At the beginning of November 2013, the Minister of Home Affairs (Mendagri) Gamawan Fauzi again released sad news. Mendagri mentioned, currently, 309 Regional Heads are involved in legal problems. At the end of 2012, the Minister of Home Affairs also stated that there were 290 regional heads who were caught in (legal) corruption cases. This means that in less than one year, the number of Regional Heads involved in legal issues has increased by 19 people, or more than 1 person every month on average. The Center for Regional Studies and Information (PATTIRO) indicates the high rate of regional heads involved in legal issues due to the existence of Article 36 paragraph (1) and paragraph (3) of Law number 32 of 2004 concerning Regional Government.

Article 36 paragraph (1) and paragraph (3) of Law 32 of 2004 are quite strong in fortifying the presence of regional heads to dampen or avoid investigative actions by law enforcement officials. This can be seen from the licensing procedures that must be followed by law enforcers, which actually make it difficult for law enforcement officials. There are at least two stages that law enforcers must go through in handling legal cases involving regional heads. In the first stage, law enforcement officials must obtain written approval from the President when conducting investigations and inquiries of regional heads (see Article 36 paragraph (1) of Law No. 32 of 2004). In the second stage, law enforcement officials must obtain written approval from the President when detaining suspected regional heads (see Article 36 paragraph (3) of Law No. 32 of 2004).

The existence of Article 36 paragraphs (1) and (2) of Law No. 32 of 2004 is like a layered fortress for regional heads, so that they feel safe and comfortable to carry out various actions that violate the law. Such as acts of corruption, abuse of authority, and/or money laundering. This multi-layered fortress reduces the deterrent element of law enforcement against regional heads. And it doesn’t even count.

Anti-corruption activists have submitted a judicial review of this article to the Constitutional Court. Regarding the judicial review, the Constitutional Court, with Decision Number: 73/PUU-IX/2011, has stated, determined that the written approval from the President at the investigation and investigation stages of regional heads “does not have sufficient legal rationality.” Then it is stated that Article 36 paragraph (1) of Law No. 32 of 2004 is unconstitutional, so it no longer has legally binding force.

Apart from that, the Constitutional Court also conditionally accepted Article 36 paragraph (3) of Law No. 32 of 2004. Namely, it received written approval from the President for the detention of regional heads, with a time limit of 30 (thirty) days. Reducing the number of days which previously reached 60 (sixty) days. According to the Constitutional Court, the requirement for the President’s written approval for the process of investigating a regional head and/or deputy regional head who is suspected of having committed a crime has the potential to be used to erase traces of a crime or to destroy evidence.

Likewise, for the President’s written approval requirement, for investigations, the written approval requirement will hinder the legal process, which should be fast, simple, and low-cost and does not hinder the apparatus from carrying out their duties. The President’s written permission does not have sufficient legal rationality, and will treat citizens differently in the eyes of the law. Often there is also concern that officials who are suspected of being involved in a case will try in various ways to prevent the request for an inspection permit from the President from being issued. Either by “blocking” at the investigator level or at other process levels.

With the Constitutional Court Decision Number: 73/PUU-IX/2011, the Government should obey and implement it. The efforts of the Government to fight against the Constitutional Court Ruling are tantamount to the Government opposing and violating the Constitution.

However, in reality, the government will continue to maintain the sense of security and comfort for these regional heads. The existence of Article 36 of Law No. 32 of 2004 will be maintained and will appear in the Regional Government Bill (RUU Pemda) which the Government and the DPR are currently discussing.

Article 75 of the Regional Government Bill has exactly the same substance as Article 36 of Law No. 32 of 2004, with a few changes. The change occurred in removing the word “investigation” and adding two paragraphs regarding: (i). Law enforcement agencies entitled to apply for written approval to the President; and (ii). The authority to give consideration by the Minister to the President. The re-inclusion of material on the restriction on investigations of regional heads into the Regional Government Bill shows that the Government has the intention and attitude to go against the Constitution. The intention and attitude of the Government’s resistance to the 1945 Constitution is shown from the Government’s disregard for the Constitutional Court Decision.

So in order to remove the multi-layered fortress that gives regional heads a sense of security and comfort in committing unlawful acts, PATTIRO reminds, convinces, and encourages the DPR and the Government to change the editorial substance of Article 75 of the Regional Government Bill or Paragraph Seven, regarding Investigative Actions against regional heads. regional and deputy regional heads, with;

First, delete the substance of articles and paragraphs which have been declared “not having binding legal force” and “contrary to the 1945 Constitution” by the Constitutional Court.

Second, drafting articles or paragraphs regarding Investigative Actions against regional heads and deputy regional heads in the Regional Government Bill that are appropriate and in line with the mandate of the Constitution that has been stipulated, decided by the Constitutional Court, in Decision Number: 73/PUU-IX/2011.

Third, the formulation of articles or paragraphs that are appropriate and in line with the mandate of the Constitution, according to the Constitutional Court Decision, are: (i). The act of detaining regional heads and/or deputy regional heads as a result of an investigation by law enforcement officials requires written approval from the President; (ii). In the event that written consent for detention is not given within 15 (fifteen) days from the receipt of the request, detention may be carried out.

Jakarta, 14 November 2013

Sad Dian Utomo | PATTIRO Executive Director
saddian@pattiro.org | 0812 800 3045

Contact Person: Adnan Rahmadi | Communications Officer
adnan@pattiro.org | 081 808 240105

The Regional Research and Information Center (PATTIRO) is a non-profit organization that encourages the realization of good, transparent and fair local governance for the social welfare of the community. PATTIRO, which was established on April 17, 1999 in Jakarta, is engaged in research and advocacy with a focus on local governance issues, especially decentralization. PATTIRO’s focus areas consist of public service delivery improvement; public policy reform (public policy reform); and public budget management reform (public finance management reform).

(for details please see www.pattiro.org)