PERAN KEJAKSAAN RI SEBAGAI DOMINUS LITIS DALAM KEKISRUHAN KPK VS POLRI http://mappifhui.org/2015/10/22/peran-kejaksaan-ri-sebagai-dominus-litis-dalam-kekisruhan-kpk-vs-polri/

1. The role of the Indonesian Attorney General’s Office as ​dominus
litis in the fight between the Corruption Eradication Commission
(PKP) and the National Police Force (POLRI)
By Adery Ardhan Saputro S.H. (MAPPI FHUI Researcher)
Thursday, February 5, 2015
http://mappifhui.com/baca/3887/peran-kejaksaan-ri-sebagai-dominus-litis-dalam-kek
isruhan-kpk-vs-polri
Background
The chaos occurring at the moment between two Indonesian law enforcement agencies,
the Corruption Eradication Commission (KPK) and the Indonesian National Police
(POLRI), was triggered by the decision of the Corruption Eradication Commission to
declare Police Commissioner General Budi Gunawan a suspect in a corruption
investigation ​
. Gunawan was also it should be noted candidate for promotion to the
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position of national police chief, announced by President Joko Widodo and approved by
Commission 3 of the Indonesian House of Representatives. Several days later officers of
the Indonesian National Police declared Corruption Eradication Commission
Commissioner Bambang Widjojanto a suspect in a criminal investigation in relation to
allegations Widjojanto had obtained from a witness false statements (in breach of
Article 242 & Article 55 of the Indonesian Criminal Code) during a Constitutional Court
case concerning the disputed election of the Regent of West Kotawaringin Regency in
Central Kalimantan Province in 2010.
Upon the arrest of Widjojanto, anti-corruption activists and members of the public
reacted strongly, flocking to the Corruption Eradication Commission offices and
protesting strongly over the police action, widely regarded as an arbitrary abuse of
power. The storm of protest and controversy has even destabilize the country, evidenced
by the statement of head of the Indonesian Armed Forces public relations unit Major
General Fuad Basya that, "the military is ready to secure the Corruption Eradication
Commission offices in the event the Police decide to raid the Commission". President
1
South China Morning Post, 23 January 2015, “Outrage at arrest of Indonesian graft­buster who said incoming
police chief was bribery suspect” [Retrieved from
http://www.scmp.com/news/asia/article/1689967/outrage­arrest­indonesian­graft­buster­who­said­incoming­police­c
hief­was​ Accessed 14 February 2015.]

2. Joko Widodo on the other hand has not taken any meaningful action, afraid of
appearing to intervene improperly in law enforcement.
Friction between two investigative agencies is common in other countries. In the United
States for example a scramble over the authority to investigate narcotics cases between
the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration
(DEA) has occurred on a number of occasions. However, this friction does not cause
such serious problems because both agencies are hierarchically directly under the
authority of the U.S. Attorney General. The Attorney General in fact has a critical role
and is vital to the criminal justice system. A situation such as the controversy now being
referred to in Indonesia as “KPK vs POLRI” would not be possible in the United States.
Position and Duties of the Attorney General in Indonesia’s Code of Criminal
Procedure
If we reflect on the situation in Indonesia, although the Attorney General’s Office is
generally seen as holding the position of ​dominus litis​, in this controversy it has not
taken any meaningful steps to act as intermediary in the fracas. This is clear from the
description of the head of the Attorney General's public information office Tony
Spontana: "We are guided solely by the Code of Criminal Procedure, and we do not want
to be drawn into the polemic. The Attorney General’s Office is currently preparing to
issue a direction appointing an investigating prosecutor who will be assigned to monitor
the development of the investigation."
From Spontana’s statement we can draw a number of conclusions. (i) The Attorney
General’s Office can only monitor and issue directions in relation to the result of an
examination of a case file prepared by the Police. (ii) The Code of Criminal Procedure
prohibits the Attorney General’s Office being directly involved in an inquiry conducted
by the Police. (iii) The relationship between the police as investigator and the Attorney
General’s Office according to the Code of Criminal Procedure is limited to functional
coordination only. Given this, on the basis of just the Code of Criminal Procedure,
Spontana’s argument can be regarded as appropriate, namely that the authority of the
Attorney General’s Office is limited only to monitoring a police inquiry and does not
extend to conducting supervision of a police investigation of a case. This is because the
principle of functional differentiation on which the Code of Criminal Procedure is
founded is the root cause of the problem of frequent friction between these two
investigative agencies.

