Expert: Constitutional Court Ruling on Obstruction of Justice Provisions May Complicate Prosecution of Intellectual Authors of Corruption
The Constitutional Court’s ruling removing the phrases “direct” and “indirect” from Article 21 of the Anti-Corruption Law (Law on Corruption Offences) has attracted criticism. These phrases were previously used to prosecute parties deemed to be obstructing law enforcement processes (obstruction of justice).
Herdiansyah Hamzah, a researcher at the Anti-Corruption Study Centre (SAKSI) at Mulawarman University, believes the removal of these phrases risks narrowing the scope of enforcement actions against intellectual authors behind corruption cases.
According to Herdiansyah, the obstruction of justice provision in the context of corruption offences is indeed difficult to use to target parties working behind the scenes.
“When discussing corruption offences, it is difficult to target people behind the crime. The construction of the term ‘indirect’ was actually intended to target the intellectual authors of a crime, particularly corruption,” Herdiansyah told Media Indonesia on Monday (2 March).
He expressed concern that the removal of the phrase “indirect” could mean that law enforcement agencies, including the Corruption Eradication Commission (KPK), would only be able to prosecute those who openly and directly obstruct the legal process.
“If the phrase ‘indirect’ is removed, it means there is a possibility that only those who openly, directly, and manifestly obstruct the legal process can be targeted. The question is: what about the intellectual authors behind them?” he said.
Herdiansyah emphasised that instead of removing the phrase, the Constitutional Court should have clarified its interpretation to prevent multiple interpretations or misuse.
“In my view, a better approach would be not to remove the phrase ‘indirect’ but to clarify what is meant by ‘indirect.’ To provide legal certainty, as the Constitutional Court claims, the interpretation should be built upon to prevent multiple interpretations or ambiguity,” he said.
He also questioned the Constitutional Court’s consistency in striking down provisions deemed vague. Herdiansyah noted that many other provisions have long been criticised for being vague and liable to misuse, such as articles concerning insult or defamation.
“I think it is somewhat cherry-picking. There are many provisions that are vague and have even been used to target ordinary citizens. Provisions on defamation or insult, for instance, continue to be problematic and are considerably vaguer than this obstruction of justice issue,” he said.
Furthermore, he believed that provisions concerning insult to the head of state, which have been re-adopted in the new Criminal Code, are more likely to restrict citizens’ freedom of expression.
“Why were those not struck down on the grounds of failing to provide legal certainty and being vague? Those provisions could be used by those in power to target critical voices. That is more directly related to guarantees of freedom of expression,” he said.