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The Independency of the Corruption Eradication Commission 

of the Republic of Indonesia (KPK RI) in Indicators of 

Independent Regulatory Agencies (IRAs) 

 
Rizki Ramadani, Moch. Andry W.W. Mamonto 

Faculty of Law, Universitas Muslim Indonesia 

email: rizkiramadani18@gmail.com 

 

ABSTRACT 

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.   

Keywords: Independent Regulatory Agencies (IRAs), Independence, KPK 

 

INTRODUCTION 

Compared to the United States, it can be argued that the term Independent State 

Institution (LNI) in the context of indonesia doesn’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 

Constitution) 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 

 
1Zainal Arifin Mochtar, (2016), Lembaga Negara Independen: Dinamika Perkembangan dan Urgensi Penataannya 
Kembali Pasca-Amandemen Konstitusi, Jakarta, Rajawali Pers, page 5. 
2Ibid.,page 4-6. 

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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. 

 

ANALYSIS AND DISCUSSION 

Independent Regulatory Agencies (IRAs) Indicators as Indicators of Independent State 

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) states; 

”The term “independent regulatory agency” means the Board of Governors of the 

Federal Reserve System, the Commodity Futures Trading Commission, the Consumer 

Product Safety Commission, the Federal Communications Commission, the Federal 

Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the 

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Federal Housing Finance Agency, the Federal Maritime Commission, the Federal 

Trade Commission, the Interstate Commerce Commission, the Mine Enforcement 

Safety and Health Review Commission, the National Labor Relations Board, the 

Nuclear Regulatory Commission, the Occupational Safety and Health Review 

Commission, the Postal Regulatory Commission, the Securities and Exchange 

Commission, the Bureau of Consumer Financial Protection, the Office of Financial 

Research, Office of the Comptroller of the Currency, and any other similar agency 

designated by statute as a Federal independent regulatory agency or commission”.3 

 

Under these provisions, it can be known immediately that there are at least nineteen 

state institutions which explicitly designated as independent state institutions or IRAs. Thus 

exist a role model or blue print regarding what Independent Regulatory Agencies refer to in the 

context of the United States. In contrary, other institutions which are not included in the 

provisions or their institutional characteristics are not entirely the same, not included as the 

IRAs. 

The institutional design of IRAs or independent institution in the United States as 

proposed by Funk and Seamon, elaborate the characteristics of IRAs into the following 

elements; 

“These characteristics are (1) They are headed by multi-member groups, rather than 

a single agency head; (2) no more than a simple majority of these members may come 

from one political party; (3) the member of the group has fixed, staggered tems, so that 

their terms do not expire at the same time; and (4) they can only be removed from their 

position for “cause”, unlike most executive officials, who serve at the pleasure of the 

president.”4 

 

While Zainal Arifin Mochtar as he quoted fro, Milakovich and Gordon describes some 

of the characteristics of American and European independence Institution as follows; 

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. 

 
3More see “The Paperwork of Reduction Act of 1980”. 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 
4William F. Funk dan Robert H. Seamon, 2001, Admisnistrative Law: Examples and Explanations, Apen Law & 
Bussiness, Printed in the United States of America, New York, page 7. 

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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 balance5. 

 

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 

 
5Zainal Arifin Mochtar Husein, dkk., “Efektifitas Sistem Penyeleksian Pejabat Komisi Negara,” Final Report Penelitian, 
kemitraan partnership, 2008, page 11. 
6Mark Thatcher, “Independent Regulatory Agencies ini Europe”, downloaded from 
http://www.hec.edu/heccontent/download/3643/137514/version/2/file/Thatcher.pdf pada 18 mei 2016. 

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functions by combining the legislative, executive and judicial powers. Regarding this quasi-

characteristic authority Funk and Seamon point out; 

“Specifically, an agency may have (1) the “quasi-legislative” power to adopt regulations 

that control people’s everyday conduct; (2) the executive power too enforce those 

regulatios and ther law that he agency is responsible for administering; and (3) the 

quasi-judicial power to apply those regulations and laws in individual cases.…some 

agencies not only combine powers resembling those of the three separate branches 

but also are somewhat insulated from presidential control, these are called 

“independent agencies”..”7 

In American and European countries, It's widely known that the state institutions which 

categorized as IRAs have regulatory authority or rule making function.8 This "self regulatory" 

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. 

b. Multi-member groups, namely the Leadership model that plural or collective leadership 

is composed of several people with decision making that is collegial 

c. Nonpartisan members; Leadership that is not majority and not dominated from one 

party or certain group 

d. Definitive terms of Office; namely the defined and definitive term of office of the 

member. 

2) Functional Independence, consisting of; 

a. Regulatory Authorities / Quasi Legislative power; namely having the authority of 

rulemaking or stipulating regulations in certain fields mandated and established by law. 

