antikorupsi.info/Zwv

• ICW believe that Law No. 14/2008 is an important instrument in preventing corruption - http://antikorupsi.info/Ziw

• Pertamina responded to public calls to reduce the 12kg LPG price, although the reduction was far from expectations - http://antikorupsi.info/ZiZ

• MK ruling about Presidential warrant for legal inquiry against parliamentarians will impede law enforcement amid corruption offenses done by members of the House of Representative (DPR) – http://antikorupsi.info/ZiJ

• Lack of diligence from political parties to provide public information about their financial reports, organizational structures, or activity reports is backfiring. This habit is subject of a petition at the Information Commission – http://antikorupsi.info/Zii

STATUS UPDATES

September 21

• Prosecutors seek light punishment for two suspects on corruption of National Sports Committee (KONI) grant fund for Persiba Bantul
• Case file of Bambang Widjojanto received by Attorney General Office (AGO)
• Corruption Court panel of judges sentenced former Director of CV Arga Mulia, Tri Wahyudi to 18 months in prison

September 22

• AGO detained a doctor involved in alleged corruption of medical tools procurement at Sultan Thaha Saifuddin State Hospital (RSUD) in Tebo Regent, Jambi
• AGO of West Java received case files of Bandung City grant fund corruption (fiscal year 2012) that implicates the city councilmen

September 23

• Jero Wacik charged with multiple articles: using Minister Operational Fund for personal matters, forcing subordinates to collect illegal fees, and accepting gratification

September 25

• Rahudman Harahap, Mayor of Medan in 2010-2013, will resume trial in alleged corruption of PT Kereta Api land management. Rahudman was previously released by Medan Corruption Court, but prosecutors appealed at the Supreme Court where he was sentenced to 5 years in prison and Rp 200m in fines (or extra 6 months in prison). Rahudman contested the sentence and filed for Supreme Review (PK).