The Independency of the Corruption Eradication Commission of the Republic of Indonesia (KPK RI) in Indicators of Independent Regulatory Agencies (IRAs)

This research aims to know, analyze, and formulate the independency indicators of independent institutions based on the concept of Independent Regulatory Agencies (IRAs) in advanced countries (United States and Europe). Also as an efforts to examine and see the extent to which independent institutions in Indonesia meet these indicators. This study focuses on KPK institution that are well known as one of independent institutions in Indonesia. Although in practice it often rise the controversy and resistance from many parties. The method used in this legal research is normative legal research, conducted through literature study or secondary data. Data consists of legal materials primary, secondary and tertiary, which are then processed descriptive-prescriptively. The research also uses several approaches such as legal, conceptual, and case approach. 


INTRODUCTION
Compared to the United States, it can be argued that the term Independent State Institution (LNI) iQ WKH FRQWH[W RI LQGRQHVLD GRHVQ ¶t have any meaningful justification. This is because until the present day there has not been a single article in the legislation which mention the term " independent state " definitively. in the early time of the UUD NRI 1945(1945 formulation, the LNI has not yet found a place of discussion in the constitutional format. 1 Even the term state institution itself has not been discussed. While the 1945 Temporary Constitution (UUDS), used the term "state equipment" to define state institutions, but still has not specifically embedded the word "independent". The legitimacy for the establishment of independent state institution (LNI) just gained quite good sentiments only after the amendment of the 1945 Constitution. 2 The Corruption Eradication Commission (KPK), for example, in Article 3 of Law No. 30 Year of 2002 regarding the Corruption Eradication Commission, states that the Corruption Eradication Commission is a State institution which in carrying out its duties and authorities is independent and free from any influence of power. There is no formulation or further explanation regarding the independent aspect which has been mentioned. In fact, when the KPK translated the word 'independent' in the form of concrete actions against various corruption cases, controversy arose. Even by some parties it is often regarded as a form of arrogance by the superbody institution.
Related to the phenomenon above, it becomes important and strategic to formulate measurable standards of independency for independent institutions. It is also interesting to examine the independency of independent institutions in Indonesia by by referring to the institutional concept and design in Europe and United States. This review will focus on the institutional and independency aspects of KPK as one of the independent state institutions in Indonesia.

METHOD
As a legal research, this research is a study of the concept of independency and institutional independence. Thus this research requires secondary data from literature studies.
Based on this, this research is included in the type of normative research. From its nature, this research is descriptive-prscriptive. information from various aspects of the issues discussed in this research, this research uses several approaches, such as statutory approach, second, case approach, third, conceptual approach.

Institutions (LNI) in Indonesia
In contrast to the existence of Independent Institutions that are still vague in Indonesia, the opposite can be found in the United States and Europe. Where independent state institutions or commonly called Independent Regulatory Agencies (IRAs) are legally guaranteed by the legislation and even explicitly and limitatively mentioned. This exist for example in the provisions of The Paperwork Reduction Act44 (U.S.C. § 3502), which in point (5)  1) The institution has collegial leadership, so decisions are taken collectively.
2) The members or the commissioners of the institution do not serve what the president desires.
3 More see ³7KH 3DSHUZRUN RI 5HGXFWLRQ $FW RI ´. As quoted from https://www.law.cornell.edu/uscode/text/44/3502 This regulation is essentially designed to lighten the administrative burden of government agencies in the private sector by delegating such authority to institutions outside the executive. All of these rules contain procedural requirements for such institutions in exercising their authority. See https://en.wikipedia.org/wiki/Paperwork_Reduction_Act 3) The commissioner's term of office is usually definitive and long enough, for example 14 years for the period of the Federal Reserve Board in America.
4) The period of his position is "staggered". That means, every year each commissioner changes gradually and therefore, a president can not fully control the leadership of the relevant institutions.
5) The number of members or commissioners is odd and decisions are made by a majority of the votes 6) Membership of this institution usually maintains a representative partisan balance 5 .
Thatcher, who analyzed the phenomenon of IRAs in Britain, France, Germany and Italy, drew the conclusion that there are three most important aspects of IRAs, namely the independence of elected officials, relationships with other administrative institutions (regulatees), and decision making process. He then explained that the independence of IRAs in practice can be seen from five indicators which are; 6 1) Party Politicisation of appoinments, which means the greater politicization towards IRAs, the smaller its independence. it also affects greater oversight by elected officials (executive / parliament).
2) Departures (dismissal and resignation), ie the dismissal of IRAs members before the end of the term of office, the more frequent and rapid the dismissal, the lower the independence.
3) The Tenure of IRA members, the longer their tenure, the greater their independence to the elected officials.
4) The financial and staffing resources of the IRA, namely independence in terms of finance and resource management.
5) The use of power to overturn the decisions of IRAs by elected politicians, ie the extent to which government officials are able to change the IRAs' decisions and policies.
In addition to institutional characteristics, independence is also manifested in the characteristics of the authority possessed by the LNI. In the United States, there are many federal government bodies granted constitutional authority by legislatures (through law) to exercise power independently. These federal agencies practically carry out government 5  characteristic is one of the elements of IRAs in beside the independency.
Based on several concepts and models of independence initiated by the experts above, the authors intend to integrate these views in order to establish an ideal standard of independence according to the concept of Independent Regulatory Agencies (IRAs). This independence standard will be used as an indicator in analyzing and examining the independence aspect of KPK institution which becomes the object of study in this research.
Those indicators of independence are formal independence (formal independence) aspects which includes; 1) Personnel independence, which consist of several aspects namely; a. Appointment and dismissal protection, ie mechanism for the appointment and dismissal of the institution's head under certain causation stipulated in law, thus not depending on the will of the president alone. In addition to the formal independence aspects above, the analysis will also be conducted towards the aspects of informal independence (de facto independence). This is done by applying case study approach to several aspects of the authority implementation and real condition of the institution. Some concepts from Mark Thatcher are used as indicator of analysis which are; 1) Politicisation of appoinments, ie to see if there is politicization in terms of appointment of the leadership of the institution.
2) Departures (dismissal and resignation), ie how often the chairman of the institution stepped down from office before his term ended.
3) The use of power to overturn the decisions of IRAs, ie the extent to which other institutions are able to change and influence the decisions or policies of the LNI.

