REFLECTING ON THE VERDICT IN THE GAZALBA SALEH CASE
(Just an Analysis of Legal Considerations)
By :
DR. EKO WIYONO, SH, MHum
(Senior Advisor at LEGIS PRIORI Jakarta Law Office)
Some time ago, in May 2024, the Indonesian judiciary was a bit shocked by the passing of an interim decision by the Panel of Judges for Corruption Crimes at the Central Jakarta District Court against the Defendant Gazalba Saleh, which is actually a normal and normal thing for the Judge’s decision, especially an interim decision with a petitum. is stating that he accepts and grants the exception of the Defendant or his Legal Advisor, so that the decision in question has the status of being the final decision of the court of first instance and legal action can still be filed against the decision in question.
As is known, it has become quite an actual topic in several mass media which published the news that on May 27 2024 the Corruption Crime Court at the Central Jakarta District Court which examines and tries cases of criminal acts of corruption at the first level with the usual examination procedure has handed down the verdict in the case on behalf of the Defendant Gazalba Saleh, with the following verdict:
- Accept the Notice of Objection from the Defendant/Legal Advisory Team;
- Declare the prosecution and indictment of the public prosecutor to be unacceptable;
- Order the defendant Gazalba Saleh to be released from state custody;
Many parties disagree with the decision of the Corruption Crime Judge at the Central Jakarta Corruption Court, especially academics, including Lecturer at the Faculty of Law at Trisakti University, Albert Aries, who revealed in mass media that there is no need to delegate prosecution from the Attorney General to the KPK Public Prosecutor, with based on the provisions of article 51 of the Corruption Eradication Committee Law which basically determines that the Public Prosecutor who carries out the prosecution function at the Corruption Eradication Commission is appointed and dismissed by the Corruption Eradication Committee. There was even a quite harsh statement that the judge’s decision in the Gazalba Saleh corruption crime case was inconsequential, this is ethically inappropriate because it could be questioned in an a-contrario manner, what would happen if this inconsequential statement was instead directed at the party who had stated If the judge is inconsequential, in other words, what if there is another party who states that the party who said it was inconsequential itself is inconsequential in enforcing the law, would you be willing to accept it (?) is a question that needs to be pondered before making a statement about another’s product. law enforcement institutions.
In this regard, through the simple thoughts outlined in this short article, we try to compare the opinions that disagree with the legal considerations of the Panel of Judges at the Corruption Crime Court at the Central Jakarta District Court, with the opinions that agree with their respective legal arguments. which in a scientific context is justified and normal, and we cannot blame each other because of differences of opinion or views in the scientific universe, which is normal as long as it is based on logical legal arguments and can be scientifically justified.
Those who argue that they do not agree with the considerations of the Judge of the Corruption Crime Court at the Central Jakarta District Court in the decision of the Gazalba Saleh case are based on the legal argument that based on the provisions of article 1 number 3 and number 4 of the second revision of the Corruption Eradication Committee Law, it is basically stated that the Corruption Eradication Commission is a State institution. in the executive family who carries out and carries out the task of preventing and eradicating criminal acts of corruption. The task of eradicating criminal acts of corruption according to article 1 number 4 of the Corruption Eradication Commission Law includes, among other things, also including “prosecution”, so that the provisions of the Corruption Eradication Commission Law become lex specialist in nature from the Attorney General’s Law which is more of a legi generali nature.
Furthermore, in the context of changes to a statutory regulation, there is a principle that even though there is a new but general statutory regulation whose validity trumps the provisions of the old law (lex posteriori derogat legi priori), this does not mean that it can immediately override the provisions. The law is specific in nature, unless the provisions of the new law in question have expressly stated that it revokes the provisions of the law which are more specific in nature (lex specialist).
Based on the rationale above, when a prosecutor is appointed as a public prosecutor by the Corruption Eradication Committee, the legal consequences arise as long as the prosecutor is on duty and carrying out prosecution duties at the Corruption Eradication Commission, legally there is no hierarchical and delegation relationship with the Attorney General in the “prosecution” task in carrying out prosecutions. cases of criminal acts of corruption, as intended by article 35 letter i of the Prosecutor’s Law, for example regarding the delegation of part of the prosecutorial authority to the Prosecutor General in Military Justice. In Article 6 letter “e” of Law Number 19 of 2019, the duties of the Corruption Eradication Committee are specified in terms of investigation, investigation and prosecution, namely: (e) carrying out: investigation, investigation and prosecution of criminal acts of corruption. In fact, in the provisions of Article 10 A of the second revision of the Corruption Eradication Commission Law, it is stated that the Corruption Eradication Committee has the authority to take over the investigation and/or prosecution of perpetrators of criminal acts of corruption that are being carried out by the Police or Prosecutor’s Office.