 
7 William F. Funk dan Robert H. Seamon, Op.cit.,hlm. 23-24. 
8Fabrizio Gillardi, 2008, Delegation In The Regulatory State, Independent Regulatory Agencies In Western Europe,  
Edward Elgar Publishing Limited, United Kingdom, page. 22. 

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b. Sanctioning Authorities / Quasi judicial power; ie whether an LNI has the authority to 

independently conduct investigations, prosecutions, imposition of sanctions or other 

authorities relating to judicial functions. 

3) Institutional Independence, which consisting of; 

a. Financial and Organizational management; namely whether the institution have 

independence in regulating and determining budget and managing internal affairs. 

b. External Relation; namely the mechanism of inter-institutional relations. The extent to 

which the LNI independent from influence and dependence with other institutions. 

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 

independence are institutionalized and reflected in it’s legal provision which is Law no. 30 of 

year 2002 concerning the Commission for the Criminal Act of Corruption. Based on the formal 

independence indicator in the concept of Independent Regulatory Agencies or IRAs which are 

consisting of personnel independence, functional, and institutional aspects and their respective 

elements, the independence of KPK can be seen in the following table; 

 

 

 

 

 

 

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Tabel 1. 

Formal Independence of KPK 

Independency Aspect 
Elements of 

Independency 
Exist/ 

Not exist 
Legal provision 

 

 personel independence Appointment and 

dismissal protection 

Exist -Article 32 (1) The Chairman 

of the Corruption Eradication 

Commission shall cease or be 

dismissed for: a. die; b. 

termination of his office term;c. 

become a defendant for 

committing a criminal offense; 

d. remain unattended or can 

not perform its duties 

continuously for more than 3 

(three) months ; e. resign; or f. 

subject to sanctions under this 

Act.  

- Article 22 (2) The selection 

committee shall be established 

by the Corruption Eradication 

Commission. 

- Article 30 (1) The Chairman 

of the Corruption Eradication 

Commission shall be elected 

by the Congress of the 

Republic of Indonesia among 

the candidate proposed by the 

President of the Republic of 

Indonesia. 

 

Multi member 

groups 

Exist - Article 21 (1) The Corruption 

Eradication Commission shall 

consist of: the Chairman of the 

Corruption Eradication 

Commission consisting of 5 

(five) internal members. 

- Article 21 (5) The boards of 

Chairman of the Corruption 

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Eradication Commission shall 

work collectively. 

 

Nonpartisan 

member 

Exist - Article 29 To be eligible to be 

appointed as the Chairman of 

the Corruption Eradication 

Commission, one shall meet 

the following requirements: ... 

h. not being a member of a 

political party; i. releasing 

structural positions and / or 

other positions during 

membership of the Corruption 

Eradication Commission;  

 

Definitive terms of 

Office 

Exist - Article 34 The Chairman of 

the Corruption Eradication 

Commission shall hold the 

office for 4 (four) years and 

may be re-elected for one term 

only. 

 functional 

independence 

Regulatory 

Authorities/Quasi 

Legislative power 

Not Exist  

Sanctioning 

Authorities/Quasi 

judicial power 

Exist - Article 6 letter c: conduct 

investigation and prosecution 

of corruption; 

 

Institutional 

independence 

Financial and 

Organizational 

management 

Exist - Article 64 All fees required for 

the performance of the 

Commission's duties 

Corruption Eradication is 

charged to the Revenue 

Budget and State 

Expenditures. 

- Article 25 (1) The Corruption 

Eradication Commission: 1. 

establishing the organization's 

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policy and organization on the 

implementation of the duties 

and authorities of the 

KPKCorruption; 2. appoint and 

dismiss Head of Division, Head 

of Secretariat, Head of Sub-

Division, and officer in chargeto 

the Corruption Eradication 

Commission; 

 

External Relation Exist - Article 6 letter b: 

supervision on the authorized 

institution in corruption 

eradication; 

- Article 15 Point 2: The KPK 

shall prepare an annual report 

and submit it to the President 

of the Republic of Indonesia, 

the House of Representatives 

of the Republic of Indonesia, 

and the State Audit Board; 

 

 

Based on Table 1 it can be seen that the institutional design of the Corruption 

Eradication Commission as contained in the provisions of Law 30 of year 2002 almost fulfill all 

of formal independence indicators in the concept of IRAs. In terms of personnel independence, 

the KPK has met the mandatory requirement to be categorized as IRAs, referring to the 

mechanism of removal protection, ie the regulation concerning dismissal of 'certain causes' 

which does not depend on the 'political taste' of the President. Similarly, the collegial leadership 

model and the collective decision making process. 