The Formal Independence of Corruption Eradication Commision Republic Of Indonesia (KPK RI)
Speaking about KPK as independent state institution (LNI), the aspect of formal Nevertheless, although in the selection of the commissioners involving a committee chosen by the KPK itself, the final decision to vote is still in the hands of the DPR (congress).
Makes it a big potential for politicization towards the candidates for by the politician. In fact, congress will generally vote for the same candidate based on political preference, or at least as appropriate to their interests. The authority of the Legislative Assembly to elect its own Volume 1, Issue 2, July 2018 : 82 -94 | 91 The Independency of the Corruption Eradication Commission of the Republic of Indonesia .3. 5, LQ ,QGLFDWRUV RI « public officials is still rising a debate in the context of constitutionality, since it is basically the authority of the President as the hig hest executive officer or head of government to do so.
In the aspect of functional independence, unfortunately the KPK has no authority in regulatory or rulemaking, which is one of the important aspects of IRAs. Its tasks, authorities and functions have been implemented based on existing regulations spread in Corruption act, KPK act and general provisions on criminal law procedure. However, basically quasi-judicial authority such as investigation, prosecution and supervision over other institutions in the case of corruption crime is sufficient to classify the KPK as an independent institution.
The formal independence of the KPK also exists in terms of organizational and staffing that can independently managed by the it's own. Thing is also supported by the budget which allocated directly from the APBN (State Budget of income and expenditure). From a relational perspective to other institutions, the KPK's responsibility to provide an annual report to the President, including the House of Representatives (legislative branch) and also audited by BPK, doesn't indicating the dependence of KPK to other organs. in fact, it is necessary to ensure the institution's accountability to the public. It's also used as a control mechanism of the people's and the government in assessing KPK's performance in general.

De facto independence of KPK
It must be acknowledged that behind the institutional design of the Corruption Eradication Commission (KPK) which almost entirely in accordance with the concept of independent state institutions in the modern era (IRAs), its existence in Indonesia is the most often reaping conflict and being exposed to various problems. Since the Antasari Azhar Leadership, the term "lizard vs. crocodile" emerged as an analogy of the KPK conflict against the POLRI. The course of this conflict then not only happened once, but up to three times (Volume I, II, III in the language of the media) in every change of KPK management. The conflicts which occured varies from the issue of criminalization, to the investigation authority dispute between two institutions. 9 9 For example after the conflict of "lizard vs. crocodile" (volume I) in July 2012, the dispute between KPK vs. Police was reopened (Volume II), after KPK appointed former Chief of Police Traffic Corps Inspector Djoko Susilo as suspect of corruption case in SIM simulator project. In fact, before the Police Headquarters has stated, after investigating the internal investigation, did not find the element of corruption in the project, involving Djoko Susilo There was a dispute over the authority between the KPK and Police in investigating the corruption case. KPK commissioner selection has always been a problem. One of them was when the Antasari Azhar Corruption Eradication Commission (KPK) candidate was reported to the Supervisory Section of the AGO on the alleged violation of the code of conduct of the prosecutors by a number of students who joined in the Anti-Manipulation Student Movement (Geram BUMN). In other cases, a pattern that threatens the independence of KPK's filling position has also been conducted by the President against the KPK, which at that time was short of commissioners. As known, the appointment of KPK commissioners as an independent institution requires them to be elected through selection mechanisms, but the President actually issues a PERPPU which in principle enlarges the president's authority to appoint KPK commissioners. If the recruitment mechanism is not corrected immediately, the politicization of KPK commissioner elections will clearly affect the level of independence as an LNI.

CONCLUSION
Based on the description above, the independence of an independent institution or LNI can be divided by two indicators. First, the formal independency which includes aspects of institutional design. This formal indicator can also be used as a reference or blueprint for the future establishment of independent institutions in Indonesia. Secondly, non-formal or de facto independence, which used as indicators in practice, such as politicization election, and external resistance. In the context of the KPK, there has been no correspondence between the formal independence aspect and the implementation according to de facto independence.. The KPK's institutional design, which is formally very independent, yet has not been able to make the KPK truly independent in its implementation level. By that time, the government and the public must be more consistent and have greater commitment regarding to the position and guarantee the independence of KPK in the Indonesian state administration system.