From this, it can be concluded that there are several functions of the Corruption Eradication Committee, namely in the form of coordination, supervision, monitoring, action and prevention and execution, so that the Corruption Eradication Commission is an institution that triggers and empowers existing institutions for eradicating corruption, namely the Police and Prosecutor’s Office, which are often known as the “trigger mechanism.” ”. So that the existence of the Corruption Eradication Commission (KPK) institutions will not overlap and interfere with the duties and authority of eradicating corruption carried out by both the Police and the Prosecutor’s Office. Even in the enforcement function, there are differences between the Corruption Eradication Commission and the Police and the Prosecutor’s Office, where the Corruption Eradication Commission focuses more on significant cases or “big fish” with the criteria as intended in Article 11 of Law Number 19 of 2019, namely:
1. In carrying out the duties as intended in article 6 letter “e”, the Corruption Eradication Commission has the authority to carry out investigations, investigations and prosecutions of criminal acts of corruption, which:
a. involving law enforcement officials, State Administrators, and other people who are related to Corruption Crimes committed by law enforcement officials or State Administrators; and/or
b. involving State losses of at least Rp. 1,000,000,000,- (one billion rupiah);
2. In the event that the Corruption Crime does not meet the provisions as intended in paragraph (1), the Corruption Eradication Commission is obliged to hand over the investigation, investigation and prosecution to the Police and/or Prosecutor’s Office;
This further confirms that the Corruption Eradication Committee (KPK) is a state institution that is constitutionally important in enforcing, preventing and eradicating criminal acts of corruption as mandated by article 24 paragraph (3) of the 1945 Constitution of the Unitary State of the Republic of Indonesia, which states that: Other bodies whose functions are related with judicial power regulated by law.
On the other hand, for parties who agree with the legal considerations of the Panel of Judges at the Corruption Crime Court at the Central Jakarta District Court which stated in their legal considerations that “there is no delegation of authority from the Attorney General to the Public Prosecutor” in the Gazalba Saleh case, so that the Public Prosecutor’s indictment is declared invalid. accepted, based on legal arguments including the following:
– Whereas according to article 35 letter “h” of Law No.11 of 2021 concerning Amendments to Law No.16 of 2004 concerning the Republic of Indonesia Prosecutor’s Office, it reads:
(1) The Attorney General has the following duties and authorities:
“h”: as an Investigator and Public Prosecutor and Executor of Court Decisions that have obtained permanent legal force in cases of serious criminal violations of Human Rights.
Based on the provisions above, adhering to the principle of Dominus Litis and the principle of opportunity which only prosecutors have, as well as the principle of the Single Presecution System which places the Attorney General as the Highest Public Prosecutor, is already a best practice as well as a standard that applies and is recognized by prosecutorial practice. internationally. So in order to prosecute, The Attorney General as Public Prosecutor delegates his prosecutorial authority to the Public Prosecutor as intended in article 35 paragraph (1) letter “J” of Law no. 11 of 2021 concerning Amendments to Law no. 16 of 2004 concerning the Prosecutor’s Office, that:
(1) The Attorney General has the following duties and authorities:
“j” : delegate part of the prosecutorial authority to the Public Prosecutor to carry out the prosecution;
– Whereas according to article 1 number 3. Law No.11 of 2021 concerning Amendments to Law No.16 of 2004 concerning the Republic of Indonesia Prosecutor’s Office, reads:
“Public Prosecutor is a Prosecutor who is authorized by law to carry out prosecutions and carry out the Judge’s determination and other authorities based on law.”
Furthermore, Article 8 of Law No. 11 of 2021 concerning Amendments to Law No. 16 of 2004 concerning the Indonesian Prosecutor’s Office, states:
(1) Prosecutors are appointed and dismissed by the Attorney General;
So referring to the legal meaning of Public Prosecutor and Prosecutor as explained above, it can be concluded that the Public Prosecutor is a Prosecutor who is appointed and dismissed by the Attorney General.
– Whereas according to article 1 number 6 letters “a” and “b” of Law Number. 8 of 1981 concerning Criminal Procedure Law (KUHAP), in full it reads as follows:
a. A prosecutoris an official authorized by this law to act as a public prosecutor and implement court decisions that have permanent legal force;
b. The Public Prosecutor is a prosecutor who is authorized by this law to carry out prosecutions and carry out the Judge’s determination;
So referring to the explanation above, it shows that the authority to carry out prosecutions according to the Criminal Procedure Code is a prosecutor who has received a delegation of authority to act as a public prosecutor from the Attorney General to carry out prosecutions, namely: a prosecutor who is appointed and dismissed by the Attorney General.