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 

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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 

 
9For 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. While in the third conflict, beginning 
with the determination of the suspect by the Commission against Komjen Budi Gunawan who is a candidate for Chief 
of Police. In the aftermath of this long feud, two KPK commissioners, Abraham Samad and Bambang Widjoyanto, 
were arrested by the Police Criminal Investigation Unit (Police Criminal Investigation Unit) each with a family card case 
and alleged witness briefing by BW when handling election dispute cases in the Constitutional Court. Automatically 
both are disabled as KPK leaders. While on the POLRI, Komjen Budi Gunawan canceled off as the Chief of Police 
was replaced by Baddrodin Haitian commander. See Tempo Magazine, "Sim Salabim SIM Simulator", 23-29 April 
2012 edition. 

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In practice, it can be concluded that in terms of the de facto independence,  KPK has 

great constraints in the aspect of The use of power to overturn the decisions of IRAs, as proved 

by the frequent intervention of POLRI in the exercise of the KPK's authority. Whereas 

specifically in corruption, the act regarding KPK has determined that it has supervision authority 

over other institutions. This agency's intervention has not been included from the alleged effort 

of systematic weakening against KPK by the legislative through revision of KPK and KUHAP 

regulation. For example with the proposal to revoke KPK's authority in recruiting independent 

investigators, and forming an executive council that acting as extension of the president's hand 

to control and oversee the performance of the KPK.10 The idea of revision on the Corruption 

Eradication Commission by legislative which is non-transparent and not disclose will affect the 

existence of KPK as law enforcer.11 Recently, the public was also preoccupied with the 

question of the right of inquiry submitted by the legislative  (DPR) against the KPK, which then 

led to the final decision by the Constitutional Court allowing such action. In the Departures 

(dismissal and resignation) indicators, the KPK was reaping very bad results. Throughout the 

KPK's record, there were several commissioners who were disbanded before their term ends. 

among them is the former KPK Commissioner Antasari Azhar, who was found guilty of a crime 

of premeditated murder.In KPK volume II, commissioners Chandra Hamzah and Bibit Waluyo 

also had dimissed in charge of the bribery case. In addition, there is also Abraham Samad, 

former chairman of the Corruption Eradication Commission in the third regime who was hit by 

a family card forgery case, and Bambang Widjoyanto who holds the status of a suspect in 

Bareskrim POLRI for the case of witnesses manipulation. Both are dismissed by the President, 

even though the provisions state that Commissioner  can only be dismissed if he/she has bear 

the status of a defendant. In the aspect of Politicisation of Appoinments, the discourse of the 

politicization of KPK began to emerge since the election of the KPK in 201612, where the names 

are predicted to be strong and have a good track record was not removed by the House. There 

are allegations that the House of Representatives tends to vote for one candidate with the 

same agenda and interests of the House.13 Particularly in the election of Basaria Panjaitan with 

the background of POLRI, it is considered that the public is not in line with the effort to 

independent KPK from the influence of POLRI. 

 

 
10Lihat http://www.cnnindonesia.com/politik/20151007125208-32-83389/icjr-dewan-eksekutif-intervensi-pemerintah-
di-kpk/ lihat juga https://nasional.tempo.co/read/news/2012/03/14/063390078/ada-upaya-dpr-terus-intervensi-kpk 
11Indriyanto Seno Adji, “Inisiatif Pelemahan atau Penguatan KPK?” article in Harian Suara Pembaruan, Friday, 12 
February 2016. 
12http://nasional.kompas.com/read/2015/12/18/07585511/.Komposisi.Pimpinan.Terpilih.KPK.Mengkhawatirkan. 
13See http://news.liputan6.com/read/2391399/abdullah-hehamahua-dpr-bakal-pilih-pimpinan-kpk-sesuai-selera 

https://creativecommons.org/licenses/by-sa/4.0/
http://www.cnnindonesia.com/politik/20151007125208-32-83389/icjr-dewan-eksekutif-intervensi-pemerintah-di-kpk/
http://www.cnnindonesia.com/politik/20151007125208-32-83389/icjr-dewan-eksekutif-intervensi-pemerintah-di-kpk/
https://nasional.tempo.co/read/news/2012/03/14/063390078/ada-upaya-dpr-terus-intervensi-kpk


  

 

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Tabel 2. 

 De facto Independence of KPK 

Independency Elements Description 

Politicisation of appoinments Politicisation by legislative in the selection 

process of  commissioner candidates. 

Departures (dismissal and resignation), Some of KPK Commissioners are dismissed 

before the office term due to criminal cases. 

The use of power to overturn the decisions 

of IRAs  

Intervention to KPK's authority by National Police 

Department, ressitance and some efforts to 

weakening the institution by the legislative. 

 

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. 

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