3. In relation to the police case against KPK Commissioner Bambang Widjojanto, the
principle of functional differentiation will lead to significant problems in the future,
especially for the institution of the Attorney General’s Office. The institution of an
attorney general which investigates solely on the basis of case files alone, without being
permitted to conduct investigations directly, can create obstacles to the presentation of
evidence during court hearings. Assuming the case file for the Bambang Widjojanto
investigation is regarded as complete by the Attorney General’s Office, the Attorney
General’s Office would issue a Form P-21 based on evidence obtained during the
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investigation. Later at the trial phase, should it become known that in actuality some of
the items of evidence were obtained other than in accordance with the law, or even, that
a certain number of witness statements provided to investigators were coerced, this
could have the implication that the provision of evidence by the prosecution was less
than optimal with the reduction in the evidence available for use by the public
prosecutor for proving the guilt of the accused.
Thus there is a need for a strong connection between public prosecutors and cases being
brought against an accused which is not simply limited to an examination into a case
file, or merely to providing guidance to investigators. Rather, the prosecution should be
able to conduct investigations directly (​opsporing​) or at least be able to conduct
follow-up investigations (​nasporing​) in relation to inquiries already undertaken by
investigators. The aim of this would be for prosecutors to be able to establish how
investigators obtained evidence in a case, and at the same time to establish whether a
suspect really was a party worth taking to trial.
In contrast, the position and duties of the Attorney General’s Office as ​dominus litis is in
fact very clear in the provisions of the Revised Indonesian Code (​Herziene Indonesisch
Reglement or HIR ​
). While the HIR remained in force an investigation was an
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inseparable part of a prosecution. This authority establishes the Prosecuting
Investigator as public prosecutor to be both the coordinator of an investigation and also
as having the ability to conduct his own investigations. As a result, the Attorney
2
​According to Shanti Rachmadsyah S.H., writing on legal information website Hukumonline.com, these
codes are based on Decision of the Indonesian Attorney General No. 518/A/J.A/11/2001 dated 1 November 2001
concerning Amendment of Decision of the Indonesian Attorney General No. 132/JA/11/1994 concerning the
Administration of Cases of Criminal Offences. The Codes represent form codes used in the process of handling and
completing criminal cases. Form P­21 is Advice That Result of Investigation is Complete​. ​[Retrieved from
http://www.hukumonline.com/klinik/detail/cl5170/p­18,­p­19,­p­21,­dan­lain­lain​. Accessed 9/02/2015.]
3
​On the Code of Criminal and Civil Procedure for Indonesians and Asian Orientals on Java and Madura, see
Lev, Daniel S. ​Legal Evolution and Political Authority in Indonesia: Selected Essays​. The Hague: Kluwer Law
International, 2000, p. 72; S. Pompe, Ed., Indonesian Law 1949­1989: A Bibliography of Foreign­Language
Materials With Brief Commentaries on the Law Bibliography of Foreign Language Materials with Brief Comments,
Martinus Nijhoff, 1992, p. 165; and ​http://hukum.unsrat.ac.id/uu/hir.pdf​ [Accessed 3/4/2015.]