– That according to article 51 of Law Number. 30 of 2002 concerning the KPK, in full it states:
(1) Public Prosecutor is a Public Prosecutor at the KPK who is appointed and dismissed by the KPK;
(2) The Public Prosecutor as intended in paragraph (1) carries out the function of prosecuting criminal acts of corruption;
(3) The prosecutor as intended in paragraph (1) is the Public Prosecutor;
– That regarding the authority of the Public Prosecutor at the Corruption Eradication Commission must be in accordance with the authority of the Public Prosecutor at the Criminal Procedure Code as the parent rule of the Criminal Procedure Law, where in article 38 of Law Number. 30 of 2002 concerning the Corruption Eradication Commission in full states: “: All authorities relating to investigations, investigations and prosecutions regulated in the law governing the Criminal Procedure Law apply to investigators, investigators and Public Prosecutors at the Corruption Eradication Commission, unless otherwise determined based on the law invite this;
So, by following the provisions of Article 38 of Law Number. 30 of 2002 concerning the Corruption Eradication Committee expressly determines that the authority of the Public Prosecutor at the Corruption Eradication Committee MUST BE THE SAME/ ALIGNED with the Authority of the Public Prosecutor according to the Criminal Procedure Code.
Meanwhile, as explained above, the authority of the Public Prosecutor in the Criminal Procedure Code is: Prosecutors who have received delegation of authority to act as Public Prosecutors to carry out prosecutions from the Attorney General.
The logic of legal thinking explains: That for Public Prosecutors at the Corruption Eradication Commission who are appointed and dismissed by the Corruption Eradication Committee, then legally the Public Prosecutor at the Corruption Eradication Committee has NOT received/obtained delegation of authority as Public Prosecutor to carry out Prosecution of Corruption Crimes from the Attorney General as The Highest Public Prosecutor is based on the Dominus Litis principle and the Opportunity Principle which only prosecutors have, as well as the Single Presecution System principle which places the Attorney General as the Highest Public Prosecutor, which is already a best practice as well as an applicable standard and recognized by international prosecution practice.
Example: The Auditor General who receives a Delegation for Prosecution from the Attorney General as stated in Article 35 letter “i” of Law Number 11 of 2021 concerning Amendments to Law Number 16 of 2004 concerning the Prosecutor’s Office of the Republic of Indonesia, reads:
(1) The Attorney General has the following duties and authorities:
(i) delegate part of the Prosecution authority to the Auditor General to carry out the Prosecution;
So from the foregoing it can be concluded that WITHOUT DELEGATION OF PROSECUTORAL AUTHORITY from the Attorney General, then: the Public Prosecutor at the Corruption Eradication Commission does not have the AUTHORITY to act as a Public Prosecutor in prosecuting Corruption Crimes, and to be able to carry out Prosecution of Corruption Crimes. In casu in the Corruption Crime case in which Gazalba Saleh was charged, it is MUST to obtain DELEGATED AUTHORITY from the Attorney General FIRST to be able to act as a Public Prosecutor and carry out Prosecution actions.
Based on the thoughts as stated above, the legal argument becomes quite logical by the Corruption Crime Court at the Central Jakarta District Court, which in its legal considerations in its Decision stated that the Public Prosecutor at the Corruption Eradication Committee had NOT received delegation of authority to act as Public Prosecutor and carry out the prosecution of Gazalba Saleh in the case of the criminal act of corruption in which he was accused, so that it is ALSO an IRROUNDING THING The Interim Decision of the Panel of Judges of the Corruption Crime Court at the Central Jakarta Court which has stated that the Public Prosecutor’s Indictment is declared UNACCEPTABLE.
So how do we reflect on the legal issues mentioned above, then we are welcome to agree or disagree with the attitude of the parties towards the decision of the Panel of Judges at the Corruption Crime Court at the Central Jakarta District Court, because each opinion is based on logical arguments according to law that can be justified. answer scientifically. One thing that is important to reflect on is that each party’s legal opinion is NOT inconsequential, but each of them has basic reasons, and one thing that is even more important is: Hopefully we can follow opinions according to our own conscience and knowledge. each without any content of interests beyond reason and outside the law.
Hopefully useful.
Thank You.
