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Does the Indonesian Military Justice Law limit the power of the Corruption Eradication Commission to investigate and prosecute non-military suspects only?

Corruption at the National Search and Rescue Agency (Badan Nasional Pencarian dan Pertolongan, formerly named Badan SAR Nasional or Basarnas) which involved the Head of Basarnas, Air Marshal Henri Alfiandi, and Head of Basarnas Administration Staff Coordinator, Lieutenant Colonel Arif Budi Cahyanto grabs public attention more than other ongoing corruption cases.

On July 26, 2023, the Vice Chair of the Indonesian Corruption Eradication Commission (Komisi Pemberantasan Korupsi or KPK), Alexander Marwata, in a press conference[1] informed the result of a sting operation on the previous day triggered by a community complaint concerning e-procurement in Basarnas and caught red-handed 11 individuals including Lieutenant Colonel Arif Budi Cahyanto who allegedly received cash IDR999.7 million (USD66,172) on behalf of Air Marshal Henri Alfiandi, from Marilya (MR), President Director of PT Kindah Abadi Utama (KUA Limited Company). KUA Limited Company is known to be the winner in the e-procurements of public safety diving equipment for the amount of IDR17.447 billion (USD1,154,856.85) and remotely operated vehicles for SAR Ship Ganesha for the amount of IDR89.959 billion (USD5,954,592.04).

Despite government procurements for strategic goods and services must be made through e-procurement namely e-catalog, the selected bidders for Basarnas projects apparently have been decided since the start, and other bidders most probably are related companies or owned by winners of the tenders. The Head of Basarnas allegedly asked for 10 percent fees namely command fund (dana komando) from winners of all projects in Basarnas.

Spokesperson for Indonesian National Armed Forces (Tentara Nasional Indonesia or TNI), Commander of Armed Forces Military Police Center, Air Marshal Agung Handoko on July 28, 2023, expressed TNI’s objection in the detention, investigation, and determination of two active military officials as suspects in allegedly corruption case by KPK[2]. According to TNI, based on Law Number 31 of 1997 concerning Military Justice, both military officials shall only be investigated by Oditurat, i.e., an agency within TNI that exercises State government power in the field of investigation and prosecution based on delegation from the Commander in Chief of TNI. Military Justice Law is considered lex specialis (i.e., a law governing a specific subject matter that overrides a more general law potentially applicable to the case at issue), which overrides Law Number 30 of 2002 as lastly amended by Law Number 19 of 2019 concerning Commission for the Eradication of Criminal Acts of Corruption that authorizes KPK to handle the investigation and prosecution corruption at Basarnas.

Following a discussion between KPK and TNI on the corruption case at Basarnas on July 28, 2023, on the same day, another Vice Chair of KPK, Johanis Tanak, in a joint press conference[3] at the KPK Office expressed KPK’s apologies and admitted a wrong procedure by KPK investigators in the investigation and determination of both active military officials as suspects in an alleged corruption case related to the procurement of goods or services projects in Basarnas for the years 2021-2023. With that, the investigation of both military officials will be took over by Oditurat TNI from KPK.

As a response to the statement of Johanis Tanak, Brigadier General of Police Asep Guntur Rahayu, has reportedly resigned as the Director of Investigation as well as the Acting Deputy for Enforcement and Execution of KPK on July 28, 2023, but the spokesperson for KPK, Ali Fikri, on August 2, 2023, announced that KPK rejected the resignation[4].

This controversy leads to public confusion over which government agency has the authority to investigate the matter of corruption in Basarnas. Some argue that KPK has been surprisingly ignorant and acting beyond its authority in determining two active military officials as suspects in the corruption case at Basarnas, whereas some others argue that Basarnas is not a military agency, thus both officials are involved in corruption when acting as civil officials. Moreover, according to Article 42 of KPK Law, KPK is authorized by the law to coordinate and control preliminary investigation, investigation, and prosecution of corruption crimes which are conducted jointly by persons subject to military justice. In fact, there is no provision in KPK Law that limits the Commission’s power to investigate corruption cases, thus, KPK also conducted sting operations and investigate corruption cases that involved parliamentary members (from 2004 to 2020, there have been 274 parliamentary members determined as suspects by KPK[5] and even Supreme Court judges (Sudrajad Dimyati dan Gazalba Saleh)[6].

Besides, the investigation and prosecution by KPK are found to be more transparent than cases handled by Oditurat TNI as most cases handled by KPK are covered by mass media whereas only limited cases handled by Oditurat which became available to the public, such as satellite corruption case at the Ministry of Defense. Whichever agency will investigate and prosecute the corruption in Basarnas, the case is expected to be handled transparently to convince the public about equality before the law.

[1] KPK (2023, July 26). [PENINDAKAN] KONFERENSI PERS KEGIATAN TANGKAP TANGAN DI BADAN NASIONAL PENCARIAN DAN PERTOLONGAN (Video). YouTube. [2] (2023, July 28). LIVE - TNI Sebut KPK Salahi Aturan soal Penetapan Tersangka Kepala Basarnas (Video). YouTube. [3] KOMPASTV (2023, July 28). BREAKING NEWS - KPK Mengaku Khilaf Tak Serahkan Kasus Kabasarnas Henri ke TNI! (Video). YouTube. [4] (2023, August 2). KPK Tolak Pengunduran Diri Direktur Penyidikan Asep Guntur Rahayu (Video). YouTube. [5] Sidik, F. (2020, November 5). Sejak 2004 hingga 2020, Ada 274 Anggota DPR-DPRD Jadi Tersangka KPK. Detiknews. [6] Kamil, I. (2022, September 23). Sudrajad Dimyati, Hakim Agung Pertama yang Jadi Tersangka KPK.


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