SUMMARY:

On Tuesday, April 28, South Jakarta District Court judge Sihar Purba delivered his verdict on former minister Jero Wacik’s pre-trial motion, rejecting it in its entirety. The judge cited the restrictive nature of Article 77 of the Criminal Law Procedures Code (KUHAP), which explicitly states that the legality of a suspect’s charges cannot be challenged in pre-trial proceedings. The ruling came as a disappointment to the former minister’s supporters, though their reaction was rather moderate. Today’s victory for the Corruption Eradication Commission (KPK) marks the end of a long string of pre-trial challenges that were filed by corruption suspects in an attempt to follow in the footsteps of Budi Gunawan, whose successful legal challenge put a halt to an active graft investigation. An updated pre-trial tracking sheet is attached to this digest.

On Tuesday, April 28, the Constitutional Court issued 3-2 split decision in a case regarding a case prosecuted by the Attorney General’s Office (AGO) against representatives of the oil giant Chevron that found a suspect’s status was indeed a valid and legal matter to be challenged through a pre-trial motion. Additionally, the court found that searches and seizures were also valid subject matter for pre-trial motions. Reading the majority opinion, Constitutional Court judge Anwar Usman explained that the nation’s legal system – criminal prosecutions in particular – had evolved in recent years and that pre-trial hearings constituted a necessary measure of legal redress against the state’s ability to file charges against an individual without the obligation to bring the case to court within a specified period of time. The majority opinion went on to explain that law enforcement must provide at least two pieces of evidence before charges can be brought. In the dissenting opinion, judges I Dewa Gede Palgina and Aswanto Muhammad Alim argued that the prevailing, restrictive clause in the KUHAP should be maintained.

On Monday, April 27, the Jakarta Corruption Court (TIPIKOR) overruled former Jakarta Transportation Agency chief Udar Pristono's objections to his indictment, and ordered the case to proceed. Pristono stands accused of corruption and money laundering related to the procurement of busses for the TransJakarta system. Since early in the investigation, led by the Attorney General’s Office (AGO), Pristono has maintained his innocence and vehemently objected to the seizure of his financial and real estate assets, arguing that his property was legitimately obtained well before the alleged criminal acts were committed.

Despite previous death threats against her and her family, former KPK legal division chief Chatarina Girsing announced on Monday, April 27, that she may return to the anti-graft agency. Speaking at anevent organized by Indonesia Corruption Watch (ICW) on Monday, April 27, Chatarina said that conditions were hard for women in law enforcement, and that the threats to her family had been particularly difficult to handle. However, she added, she remained determined as ever and was keen to return to the KPK. Earlier this month, Chatarina had reached the end of her 10-year rotation with the KPK and was forced to return to the AGO as her home institution. Although the KPK does recruit a number of its own staff, a number of its law enforcement personnel are seconded from the AGO and the National Police. Responding to the KPK’s personnel request, the AGO nominated four candidates, including Chatarina, to head up the anti-graft agency’s legal bureau. The KPK commissioners are expected to select an appropriate individual to fill the vacancy in the coming weeks.

On Tuesday, April 28, inactive KPK Chair Abraham Samad arrived in Makassar, South Sulawesi to undergo questioning by provincial police in connection to charges that he falsified documents on behalf of a young woman in order to help her obtain a passport. South Sulawesi Police reportedly had medical staffon standby in case Samad experienced a repeat of the indigestion that interrupted his previous interrogation. Before going in for questioning, Samad told reporters that he was more than happy to cooperate, as it provided a positive example to the public of his respect for the rule of law.

Kompas reported on Tuesday, April 28, that the National Police had not yet confirmed a date for the briefing on Budi Gunawan’s case. The police’s original briefing, scheduled for April 14, was postponed under heavy public and political pressure once it became clear that the KPK and the Financial Transaction Reports and Analysis Centre (PPATK) were unable to attend. National Police Detectives Division (BARESKRIM) Director Budi Waseso told local media that he was still working to coordinate with the KPK and PPATK to find a mutually convenient time. Waseso’s statement comes less than a week after previous comments that an initial review of the case had concluded that it lacked insufficient evidence to warrant prosecution.

KEY DEVELOPMENTS:

Thursday, April 23 – Inactive KPK Vice Chair Bambang Widjojanto undergoes police questioning

Thursday, April 23 – Budi Waseso confirms police likely to drop case against Budi Gunawan

Thursday, April 23 – State Secretary Pratikno confirms his office will take the lead in forming the KPK selection panel

Thursday, April 23 – DPR Commission III approves Perppu on interim KPK commissioners

Friday, April 24 – Budi Waseso denies Haiti issued instruction to release Bambang Widjojanto

Friday, April 24 – Budi Waseso hints that Denny Indrayana to face additional cases

Friday, April 24 – DPR plenary session approves Perppu

Monday, April 27 –

Tuesday, April 28 – South Jakarta District Court rejects Jero Wacik’s pre-trial motion

Tuesday, April 28 – Constitutional Court rules a suspect’s status may be challenged via pre-trial motion

IMPLICATIONS:

Today’s ruling at the Constitutional Court casts a dark shadow over what was an otherwise positive day in court for the KPK. The news of the anti-graft agency’s win against Jero Wacik came as a relief to many anti-corruption activists who saw the former minister’s case as the final challenge in a wave of pre-trial motions. Since the controversial ruling of judge Sarpin Rizaldi, no other judges on the South Jakarta District Court or any other district court nationwide have upheld a graft defendant’s use of a pre-trial motion to challenge the legality of their criminal charges. Such challenges have been rejected in full, or invalidated as cases went to trial, bringing the court system back into line with the opinion of the overwhelming majority of the legal community that has viewed Sarpin’s decision as alarming and highly irregular.

However, the Constitutional Court’s decision significantly broadens the scope of what is permissible under a pre-trial challenge, potentially opening the floodgates on an already overburdened legal system. The decision is expected to have a more significant impact on the conduct of police investigations, as the KPK’s own internal regulations have very stringent requirements for supporting evidence before charges can be filed. However, the decision is likely going to place the KPK at a significant disadvantage as a smaller agency with a limited legal division which struggles to handle more than one pre-trial challenge at a time. If the number of pre-trial notions does increase, the likely outcome is a reassignment of legal staff away from prosecutorial duties.

Despite today’s developments on the pre-trial motion issue, Sutan Bhatoegana’s case is moving forward in a court where the KPK has never lost a case. The cases against Jero Wacik, as well as those against former Religious Affairs minister Suryadharma Ali, former director general of taxation Hadi Poernomo, and former Bangkalan Regional Representatives Council (DPRD) speaker Fuad Amin Imron are all expected to commence at the Jakarta TIPIKOR in the near term.

The resolve shown by Chatarina Girsing helps to highlight the extremely dedicated nature of KPK staff, even in the face of great adversity and personal risk. Her statements not only serve as a reminder that there is a great deal of work yet to be done but also to help inspire and motivate her colleagues within the embattled anti-graft agency and its supporters. Given the Constitutional Court ruling, and what looks likely to be a second wave of pre-trial motions, the prospect of her return could not be more timely.

As previously suspected, the police continue to stall in announcing a final decision on Budi Gunawan’s case as a lower priority, while they continue to press investigations into allegations nearly a decade old against known corruption-fighters.

Information as of 5:30 p.m. WIB, April 28, 2015