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Indonesia: Court Rules on Presidential Role in Investigating Legislators

(Sept. 28, 2015) On September 22, 2015, the Constitutional Court of Indonesia issued a ruling that establishes that law enforcement officers must have the approval of the President of the country before they can begin any criminal investigations of the country’s legislators. (Court Rules President, Not House, Must Approve Criminal Probes into Legislators, JAKARTA GLOBE (Sept. 22, 2015); Putusan Nomor 83/PUU-XII/2014 [Decision No. 83/PUU-XII/2014], Constitutional Court website (Sept. 22, 2015).)

The ruling referred to article 245 of the Law on Legislative Bodies. (Law No. 27, 2009, revised by Law 17, 2014, Dewan Perwakilan Rakyat [House of Representatives] website (in Indonesian).) That article required that the authorities seek permission from the House Honor before questioning any legislator; any summons would become invalid if not approved by the Tribunal within 30 days. (Constance Johnson, Indonesia: Law Amended to Give Lawmakers Added Protection, GLOBAL LEGAL MONITOR (July 21, 2014).)

Speaking about article 245 having created a role for the House Honor Tribunal, Justice Arief Hidayat of the Constitutional Court said that the provision was unconstitutional. He read aloud the Court’s verdict in the hearing and stated, “[a]rticle 245, section 1, therefore now reads, ‘Summonses and requests for written statements for the purpose of investigations into members of the House involved in crimes must first gain written approval from the president.’” (Court Rules President, Not House, Must Approve Criminal Probe into Legislators, supra.)

Controversy over How Legislators May Be Investigated

The original provision was controversial at the time it was passed in 2014, with assertions that it would give legislators the chance to act with impunity.  Abdullah Dahlan of Indonesian Corruption Watch said in 2014, “[t]his will allow lawmakers implicated in criminal cases to buy time [and perhaps] avoid the legal process.” (Margareth S. Aritonang, New Law Shields House Members from Corruption Investigations, JAKARTA POST (July 14, 2014).)

The Court decision has also been criticized. Anggara, a researcher from the Institute for Criminal Justice Reform, one of the organizations that had brought a challenge to the 2014 law’s provision, called the decision “devastating” and went on to say, “[c]an you imagine law enforcers having to wait 30 days for written permission from the president so they can start investigating and summoning lawmakers allegedly involved in a crime?.” He suggested that presidential approval be required only if an arrest were imminent, given that an arrest would disrupt the legislator’s carrying out of his or her public duties. (Experts Slam ‘Devastating’ Court Ruling on Criminal Investigations Involving Legislators, JAKARTA GLOBE (Sept. 22, 2015).)

A more moderate view was expressed by Refly Harun, a constitutional law expert from the University of Indonesia, who thought the ruling could have advantages if the President supported law enforcement efforts. He stated that without appropriate support for law enforcement, the requirement for presidential approval “will only be in the way of the investigation” and added, “[the] ruling doesn’t highlight investigations against lawmakers who are believed to be involved in extraordinary crime such as corruption, drugs and terrorism. This could create conflict … .” (Id.) One possible conflict he singled out was with the authority of the Corruption Eradication Commission, a federal government body with the right to investigate possible cases of corruption. Presumably, following the ruling, Harun argued, a legislator could assert that Commission investigators had violated the Law on Legislative Bodies as interpreted by the Constitutional Court. Harun expressed the desire to see a judicial review of the Commission’s legal authority that would result in an explicit exception for that body’s activities. (Id.)