LRWD I N D O N E S I A
Law Reform Weekly Digest
Edition 34/October/2013
In This Issue
The Importance of Learning The Constitution: An Urge From Vice Mayor of Jakarta to the Minister of Home Affairs
Legal Discourse
Criminal Procedural Law Revision and Corruption Eradication
Legal PolicyIndonesia LRWD is published by Indonesian Centre for Law and Policy
Studies (www.pshk.or.id).
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Legal Discourse
The Importance of Learning The Constitution: An Urge From Vice Mayor of Jakarta to the Minister of Home Affairs
Polemic occurred between Minister of Home Affairs, Gamawan Fauzi and Vice Governor of DKI Jakarta, Ahok. The polemic started when the Minister requested Governor of DKI, Jokowi to evaluate the placement of Lurah (village head) Susan Jasmine Zulkifli in Lenteng Agung, South Jakarta. It is related with the effort of some people, doing demonstration, insiting that Lurah Susan should be moved to other area because of her religion does not “matched with local character”.
Gamawan Fauzi mentioned about the principle of "the right man on the right place, or the right man on the right job". Responding to this, Ahok said that Gamawan need to learn the Constitution. This very statement then gets some negative replies from Gamawan’s side. Minister Gamawan said that by telling him to learn the Constitution, Ahok is too arrogant.
Commissioner of the National Commission on Human Rights (Komnas HAM), Roichatul Aswidah Rashid, supports Jokowi-Ahok’s position. She said that the evaluation of Lurah Susan’s position should not be based on her religion. Governor Jokowi has decided that he will not follow the Minister’s advice and he will do the regular evaluation, based on the Government Index Survey (IGS ) every six month.
Article 28E , Article 28I ( 1 ) , and Article 29 ( 2) of the 1945 Indonesian Constitution (UUD 1945) has guarantee the Freedom of Religion. Article 4 of the Law on Human Rights year 1999 stressed that the right to religion, is a human right that can not be reduced under any circumstances. More over, since 2005 Indonesia has ratified the International Covenant on Civil and Political Rights (ICCPR), which provides clear protection of
fundamental freedoms.
But in practice there are still many violations of religious freedom. Setara Institute monitor that from January – June 2013, there are 122 events of violations of freedom of religion, consisting of 160 forms of actions spread in 16 provinces of Indonesia. From the data we can see that not only Minister Gamawan Fauzi is in need to learn the Constitution. (EN)
Supreme Court
Supreme Court Regulation No.
2/2012 Not Fully Implemented Yet Among Law Enforcement Agency
Supreme Court Decree No. 139/
KMA/SK/VIII/2013 As A Strategic
Policy
One of the biggest challenges in eradicating corruption in Indonesia is to eradicate corruption in law enforcement sector. Several actions have been taken, with several prosecutions in convicting corrupt law enforcement personnel. Despite the conviction, corruption in law enforcement sector is not individual problem; it is structural problem in Indonesia legal system.
Corruption as structural problem needs to be resolved by structural reform on the legal system. In law sector, one measure that strategically important is by revising the Criminal Procedural Code of Indonesia. The current Criminal Procedural Code is giving huge power to law enforcement agencies without proper accountability mechanism. The low accountability and huge power is
recipe for corruption. Thus, the criminal procedural coder revision needs to focus on increasing the accountability of law enforcement agencies.
Ironically, the revision of criminal procedural code has been opposed by anti-corruption movement. One objection made by the Movement is that the criminal procedural code revision is potentially restrain KPK power. Certanintly this cannot be justified, if there is several exception for KPK or on corruption cases, it should be accommodated. However, it cannot stop the revision of criminal procedural code, especially if the substance of the revision is to increase accountability in criminal process. (GAT)
Legal Policy
Criminal Procedural Law Revision and Corruption Eradication
The implementation of Supreme Court Regulation (Peraturan MA/Perma) No. 2/2012 on petty crimes fines apparently wasn’t implemented the way it should be since there are no changes in the way cases been handled. Such condition overcrowd most state penitentiary despite the notion that the regulation already being discussed in the special forum (Mahkejapol) consists of Supreme Court, State Attorney, Ministry of Justice and the police.
The Supreme Court Regulation No. 2/2012 regulates the increasing fine for some articles on petty crimes in the Criminal Code (KUHP). The increasing fine mentioned in article 364 (petty theft), for example is raised from Rp.
250 fine up to Rp. 2.500.000. The regulation intends to
separate the implementation from felony cases to misdemeanor (petty crimes is considered as
misdemeanor). Cases processing in misdemeanor cases are done much quicker than felonies, according to article 205-2011 The Criminal Procedural Law; and open to out of court settlement as an option.
It should be noted that the police force and the attorney general office seems lack the initiative to put into action what the Supreme Court Regulation has regulates. If such action couldn’t be expected from both the police and the attorney general office; another take is by forming a Presidential Regulation with the same subject;
along with encouraging the role of judges to make a better decision in such misdemeanor cases. (RMF) Supreme Court
Supreme Court Regulation No. 2/2012 Not Fully Implemented Yet Among Law Enforcement Agency
On 28th August 2013 Chief Justice of the Supreme Court enacted the Supreme Court Decree No. 139/KMA/SK/
VIIII/2013 on the Renewal Mutation, Promotion and Management Process For Ad-Hoc Judges in Special and Regular Court. The decree is considered as part of initiative taken by the Supreme Court to have their bureaucratic reform along with the needs to make further adjustments to pursue institutional target.
Mutation and promotion management are highly connected with judges welfare; along with salary digits.
The level of comfort between places as part of tour of duty from one judge to another surely makes a different.
By the enactment of the decree by the Supreme Court, it should be take into account that the Supreme Court acknowledges promotion policy among judges as
incentives. Some important pointers from the decree to be taken into notion are: (1) on the transparency of disciplinary process that could take effect on judge’s promotion. (2) the rulings on selecting officials in court (3) promotion management of ad-hoc judges are more clearer. With the decree enactment hopefully promotion and mutation management for judges become more accountable to avoid corruption practices in the Supreme Court. (FN)
Supreme Court
