TEMPO.CO, Jakarta - National Police Chief Tito Karnavian could be accused of shackling the law if he does not withdraw the circular, or telegram, containing rules governing searches and confiscations on police installations. The document states that permission is required from the National Police chief or Provincial Police chief if the Corruption Eradication Commission (KPK), prosecutors or courts plan to summon officers, or search, confiscate items from or enter police installations in the center or in the provinces.
This telegram clearly contravenes existing legal procedure. For example, Articles 33 and 38 of the Criminal Procedures Code (KUHAP) state that searches and confiscations in relation to a crime do not require permission from the head of the district court. And if the need is urgent, investigators are even allowed to make the search or confiscation first, and then report to the local court.
With corruption cases, Law No.30/2002 on the Corruption Eradication Commission and Law No.31/1999 on the Eradication of Corruption Offenses are even more progressive. Article 47 of the KPK Law makes no mention at all of the need for a judge's permission. Investigators can make seizures if they find strong indications and sufficient initial evidence.
These three legal products are enough to regulate the actions required by law enforcers. It is the obligation to obtain permission from the national police chief that has no clear legal basis. The circular, issued in the middle of December, is a step backwards by Tito, who has been known for his determination to reform the police. To use a soccer expression, he is "offside" as he is in breach of a higher law.
Tito has claimed that the telegram was an internal document. But this circular sent to all provincial police chiefs could be used as a "weapon" for officers to refuse entry to, obstruct or stall investigators from other law enforcement agencies. Using the excuse that they "have not yet obtained permission" from the national or provincial police chiefs or the head of the Professional and Security Division, officers due to be questioned would be free to refuse to allow searches. This would give them an opportunity to conceal evidence.
This type of obstruction is clearly a breach of Article 121 of the Criminal Code (KUHP). In corruption cases, Article 21 of the Eradication of Corruption Offenses Law states that anyone who intentionally prevents, blocks or causes the failure of an investigation, a prosecution or questioning, can be jailed for 12 years and fined up to Rp600 million.
There are accounts of police officers getting involved in KPK investigations. The driving test simulator case four years ago with Insp.Gen. Djoko Susilo as the suspect is one example. Then, KPK investigators who went to the Traffic Police building were obstructed by officers on duty. Investigators also found it difficult to access evidence stored in the KPK warehouse because it was guarded by police officers. In several other cases, senior officers seemingly protected subordinates who were being investigated.
To stop this from becoming a bad precedent, Tito must immediately withdraw the circular. It is not impossible that other institutions such as the House of Representatives (DPR), the Attorney General's Office or the Supreme Court will issue the same type of instruction. This could then lead to tension between law enforcement agencies. The statement that summons or confiscations can only take place with the permission of the national police chief, for example, gives the impression that he is "above" other law enforcers. This must not happen. (*)
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