1st Winner ALSA Local Law Essay Competition 2013

THE FIRST ALSA LC UNSRI NATIONAL AND LOCAL LAW ESSAY COMPETITION

Dibuat untuk Memenuhi Syarat Lomba essai ALSA LC UNSRI Jurusan Ilmu hukum Fakultas Hukum Universitas Sriwijaya Oleh :

ISMA NURILLAH

(02111001132)

JURUSAN ILMU HUKUM FAKULTAS HUKUM UNIVERSITAS SRIWIJAYA 2013 The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort 窶的sma Nurillah-

The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort .ﾂｷ Bruce Fein, JD, General Counsel for the Center for Law and Accountability, in an American Bar Association website article titled "Individual Rights and Responsability - The Death Penalty, But Sparingly" (accessed June 17, 2008), offered the following: "Abolitionists may contend that the death penalty is inherently immoral because governments should never take human life, no matter what the provocation. But that is an article of faith, not of fact, just like the opposite position held by abolitionist detractors, including myself... The death penalty honors human dignity by treating the defendant as a free moral actor able to control his own destiny for good or for ill; it does not treat him as an animal with no moral sense, and thus subject even to butchery to satiate human gluttony. Moreover, capital punishment celebrates the dignity of the humans whose lives were ended by the defendant's predation."

Alex Kozinski, JD, Circuit Judge in the US Court of Appeals for the Ninth Circuit, in a Nov. 7, 2002 Hoover Institution "Interview," stated the following: "Immanuel Kant said it best. He said a society that is not willing to demand a life of somebody who has taken somebody else's life is simply immoral. So the question really... when the system works and when you manage to identify somebody who has done such heinous evil, do we as a society have a right to take his life? I think the answer's plainly yes. And I would go with Kant and I would say it is immoral for us not to."

Richard A. Devine, JD, State's Attorney for Cook County in Illinois, in an Apr. 30, 2003 State Attorney's website section titled "Statement on the Death Penalty in Illinois," offered the following: "Our position has been and remains that the death penalty is appropriate for the worst of the worst, people who have committed crimes so atrocious that they are no longer fit to be among us. Up until now, the people of Illinois, through their lawmakers, have said that death is appropriate for the most heinous crimes and criminals. We are now at a point where we should re-examine whether this The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort 窶的sma Nurillah-

remains our policy. We do not have the death penalty because prosecutors have said we should. It is the law of our state. If the law is changed to make life in prison without parole our most serious punishment, prosecutors statewide will, despite whatever personal feelings they may have, follow the law. The legislature must debate this most important issue and reach a decision to give us all a clear understanding of how the worst crimes will be punished."

Steven D. Stewart, JD, Clark County Prosecuting Attorney, in an Office of the Clark County Prosecuting Attorney's website section (accessed July 22, 2008) and titled "A Message from the Prosecuting Attorney," offered the following: "Along with two-thirds of the American public, I believe in capital punishment. I

believe that there are some defendants who have earned the ultimate punishment our society has to offer by committing murder with aggravating circumstances present. I believe life is sacred. It cheapens the life of an innocent murder victim to say that society has no right to keep the murderer from ever killing again. In my view, society has not only the right, but the duty to act in self defense to protect the innocent.

Corruptors2 are the parasite for the development of our country. The benefits are great for the people of Indonesia when there is not corruption anymore.

A prosperous Indonesia is not a dream. There are so many corruptor cases in Indonesia, thus corruptors should be given death sentence. There are three argument the corruptor should get death sentence that are to scare the people to do corruption, to decrease the number of corruption in Indonesia, and to increase the pride of Indonesia to the world’s perspective.

Death sentence can scare the people to do corruption. The punishment that given to corruptor is really weak. The legal basis for criminal (civil) corruption is Law No. 31 of 1999 on Combating Corruption, which is then updated with the Act No. 20 of 2001. In the Act, set how many prison sentences and fines of minimum and maximum for those found guilty of corruption.

