The Attorney General’s Role as Dominus Litis in Conflict Between the KPK and the Indonesian National Police
By Adery Ardhan Saputro, SH, Researcher at the Indonesian Justice Monitoring Community, University of Indonesia Faculty of Law (MaPPI FHUI), February 5, 2015
Introduction
The ongoing conflict between two Indonesian law enforcement agencies, the Corruption Eradication Commission (KPK) and the Indonesian National Police (Polri), was ignited by the KPK’s decision to name Police Commissioner General Budi Gunawan1 a suspect in a corruption investigation. Notably, Gunawan was also a candidate for promotion to national police chief, as announced by President Joko Widodo and approved by Indonesia’s House of Representatives Commission III.
Subsequently, the Indonesian National Police declared KPK Deputy Head Bambang Widjojanto a suspect in a criminal investigation related to allegations he obtained false statements from a witness, in breach of Articles 242 and 55 of Indonesia’s Criminal Code, during a case before the Constitutional Court. The case involved a dispute over the 2010 election of the District Head of West Kotawaringin Regency in Central Kalimantan Province.
Widjojanto’s arrest triggered strong reactions from anti-corruption activists and the public, who gathered at the KPK’s head office and vehemently protested what was widely perceived as an arbitrary abuse of power by the police. The resulting wave of protest and controversy even destabilized the country. For example, Major General Fuad Basya, head of the Indonesian Armed Forces’ public relations unit, stated that “the military is prepared to secure the KPK’s offices should the Police decide to raid the Commission.” Meanwhile, President Joko Widodo refrained from taking significant action, fearing accusations of improper intervention in a law enforcement matter.
Friction between investigative agencies is not unique to Indonesia, as other countries, like the United States, have seen disputes over the authority to investigate cases between agencies such as the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA). However, these disputes do not typically lead to serious problems in the US because of the hierarchical authority of both agencies under the US Attorney General. The US Attorney General plays a pivotal role in the American criminal justice system, and a situation akin to the current “KPK vs. POLRI” controversy would be unlikely to occur in the United States.
The Role and Responsibilities of the Attorney General in Indonesia’s Code of Criminal Procedure
In the Indonesian context, although the Attorney General’s Office is generally considered the dominus litis, it has not played a decisive role as a mediator in this controversy, clearly indicated by the statement from the head of the Attorney General’s public information office, Tony Spontana. According to Spontana, “We are guided solely by the Code of Criminal Procedure, and we do not wish to become embroiled in the polemic. The Attorney General’s Office is currently preparing to issue a directive appointing an investigating prosecutor to monitor developments in the investigation.”
From Spontana’s statement, several conclusions can be drawn. 1. The Attorney General’s Office can only monitor and issue directives based on the outcome of a case file examination prepared by the Police. 2. The Code of Criminal Procedure prohibits the Attorney General’s Office from directly participating in a police investigation. 3. As per the Code of Criminal Procedure, the relationship between the police as investigators and the Attorney General’s Office is limited to functional coordination. So Spontana’s argument aligns with the principles of the Code of Criminal Procedure. This means that the Attorney General’s authority is restricted to monitoring police investigations and does not extend to supervising police investigations into a case. The principle of functional differentiation embedded in the Code of Criminal Procedure underlies the recurrent friction between the two investigative agencies.
When it comes to the police case against KPK Commissioner Bambang Widjojanto, the principle of functional differentiation is likely to lead to significant issues in the future, particularly for the Attorney General’s Office. An Attorney General’s Office that conducts investigations solely based on case files, without being allowed to carry out direct investigations, can hinder the presentation of evidence in court proceedings. Assuming the case file for the Bambang Widjojanto investigation is considered complete by the Attorney General’s Office, it would issue a P21 Form based on the evidence obtained during the investigation. If during the trial phase it turns out that some evidence was obtained unlawfully, or that witness statements had been coerced, this could lead to sub-optimal provision of evidence by the prosecution and a reduction in the evidence available to establish the guilt of an accused.
So there is a need for a stronger connection between public prosecutors and cases involving accused individuals, extending beyond merely examining case files or providing guidance to investigators. Prosecutors should be able to conduct investigations directly (opsporing) or, at the very least, conduct follow-up investigations (nasporing) related to inquiries already undertaken by investigators. This would enable prosecutors to determine how evidence has been obtained, and whether a suspect is truly worth prosecuting.
In contrast, the Attorney General’s Office’s position and duties as dominus litis are clearly defined in the provisions of the Revised Indonesian Code (Herziene Indonesisch Reglement or HIR). While the HIR was in effect, an investigation was an integral part of a prosecution. This authority established the Prosecuting Investigator as both the coordinator of an investigation and someone with the ability to conduct their own investigations. Consequently, the Attorney General’s Office played a crucial role in the entire process of criminal law enforcement from start to finish.
