A Constitutional Court Backslide

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  • TEMPO.CO, Jakarta - The Constitutional Court ruling following a review of the regulations for electronic recordings is a major step backward. Now it will be harder for the public to uncover crimes, including corruption, without using recordings. Voice or video recordings will no longer be admissible as evidence if they are not carried out by law enforcement officers.

    The petition for a reexamination was submitted by Setya Novanto, former speaker of the House of Representatives (DPR) and the current chairman of the Golkar Party. He protested over two laws. The first was the Corruption Law, which contains a provision on 'conspiracy'. For this offense, the Constitutional Court agreed with Setya that the definition of 'conspiracy' must be taken to mean that all those responsible are of the same quality.

    The second was the Electronic Information and Transactions Law, and in particular the provisions on electronic information and documentation becoming legal evidence. Setya complained about Article 5 Paragraphs 1 and 2 and Article 44 Section (b) of this law. 

    These articles cover electronic information and documentation as well as their hard copies as legal evidence. The panel of judges granted part of Setya's petition by ruling that such electronic recordings must be made by law officers. In other words, recordings made by private individuals cannot be admitted as evidence in court.

    This ruling is very good news for Setya, who was accused of extorting the giant mining company Freeport Indonesia. In a scandal that broke in December last year, Setya was alleged to have asked for a gift of shares from Freeport Indonesia boss Maroef Sjamsoeddin in return for smoothing the way for an extension of the company's operating license. Maroef secretly recorded their conversation and reported it to the then Energy and Mineral Resources Minister Sudirman Said.

    It was this recording that forced the DPR ethics council to summon Setya for a hearing. But Setya resigned as DPR speaker before a verdict could be reached. Meanwhile, law enforcement authorities never investigated the case.

    With this Constitutional Court ruling, the authorities have much less chance of prosecuting Setya. The article on conspiracy to commit corruption can no longer be used because the understanding of the offense has been narrowed significantly. Recordings can no longer be used, now that the Constitutional Court has changed the provisions on electronic information and documentation within the Electronic Information and Transactions Law. 

    What this means is that it will be difficult to prosecute Setya over the scandal popularly known as the 'Papa Wants Shares' case.

    Setya's victory in the Constitutional Court ruling is a huge loss for law enforcement, especially in the fight against corruption. The judges should have distinguished between evidence and the way information is obtained. Recordings should have been seen as valid even if they were not carried out according to procedures, especially if the aim is to expose crimes like corruption.

    The police will also find it more difficult to prosecute terrorists because of the changes. For example, in bombings, the involvement of the terrorists, sometimes long before the explosion, is often revealed, then proven, by CCTV footage.

    In addition to making it more difficult to investigate crimes, the ruling that changed the regulations on conspiracy and the use of recordings as evidence is clearly a step backward in the uphill fight to eradicate corruption. (*)

    Read the full story in this week's edition of Tempo English Magazine