Mahfud MD Highlights the KPK Leadership's Authority to Name Suspects
Constitutional law expert Mahfud MD responded to the legal process in the 2024 additional Hajj quota case. The case is currently at the pre-trial stage, filed by former Religious Affairs Minister Yaqut Cholil Qoumas over the status of his indictment. Mahfud urged that the legal proceedings proceed in accordance with applicable rules, without intervention or any deviation from the enforcement of the law. ‘Everything must be correct and in line with the rules,’ he said.
He noted procedural concerns in the case, particularly the authority to designate suspects. He commented on the pre-trial hearings that revealed Gus Yaqut never received an indictment letter, only a notification letter. ‘That is not acceptable. The leadership of the KPK does not have the authority to designate suspects,’ he told reporters on Sunday (8/3).
Regarding the substance of the case, he said there should be careful definition of ‘state losses’ in the Hajj quota case. ‘From the start I was puzzled. The Hajj quota is not state losses; it's not appropriate to categorize it as such. There is no state money involved, is there?’ He emphasised the need for caution in defining the elements of state loss in corruption cases.
Separately, Professor Mahfud praised the 2024 Hajj implementation, ‘I have heard the 2024 Hajj operation was good.’ He said the policy taken by the minister at the time was a legitimate discretion, based on situational considerations and the authority inherent in the office. ‘Discretion cannot be criminalised,’ he asserted.
He explained the concept of discretionary power or freies ermessen in administrative law: policy taken by an official when there is no regulation, but circumstances require a resolution. ‘Pure policy should not be criminalised. If there are rules, follow them; if there are none, then discretion is required,’ he said.
He hopes the case will proceed within the legal framework, without criminalisation, but without room for violations.
Mahfud also argued that this case is not merely about whether corruption occurred, but about how law is positioned within the space of public policy. If law enforcement agencies neglect procedures and blur the line between policy and criminality, not only is a single suspect at risk, but the future governance of the state itself.
South Jakarta District Court is scheduled to issue its ruling on the pre-trial brought by Yaqut Cholil Qoumas on Wednesday, 11 March. Yaqut’s legal team outlined five points in the pre-trial, ranging from the BPK audit procedure to the legality of the suspect designation. A former KPK investigator offered critical notes on the procedures for naming the former Religious Affairs Minister.
Readers are invited to review the facts and expert statements from both sides in the pre-trial regarding suspect designation and state losses.
KPK witnesses in the pre-trial emphasised that the designation of a suspect under the Corruption Act must be based on a tangible and definite audit of state losses.