4. General’s Office was in the position of a key institution in the overall process of criminal
law enforcement from beginning to end.
With the repeal of the HIR by the Code of Criminal Procedure, the authority of the
Attorney General’s Office to conduct investigations (​opsporing​) has been de-legitimised
indirectly by the Code. However, the authority of the Attorney General’s Office as
dominus litis did not disappear just like that with the repeal of the HIR. This is because
of Article 27, paragraph (1), subparagraph (d) of Law No. 5/1991 concerning the
Attorney General’s Office which provides that:
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"(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 clearly affirms that the attorney general has the authority to conduct
additional investigations (​nasporing​). This authority affirms that the attorney general
continues to constitute the agency in control of a case even at the investigation stage.
This is also provided for by Article 30 paragraph (1), subparagraph (d) of Law 16/2004
concerning the Indonesian Attorney General ​
. Therefore the attorney general does in
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fact have the authority to carry out additional inquiries (​nasporing​) and as a result the
attorney general has the authority to ensure that investigations carried out by
investigators have been conducted properly.
So although the Criminal Code appears to provide for the attorney general having just a
functional coordinating role in investigations which are to be conducted by the police, in
fact if one relies on Article 30, paragraph (1), subparagraph (d) of Law No. 16/2004, in
fact the Attorney General is able to take action beyond that of merely monitoring the
result of police investigations or examining case files based solely on witness testimony.
Quite the contrary, the Attorney General may take a more important role in the process
of the inquiry into the case of Commissioner Bambang Widjojanto by way of additional
inquiries into the relevant witnesses or suspects.
4
Law 5/1991 concerning the Indonesian Attorney Generals Office ​http://hukum.unsrat.ac.id/uu/uu_5_91.htm
[Accessed 3/4/2015.]
5
Chapter III Duties and Authority Part One General Article 30 (1). In the area of crime, the attorney general
has the functions of and authority to: a. Conduct prosecutions; b. Execute judicial determinations and decisions of
courts which have gained the final force of law; c. Conduct supervision of the execution of conditional criminal
sentences, supervisory criminal sentences, and conditional release decisions; d. Conduct investigations into certain
criminal offences as provided for by statute;

5. Quite apart from the attorney general being able to conduct additional inquiries, the
writer is of the view that there are still problems in our criminal justice system. This is
illustrated by the possibility of conflict between law enforcement agencies in dealing
with an investigation. The current dispute indicates that the differentiation and the
independence of each law enforcement agency in handling a case represents a
conceptual mistake. Because of this there is a need for change in the criminal justice
system in Indonesia to minimize friction between law enforcement institutions.
Integrated Criminal Justice System Reform
Change in the roles and duties of the Attorney General’s Office has in fact been
accommodated by the existence of the Criminal Procedure Code Bill. This is evident
from the provisions of Article 46, paragraph (3) and (4)
Article 46 paragraph (3)
If the public prosecutor still finds deficiencies in relation to a case file, the public
prosecutor may request the investigator to conduct additional investigations by
giving instructions directly or can conduct additional inquiries prior to
transferring to the court the implementation of which is coordinated with the
investigator.
Article 46 paragraph (4)
In subsequent case inquiries if necessary certain legal action to facilitate the
conduct of hearings in court or the execution of judicial decisions, the public
prosecutor can take legal action himself or ask for investigation assistance to be
conducted.
These two articles affirm that the public prosecutor represents the party in control of a
case at the investigation stage, even though the case is conducted by a different agency.
The writer would add that despite the expanded authority of the attorney general in
coordinating investigations, the Bill is not yet able to make the position of the attorney
general into that of mediator in the event that the problem of sectoral egos arises
between law enforcement agencies in the conduct of a case.
In relation to this problem, solutions can be suggested from the example of criminal
justice systems in other countries. Examples include: (i) Coordination between police
and prosecutors in the Netherlands is provided for by the ​Wet Bijzondere
opsporingsbevoegd-heden​, the Special Powers of Investigation Act or BOB, which came
into force on 1 February 2000. This provides that the public prosecutor’s office is the
appropriate agency to lead a criminal investigation. (ii) Changing the hierarchy and

6. position of the attorney general in Indonesia to be like that in the United States. By
positioning the attorney general to be at the same time the Minister of Justice
representing the highest agency in control of a case and the use of one investigation
warrant (​Surat Perintah Pemeriksaan​or SPP).
Hopefully the occurrence of the case between the Corruption Eradication Commission
and the Indonesian National Police will create momentum for improvement in the
criminal justice system in Indonesia. At the same time hopefully it will be a forum that
demonstrates the role of the Indonesian attorney general as the ​dominus litis agency in
control of criminal cases. Finally it is to be hoped that reform of the criminal justice
system and the future operation of the criminal justice system will be based solely on
legal perspectives, without being influenced by considerations of a political nature.6
6
Also see ​http://www.hukumonline.com/berita/baca/lt53670c63bfe50/bahasa­hukum­­jaksa­pengacara­negara
[Accessed 3/4/2015]