1. http://deathpenalty.procon.org/view.answers.php?questionID=1324 2.

Corruption is dishonest actions that destroys people's trust in the person or group, like the news of corruption in how your bank is run, that makes you close your account and invest your money somewhere else.

The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort –Isma Nurillah-

The penalties range prison, and rely on the

from 1 year up parties

person who bribed or bought

to

to a

a criminal

off). But

maximum act

there

of

of 20 years

in

corruption (whether the

is repetition and

ambiguity

in some chapters.

Giving death sentence can decrease the number of corruption in Indonesia.

Because death sentence is scaring people to do corruption, it can minimize the number

of

corruption

case

in

our

country.

Nur Wahid said, the

death

penalty is applied in order to create a deterrent effect for criminals, as well as potential criminals. "It will give confidence to people that in our state laws can be enforced and there is protection for the people," he said. The execution, the former PKS president,

should be

application

done firmly and quickly. He

believes the

of the

deaths

penalty will not leadto international protests. "Malaysia andSingapore can apply, wh y Indonesia did not," he said. The nation, he said, requires a firm choice and the courage to establish the death penalty for corrupt.

Death sentence can increase prosperity and the pride of Indonesia to the world’s perspective. If our country is free from corruption, automatically our country will get more prosperity and we will not feel embarrassed to our corruption rank.

Metrotvnews.com, Padang: Vice Chairman of the Corruption Eradication Commission (KPK) M Jasin revealed, according to survey results of Political and Economic Risk

Consultancy (PERC)

2010 Indonesia are

the most

corrupt

country in Asia Pacific. PERC survey results (9.27) was put Indonesia in the first rank as the most corrupt country of the 16-nation Asia-Pacific is the purpose of investment, M Jasin said in Padang Thursday (11/8).

In conclusion, our government should firmly apply the death sentence for the corruptor because there are provident that death sentence can give scary effect to the people who want to do corruption and can decrease the number of corruption case that can increase prosperity so we do not feel embarrassed again for our world corruption rank.

Since 1999, in order to eradicate corruption, Indonesia enacted Law Number 31 Year linking to Act Number 20/2001 about The Effort to Eradicate Corruption The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort –Isma Nurillah-

and also founded Corruption Eradication Commision and Special Court of Corruption. In general, we believe that Indonesia has adequate tools to eradicate corruption. However, until present, corruption has increased and spreaded in many sectors. Thus the issue of giving extraordinary sanction to eradicate corruption is going to debate. Many people believe that extraordinary sanction which is the death penalty should be implemented to give deterrent effect for corruptors. This essay will consider some arguments that reject the implementation of the death penalty for corruptors and point to some problems with this view. Then it will put forward reasons to implement the death penalty by amendment of Explanation of Article 2 (2) in Law Number 31 Year linking to Act Number 20/2001.

Firstly, Article 28 (I) UUD 1945 states that everyone has the right to live.

Most Indonesian, so this argument goes, believe that the judge can not punnish the corruption suspect with death penalty. However this argument is a result of partial view regarding the right to life. People should read constitution comprehensively because all of the article in UUD 1945 is related to each other, in that way, people should also read carefully at the Article 28 J (2) when they try to find the rule of the right to life. Article 28 (2) states that Law (Undang-Undang) are allowed to band a person’s right if it violates other people right to life, public interest, national security and morality. Therefore it is legal to band the right of life by the implementation of the death penalty because as stated in the preamble of UNCAC “…corruption undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish..” (UN, 2004). The death penalty is not only legal based on the Indonesian Law but also it is in line with the Utilitarianism theory by Jeremy Bentham, the greatest happiness of the greatest number of people is the foundation of morals and legislation (Jeremy Bentham, 1926). Then it is allowed to punnish corruptors with death penalty in order to serve other people rights.

Secondly, many people believe that judges are still human that could create mistake in their decision. Thus death penalty could not be implemented properly.

