CONSTITUTIONAL COURT DECLARES ANTI-CORRUPTION

C O N F I D E N T I A L SECTION 01 OF 02 JAKARTA 013603

SIPDIS

SIPDIS

DEPT FOR EAP/MTS, INL FOR BOULDIN
DOJ FOR CTS THORNTON, AAG SWARTZ, OPDAT FOR
ALEXANDRE/LEHMANN/CRAWFORD

E.O. 12958: DECL: 12/26/2016
TAGS: PREL PGOV KJUS PCRM KTIA ID
SUBJECT: CONSTITUTIONAL COURT DECLARES ANTI-CORRUPTION
COURT UNCONSTITUTIONAL

Classified By: Political Officer Adam West for reasons 1.4(b) and (d).

Summary
--------------


1. (U) In a controversial decision, on December 19 the
Constitutional Court of Indonesia (CC) ruled that the legal
provision which created the Anti-Corruption Court was
unconstitutional, but allowed the court to continue
functioning for a period of three years. The overturned
provision was part of the 2002 law which created the
Corruption Eradication Commission (KPK). The decision was
reportedly based on the Constitutional Court's finding that
suspects tried for corruption in the Anti-Corruption Court
were treated differently from suspects facing the same
charges in the regular court system, thus creating a
situation of legal uncertainty for the accused. However,
press reports indicate the decision allows for the
Anti-Corruption Court to continue operating for a period of
three years so that ongoing cases will not be affected. The
decision sparked a range of reactions from legal experts,
anti-corruption activists and GOI officials. USAID is
forming a task force to assist Parliament and the KPK in
developing draft legislation to restore the Court's permanent
status. Although the KPK appears sanguine about the impact
of the decision on its ongoing investigations, the decision
almost certainly represents a setback to the GOI's
anti-corruption efforts. End Summary.

The Decision
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2. (U) The Indonesian Constitutional Court (CC) on December
19 overturned the legal provision authorizing the creating of
the Anti-Corruption Court. The Court was created in 2002 to
work in tandem with the Corruption Eradication Commission
(KPK),the GOI's premier anti-corruption body. Since then,
the Court has convicted some 14 high profile individuals on
corruption charges, including one former Provincial Governor
and a former Cabinet Minister. The suit was brought by two
men previously convicted by the Court, who claimed that the
special court operated by different procedures and handed out
tougher penalties than the regular court system, thereby
creating a dual system in which suspects charged with
violating anti-corruption laws were treated differently
depending on which court handled their case. The judges on
the CC reportedly agreed, ruling that the Court was
unconstitutional, but adding that the Court could continue to
function for a period of three years to give Parliament time
to develop a new legislative basis for the Court's existence.



3. (U) While the media has focused on the issue of the
Anti-Corruption Court, other aspects of the CC's decision are
notable. For one, the CC rejected the plaintiff's call for
abolishment of the entire KPK. Additionally, the CC
reportedly upheld the authority of the KPK to conduct
wiretapping during its investigations, although the decision
did call for new regulations to stipulate when and how
wiretaps can be used. (The CC has not yet released its
full written decision.)

The Impact
--------------


4. (C) The CC's decision has generated strong reactions from
Indonesian observers. Rafendi Djamin, Coordinator for the
anti-corruption NGO Human Rights Working Group, told us that
the decision will hurt the GOI's anti-corruption efforts and
speculated that it was based on political rather than legal
considerations. (Note: This charge has been leveled against
a number of recent CC decisions - see septel.) The decision
to allow the court three more years of life has also
generated significant controversy, with some legal experts
claiming that the CC lacks the authority to extend the life
of an institution that is found to be unconstitutional. Some
prominent observers have called for a Presidential Order
(Perpu) to re-authorize the court's existence immediately,
while Djamin and others have called on Parliament to make
drafting a new law for the court a priority. The GOI,
however, does not view the issue with the same urgency. The
Yudhoyono administration reportedly has resisted calls for a
Perpu, stating only that it is studying various options.
KPK Chairman Taufiqurahman Ruki also publicly rejected the
need for a Perpu, telling the press that the CC's decision to

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grant the court three more years is a sufficient legal basis
for the court to continue operating. Privately, KPK Deputy
Chief Amien Sunaryadi told us he is not concerned about the
decision and is confident that the cases currently being
prepared by the KPK will continue to be tried in the Court as
before. As for the chances of new legislation being enacted
soon, one member of Parliament told us it was "doubtful" that
anything would be enacted next year.


5. (U) USAID is setting up a task force to assist lawmakers
and the KPK in developing new draft legislation to restore
the Court's status on a permanent basis. The task force will
operate under the auspices of USAID's Indonesian
Anti-Corruption and Commercial Court Enhancement project
(In-ACCE). The project provides aid to the Anti-Corruption
Court to improve Court functions in case management,
financial and budgetary planning, and management of
information technology and human resources.


6. (C) Comment: Although the CC has not yet released a full
opinion explaining its reasoning, the decision represents a
setback for SBY's anti-corruption drive. It will certainly
add fuel to the internal debate within the GOI between anti-
corruption advocates like KPK Vice Chairman Erry
Hardjapamekas and those who, like Vice President Kalla, claim
the anti- corruption drive is inhibiting the efficient
functioning of the bureaucracy. The KPK has achieved some
momentum with the convictions won to date, and GOI officials
at all levels are now significantly more aware of the
potential consequences of corrupt behavior. KPK officials
appear confident that they can continue to successfully
investigate and prosecute cases. However, a lengthy effort
in Parliament to create a new legal foundation for the
Anti-Corruption Court could prove a major distraction to the
KPK's efforts. At the very least, the CC's decision adds a
new layer of complexity to the already highly politicized
anti-corruption environment.
HEFFERN