Position of Public Official as Accused in Perspective Presumtion of innocence

        "A Rule becomes law only if it has fulfiled some moral criterion, and not merely because it complies with formal requirement." This opinion was told by Fuller in the book jurisprudence: an Out line. In that view, it must be interpreted that moral are importent component in forming law.

       Lately there has been dabate in the community as well as in the media regarding Pilkada issue then briefly highlighted the active return of the Governor of DKI Jakarta Basuki Tjahaya Purnama alias   Ahok who was accused of blasphemy.

       Legal Politics in Indonesia already shows that a person's status in a criminal justice system, both suspects, defendants, convicts and ex-convicts , have an impact on certain public positions. The process can effect nomination or as a basis for dismissal. Related the prolems of the Governor of DKI we are talking about dismissal forms. In practice when seen in action in the case,  for example the governor of North Sumatra, Banten, and other regional heads suspected  of corruption, within days of being a suspect, a letter of dismissal was issued while they were active.

       Let's examine how status in the criminal process affects administrative positions through a number of decisions of the Constitutional Court. In 2009, Bibit Samad Rianto and Chandra Hamzah, who were then leaders of the Corruption Eradication Commission, submitted a submission for Article 32 paragraph (1) lettec c of Law No. 30 of 2002 concerning the Corruption Eradication commission which states that "The Chairperson of the Corruption of the Corruption Eradication Commission (KPK) has stopped or was dismissed because he became a defendant for commiting a crime". 

       At that time, the decision of the Constitutional Court (MK) No. 133/PUU-VII/2009 granted the request of the former KPK leaders by forming constitutional ruling stating that the KPK leadership was dismissed after obtaining a permanent legal decision or simply said to have been convicted.

       Based on the decision of the Constitutional Court above, we can take lessons that previously the KPK leader who was named as defendant must stop permanently, but with that change, it is enough to wait for the status to turn to convict. One of the philosophical foundations of the decision is the principle of presumtion of innocence or presumption of innocence. However, this matter is about a permanent dismissal. 

       In the development of the Jakarta governor's discourse is about a temporary dismissal. In this case, we can refer back to the decision of the Constitutional Court Number 25/PUU-XIII/2015 concerning Aticle 32 paragraph (2) of the KPK Law which suspends KPK leaders whose status has become a suspect. At that time Bambang Widjajantosued the article, but th Constitutional Court refused to submit the petition. 

       As for one of the considerations of the contitutional court in that decision, the KPK is an institution that was built based on the principle of reparatoir condemnatoir, namely to punish and improve. Namely, one of them restores the rights of the suspect and if it is not proven and the status of the suspect is revoked.

       The question then is whether the KPK leadership can be compared to the regional head. To answer this problem, we can take value in the decision of the Constitutional Court Number 14-17/PUU-V/2007 regarding the requirements as a candidate for regional head. The Constitutional Court in its decision stated, as elected officials, the convict's status even though he has been serving his criminal offense can't run for up to 5 years after he is serving his sentence. However, in its development, the Law on elections has changed and one of them is about this. One consideration in the rulling is "The election is not entirely left to the people without any conditions at all and solely on the grounds that the people will bear all the risks of their choices"

       This depends on the meaning that elected officials are positions that are directly responsible to the people who vote so that the nomination process is only in ciminal proceedings must be explicitly shown and there are restrictions under certain conditions. This is then strengthened in Article 83 paragraph (1) of the Regional Government Law which states that the regional head is suspended by the president if he becomes a defendant with a criminal threat of at least 5 years or more. 

       The implementation of Article 83 paragraph (1) the raises various problems. In the definition of the defendent it's clear that when the indictment was read at the trial. Meanwhile, criminal threats can refer to the article contained in the indictment. The next question is what does "The Shortest" mean?. In criminl Law, there are three forms of criminal threats, namely indeterminate sentence (using a special maximum threat), indefinite sentence (using a special minimum threat and a aspecial sentence), and a diffinite sentence (a definite criminal form).

       It mus be understood that the intent of at least 5 years is an act that is threatened by criminal with a ciminal threat with a maximum threat of 5 or more, not the other way around, namely those who use a special minimum 5 years in prison. The minimum threat of 5 years imprisonment is only in Law No. 26 of 2000 concernibg Human Rights Courts. Therefore, if the governor is threatened with a sentence of 5 years or more, he can fulfill Article 83 paragraph (1) to be suspended. Under the KPK law alone, to maintain the authority of the KPK leadership and maintain his position, the status of the suspect is sufficient to temporarily lay off.

       The conclusion is that the status of the defendant at the governor is no longer a debate if he still wants to maintain the authority and position of the governor himself to achieve the criminal objectives of the dismissal concept. This doesn't violate the principle of presumption of innocence as previously revealed.