Jakarta, IO – Controversies surrounding the National Search and Rescue Agency (Basarnas) have sparked after the Corruption Eradication Commission (KPK) conducted a red-handed operation on the procurement of goods and services at Basarnas, involving two businessmen and military members. The news spread like wildfire on social media, after the Indonesian Armed Forces (TNI) Headquarters objected to the suspect-naming process of the military personnel. The KPK responded and met with TNI officials. It ended up with the KPK apologizing to the TNI Headquarters for its investigators’ “error or negligence” by naming the military personnel suspects and detaining them.
Fundamentally, the issue raised by the military is about the scope of KPK’s authority to investigate military personnel involved in corruption or bribery cases. The TNI believes it violates the connectivity principle stipulated in Articles 89-94 of the Criminal Procedure Code 31/1997 on Military Justice. However, one must not ignore the provision of TNI Law 34/2004, KPK Law 31/1999 and Corruption, Collusion and Nepotism (KKN) Law 28/1999.
From a historical aspect and the intent and purpose of creating the Corruption Law (teleology), the Corruption Law aims to create a clean and authoritative Government free of corruption, collusion and nepotism. It is reinforced by Law 28/1999 on State Administration that should be clean and free of KKN. In Law 28/1999 and Law 31/1999, military personnel and civilians are of equal status, without any exception, when accused of committing corruption crimes.
Sociologically, corruption is an extraordinary crime threatening the state and violating people’s human rights to obtain justice. Therefore, its eradication must be conducted in an extraordinary manner, including the formation of the KPK in Law 30/2002, which amended Law 19/2019. Other extraordinary aspects of the KPK, according to the KPK Law, include wiretapping (interception) without the court’s permission and being free from power interference by legislative, executive and judiciary organs.
Based on the above description of legal aspects, the polemic of KPK’s red-handed operation in the Basarnas case is related to four Laws: The Corruption Law, the TNI Law, the Military Justice Law and the KKN Law. These four are inseparable. The KPK’s legal subjects are not only limited to civil servants in the lowest echelon positions but also high-ranking officials at the ministerial level and even a president. There is no special treatment (equality before the law) except for protocols, which are nothing more than institutional ethics.
From the aspect of enactment of a law, there is the lex posterior derogat legi priori principle (a later law repeals an earlier); the earlier law (the 1997 Law) is repealed because of a later law (the 2004 Law). Based on the principle of universal law in the Indonesian legal system, it can be concluded that if the Military Justice Law contradicts the TNI Law, the Military Justice Law is repealed; similarly, referring to Article 65 of the 1997 Law, the Military Justice Law does not apply absolutely to a military member committing a crime, especially corruption. It only applies in absolute terms to military personnel committing criminal conduct (the Military Criminal Code, the authority of military justice based on the 1997 Military Justice Law); it is not rigid and offers options for authority, in this case, in investigating military members who commit ordinary crimes so that they can be tried in public courts.
Legitimately, the Military Justice Law (1997) only applies to military personnel committing ordinary crimes. This is explicitly reinforced in the TNI Law (2004) that (1) a soldier is subject to the legal provisions that apply to soldiers, (2) a soldier is subject to the authority of the military court regarding violations of military criminal law and is subject to the authority of the general court regarding violations of ordinary criminal law as regulated by law, (3) if the powers of the general judiciary as referred to in paragraph (2) do not function, a soldier is subject to the jurisdiction of the judiciary as regulated by law.
From those provisions, a question arises. What if a military member commits a crime of corruption? It is not explicitly stated that the Military Justice Law also applies to military personnel committing corruption crimes (special offenses) but only to military crimes and general crimes (general offenses).
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The above description only ascertains that the polemic on the KPK’s red-handed operation on Basarnas, especially on those military personnel and other involved members (the Head of Basarnas), is uncalled for if each party focuses on corruption cases (corruption crimes) as a common problem among state agencies, instead of prioritizing their respective sectoral egos. Thus, Indonesia can secure its domestic interests and improve its image in the international community.
In the future, coordination and synchronization between the TNI Headquarters and the KPK need to be seriously considered – in a more complete and detailed Presidential Decree on the procedures of the Military Justice and alterations to the procedures of the Corruption Law, which specifically regulates military personnel committing corruption and those committing corruption jointly with civilians. Also, the public must be assured that there will be no legal discrimination between corruption perpetrators from the military or civilians, so the two groups can have a firmer and clearer legal position without multiple interpretations.