Despite the repeal of the HIR by the Code of Criminal Procedure, the Attorney General’s Office’s authority to conduct investigations (opsporing) was indirectly reaffirmed. This is due to Article 27, paragraph (1), subparagraph (d) of Law No. 5/1991 regarding the Attorney General’s Office, which states that: “(1) In the area of crime, the attorney general’s office has the task of and authority to: …(d) complete a particular case file and for this, supplementary inquiries can be conducted before being transferred to the court which, in their conduct, are coordinated by the investigator.”
This provision explicitly states that the attorney general has the authority to conduct additional inquiries (nasporing). It confirms that the attorney general continues to be the agency in control of a case even during the investigation stage. Article 30, paragraph (1), subparagraph (d) of Law 16/2004 concerning the Indonesian Attorney General also supports this authority. Therefore, the attorney general does have the power to carry out additional inquiries (nasporing) and, as a result, the authority to ensure that investigators’ work is conducted properly.
Though the Criminal Procedure Code appears to limit the attorney general’s role to functional coordination in investigations conducted by the police, Article 30, paragraph (1), subparagraph (d) of Law No. 16/2004 enables the Attorney General’s Office to go beyond monitoring the results of police investigations and examining case files based solely on witness testimony. In reality, the Attorney General’s Office can play a more significant role in KPK Commissioner Bambang Widjojanto’s case through additional inquiries into relevant witnesses or suspects.
However, there are still problems in Indonesia’s criminal justice system, as exemplified by potential conflicts between law enforcement agencies when handling investigations. The current dispute reveals that the differentiation and independence of each law enforcement agency in handling cases represent a conceptual mistake. Therefore, changes are needed in Indonesia’s criminal justice system to reduce friction between law enforcement institutions.
Reforming the Integrated Criminal Justice System
The proposed Criminal Procedure Code Bill has accommodated changes in the roles and duties of the Attorney General’s Office. This is evident in Article 46, paragraphs (3) and (4).
Article 46, paragraph (3): If the public prosecutor identifies deficiencies in a case file, they may request the investigator to conduct additional investigations by issuing direct instructions or conduct additional inquiries before transferring the case to the court, with the implementation coordinated with the investigator.
Article 46, paragraph (4): In subsequent case inquiries, if necessary for legal action to facilitate court hearings or the execution of judicial decisions, the public prosecutor can take legal action themselves or request investigation assistance.
These two articles confirm that the public prosecutor assumes control of a case at the investigation stage, even if the case is managed by a different agency. However, it should be noted that despite the expanded authority of the attorney general in coordinating investigations, the Bill does not transform the attorney general into a mediator in cases where there is a clash of sectoral egos among law enforcement agencies.
To address this problem, solutions can be sought by looking at criminal justice systems in other countries. For instance: 1. In the Netherlands, the coordination between the police and prosecutors is governed by the Special Powers of Investigation Act (Wet Bijzondere opsporingsbevoegdheden or BOB), which designates the public prosecutor’s office as the agency leading a criminal investigation. 2. Changing the hierarchy and position of the attorney general in Indonesia to resemble the system in the United States, where the attorney general simultaneously serves as the Minister of Justice representing the highest authority in controlling a case and utilizes a single investigation warrant (Surat Perintah Pemeriksaan or SPP).
It is hoped that the dispute between the Corruption Eradication Commission and the Indonesian National Police will serve as a catalyst for improvements in Indonesia’s criminal justice system. Furthermore, it is expected that it will demonstrate the role of the Indonesian Attorney General as the dominus litis agency with authority over criminal cases. Ultimately, reforming the criminal justice system and its future operation should be rooted solely in legal perspectives, devoid of political influences.
22 October, 2015
In related news:
- Prabowo Inaugurates Red and White Cabinet Members Tomorrow https://nasional.tempo.co/read/1931084/prabowo-lantik-anggota-kabinet-merah-putih-besok
- Muzani on whether BG will join Prabowo’s cabinet: He’s an expert in his field https://m.kumparan.com/kumparannews/muzani-soal-bg-bakal-masuk-kabinet-prabowo-dia-ahli-di-bidangnya-23kho4mL426
- Budi Gunawan summoned to Hambalang, Hasto: Not as part of PDIP https://tirto.id/budi-gunawan-dipanggil-ke-hambalang-hasto-bukan-bagian-pdip-g4Uh
- Budi Gunawan Turns Up At Hambalang, PDIP: Not As Envoy For Megawati https://tirto.id/budi-gunawan-hadir-di-hambalang-pdip-bukan-utusan-megawati-g4Ny
Also see:
Footnotes:
- Budi Gunawan – https://en.wikipedia.org/wiki/Budi_Gunawan ↩︎
Stories From Indonesia 
Leave a Reply