No presidential warrant required

The Attorney General Office is in the middle of an investigation on an alleged corruption implicating former speaker of the house, Setya Novanto, about his demand of shares at PT Freeport Indonesia (PTFI). Novanto could potentially be charged with article 15 of the Corruption Crimes Law, which reads: “Any person who attempted, assisted, or entered a malicious agreement to commit a crime of corruption, shall be penalized with sentences referred to in article 2, article 3, and article 5 to article 14.”

In order to commence a series of legal proceedings, AGO need to summon Novanto for questioning as a witness in the case. As widely reported, Attorney General M Prasetyo assumed that his office required a presidential warrant in order to question Setya Novanto, referring to article 224 of Law No 17/2014 about Representatives (UU MD3).

Following a ruling by the Constitutional Court (MK) case number 76/PUU-XII/2014, a questioning of an active member of the House of Representatives (DPR) is only possible with a presidential warrant. In its ruling, MK annulled an examination rule which obliged a warrant from the Parliament Council of Honor (MKD) in articles 224 and 245 of UU MD3.

To this extent, would a presidential warrant indeed be necessary in the case of Novanto – a case of corruption? The short answer is no. In a pro justitia examination, AGO should refer to article 245 of UU MD3, which reads:

1. A summon and questioning in an investigation against a member of DPR who is implicated in a criminal violation must receive written warrant from the President.
2. In the event that a written warrant as referred to in paragraph (1) cannot be produced by the Parliamentary Council of Honor within 30 (thirty) days at the most since the request was received, then the summon and questioning for investigation as referred to in paragraph (1) can proceed.
3. The regulation as referred to in paragraph (1) shall be exempt if the member of DPR is:

a. captured in the act of committing a crime;
b. suspected of a criminal offense that is punishable by death or life in prison or a crime against humanity and national security based on sufficient preliminary evidence; or
c. suspected in a special crimes offense.

The articles above explicitly exempt a presidential warrant requirement on special crimes allegations, or in this case, a crime of corruption. Thus, this article becomes a relevant regulation in order to commence examination against Setya Novanto.

On this ground, the directive of article 224 paragraph 5 which provided the basis for AGO's letter to the President for questioning Setya Novanto, in turn becomes irrelevant. Article 224 discussed the Immunity Rights of parliamentarians to prevent them from being criminally charged over their words or actions in relation to their duties and authorities.

The offense charged by AGO against Setya Novanto has no direct relation to his duties and authorities, therefore article 224 cannot provide basis in summoning the suspect. Consequently, AGO no longer need to wait for a presidential warrant to commence their investigation against Setya Novanto.

Before AGO send their summons, it is advisable to raise the status of the case to principal investigation (penyidikan), since article 245 regulates that summons can only commence during principal investigation. A raise of status at AGO can be initiated without prior naming of suspect, because the preliminary investigation (penyelidikan) and principal investigation (penyidikan) phases in AGO are different with the corresponding phases in KPK, where a raise of status in a case can only commence after the suspects are named. AGO doesn't need to worry about the status of their suspect.

A raise of status of the case, however, is a necessity - not only to reflect progress in AGO's investigations, but more importantly, this measure must be taken to ensure a strongly legitimate proceedings at the AGO that anticipates potential question on their investigation process.***

Nazarudin in money laundering spiral

Back in 2011, news surrounding an announcement about parliamentarian Muhammad Nazaruddin as a suspect of corruption rattled the country. The case absorbed people's attention because, in addition to his position at the House of Representatives or DPR, Nazaruddin was also serving as treasurer for the ruling Democrat Party.

At the time, KPK, the Corruption Eradication Commission, named Nazaruddin as suspect in an alleged bribery for the construction a SEA Games Athletes Compound in South Sumatera. KPK's investigation became even more intricate after Nazaruddin fled abroad just before he was named as suspect. Eventually, KPK apprehended Nazaruddin in Cartagena, Colombia, before the Supreme Court (MA) sent him to 7 years in prison.

The story didn't stop there, as KPK also named Nazaruddin as a suspect of money laundering a year after charging him for corruption in the Athletes Compound case. Only, KPK separated the prosecution process for this charge.

After years of being a suspect of money laundering, Nazaruddin is finally taken to court by KPK prosecutors. This time, KPK's indictment against Nazaruddin focus on two points. First, Nazaruddin is charged for receiving 19 checks as gifts that worth IDR 23.1b in total, allegedly from PT Duta Graha Indah. Second, he is charged for receiving cash in the amount of IDR 17.2b, allegedly from PT Nindya Karya.

Prosecutors suspect these gifts to be related to Nazaruddin's position as a member of DPR, where he used his influence to have PT Duta Graha Indah won several government projects in 2010, including construction projects in Universitas Udayana, Universitas Mataram, Universitas Jambi, Seafarer Education and Training Center (BP2IP) in Surabaya, Sungai Dareh General Hospital in Damasraya, Cardiac Center and pavilion of Adam Malik Hospital in Medan, Tropical Inspection Hospital in Surabaya, and Ponorogo General Hospital. Nazaruddin is also suspected of helping PT Nindya Karya secure construction projects at Aceh Rating School as well as Universitas Brawijaya in 2010. As a parliamentarian, he ought not to be involved in arranging government projects, especially with an eye on benefits and rewards.

Prosecutors believe that Nazaruddin have committed acts of money laundering as he placed or transferred the money he received from the above arrangements using company accounts that under the Permai Group, as well as bank accounts on behalf of other people.

In the 175-page indictment, prosecutors pointed out that Nazaruddin managed to bring profit for companies incorporated under the Permai Group in the region of approximately IDR 580.3b. This feat was accomplished by arranging government budget in 2010 to be executed by these companies.

Looking back, the Athletes Compound case turned out to be the starting point for KPK to expose other major corruption scandals, such as the corruption of sports facilities procurement in Hambalang Hills. This particular case implicated the active Minister of Sports at the time, as well as Chairman of Democrat Party, both of whom were subsequently sent to prison.

In the course of the current money laundering charges, KPK is challenged to confiscate assets from Nazaruddin's corruption. The indictment elaborates how these assets were scattered all over, from corporations to party inner circles. The public will expect the new line up of leaders in KPK have what it takes to apprehend all corruption beneficiaries still on the loose.***