Maqdir Ismail: MK's ruling on 2 articles of the Tipikor Law must be followed up by the DPR

IKADIN Chairman Maqdir Ismail gives information to reporters at a press conference for the Indonesian Lawyer Care Forum in Jakarta, Wednesday (26/3/2025). ANTARA FOTO/Asprilla Dwi Adha/tom

JAKARTA - Legal practitioner Maqdir Ismail assessed that the Constitutional Court's (MK) ruling on Case Number 142/PUU-XXII/2024 regarding the material test of Article 2 paragraph (1) and Article 3 of the Corruption Crime Law must be followed up by the House of Representatives (DPR).

According to him, in the ruling, the Constitutional Court acknowledged the existence of multiple interpretations of the two articles which created uncertainty, so the Court recommended that the lawmakers reformulate the two articles.

"This, in my opinion, is an endless debate without a clear policy on legal politics in eradicating corruption," Maqdir said in a statement received in Jakarta, Friday, quoted by Antara.

Even so, Maqdir said Articles 2 and 3 of the Tipikor Law were basically written in Articles 603 and 604 of the Criminal Code (KUHP) which had been passed and would come into force next year.

Therefore, he admitted that he was confused about how the Constitutional Court asked the DPR to amend the two articles, whereas the Parliament had already decided and the law would take effect.

As the lawyer for the applicants for the material test of the Tipikor Law, Maqdir seized this as an encouragement from the Constitutional Court for his party to again sue Articles 603 and 604 of the Criminal Code on the grounds of legal uncertainty.

He said that Articles 2 and 3, especially regarding state financial losses in corruption cases, were actually only in Indonesia and not in other countries.

Maqdir also cited Myanmar as a country that is very strict in eradicating corruption. However, the country does not base corruption on the element of state losses, but on the element of bribery, abuse of authority, or other illegal acts.

In that way, he hopes that eradicating corruption in Indonesia is not only based on the element of state financial losses because it is prone to be an illusion from the party who makes the calculation because the numbers are not real.

"This is not a contestation of law enforcement who feel that the case they are handling is bigger than other cases," he said.

One of the applicants for the material test of the Tipikor Law, Hotashi Nababan, added that the material test of Article 2 paragraph (1) and Article 3 is basically an effort to protect public officials, including the directors of State-Owned Enterprises (BUMN) from legal uncertainty.

"I strongly support efforts to eradicate corruption. However, seeing the cases that happened to Tom Lembong, Ira Puspadewi, and many more, then more people will be criminalized, like me with the rejection of this judicial review," said Hotashi, who was once convicted of corruption in the Merpati Airline case.

According to him, it would be very risky if someone was charged with corruption if only with the calculation of financial and economic losses to the state and did not require proof of evil intent.

In the ruling on the material test of Article 2 paragraph (1) and Article 3 of the Corruption Law with case numbers 142/PUU-XXII/2024 and 161/PUU-XXII/2024 read on Wednesday, December 17, the Constitutional Court rejected all the applicants' requests.

However, the Constitutional Court understands that there is a discourse regarding multi-interpretation and inconsistency of law enforcement officials regarding the norms of Article 2 paragraph (1) and Article 3 which can cause uncertainty.

Therefore, the Court recommends that the law-makers review and reformulate these two articles.

In addition, the decision on Case 161/PUU-XXII/2024 was also colored by a dissenting opinion from one of the judges, Arsul Sani.

According to Judge Arsul, the Constitutional Court should have granted a portion of the petition, namely for the norm of Article 2 paragraph 1 to be added with the phrase "with the intention" as evidence of evil intent (mens rea).

The material test for Article 2 paragraph (1) and Article 3 of the Corruption Law was requested by the former President Director of Perum Perindo Syahril Japarin, former Chevron Indonesia employee Kukuh Kertasafari, former Governor of Southeast Sulawesi Nur Alam, and former President Director of Merpati Airlines Hotashi Nababan.

The applicants asked the Constitutional Court to delete the phrase "state financial losses" in both articles or to continue to use it with the addition of the elements of bribery and evil intent.