When the legal apparatus execute the death penalty to the defendants, there is no remedy for a mistake. This argument is based on the condition in the past when the The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort –Isma Nurillah-

law enforcement a system that stiil underconstruction. However, nowadays, the defendants have the right to appeal and also to propose amnesty. So, there are many ways to correct the decision by the high level of trial and the presidential decree.

Thridly, many people doubt that the death penalthy can give deterrent effect.

Based on psychology approach, cruel punnishment will make people afraid to do this crime. In addition, in criminology approach, it is called the deterrent effect. Indeed Abraham Samad (the Head of Indonesian Corruption Eradication Commission) said China was quick to handle corruption by applying the death penalty, which has the deterrent effect (Tempo, 2012). Furthermore, Rimawan Pradiptyo (Lecturer at Universitas Gadjah Mada) said that the death penalty also will reduce the high cost of rehabilitation in jail. We should consider that we lose so much of the national fund for the cost of rehabilitation thus it was not equal with the amount of money that we got from the effort of asset recovery of the corruption cases (Detik, 2012).

Finally, the Explanation of Article 2 (2) in Law Number 31 Year linking to Act Number 20 (2001) The Effort to Eradicate Corruption states that death penalty can only be implemmented in extraordinary conditions (disaster, political rush, etc).

Until present, the legal apparatus has not implemented this provision though they investigated many disaster corruption cases. Based on the explanation above, they should not hesistate to implement the death penalty. Futhermore, in order to strengthen the corruption eradication effort, the parliament and goverment should make the ammadement that article for corruption not only in exraordinary conditions.

It could be the maximum penalty for corruption which causes national lost fund above Rp 100 million. In the future, I do believe that it will give deterrent effects and reduce the corruption rate in Indonesia therefore Indonesian people will foster prosperity easily.

Nowadays, the corruption in Indonesia is rapidly increased. For the corruptors, it is not law infringement, but it is a habitual activity. Indonesia becomes a country which has many corruptors in rank 16 in Asia Pacific. Why is it happen in Indonesia?

Will the government solve the problem? To solve that problem, the government should give the corruptors the death penalty. The corruptors should be given the The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort 窶的sma Nurillah-

death penalty because of a lot of reasons. Some of them are corruptors cause difficulties for economic development, democracy and good governance and increase financial burden for pauper.

The first reason why the corruptors should be given the death penalty is because they cause difficulties for economic development. Economic specialist argued that the first factor of backwardness of economic development in Africa and Asia is caused by corruption which is organized as capital investment. Because of that reason, therefore the corruptors should be given the death penalty. Some people do not agree with this punishment, because they think that corruption is not kind of killing or raping criminal, and death the death penalty is only for someone who kills someone else. However, the corruptors also kill someone else, especially for pauper.

The corruptors also increase the destitution in Indonesia and make the society starve to death.

The second reason is because the corruptors cause difficulties for democracy and good governance. In politic system, corruption causes democracy and good governance by the way bite into the formal process. Corruption in general election and legislative of corporation alleviate accountability and delegation of formation of policy. Generally, corruption undermines institution ability from the government, because of disobedience procedure. In the same time, corruption causes government legitimation and democracy, such as, confidence and tolerance.

The third reason and the most important reason why the corruptors should be given the death penalty is because the corruptors increase financial burden for pauper. Of course, corruption gives negative effect for pauper life, so that the corruptors should be given the death penalty. Some people refuse the punishment if the death penalty is given to corruptors. They argue that the corruptors are entitled to receive a second chance in life. It might be true, but if the corruptors are given the second chance and jailed only, they may again commit the same crime after being released from prison.

From the three reasons above, we can conclude that the corruptors should be given the death penalty. It is because they cause difficulties for economic development, democracy and good governance and increase financial burden for pauper. The government is obligated to the punishment. The government must put The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort 窶的sma Nurillah-

foot down to the corruptors. If the death penalty cannot be given to the corruptors, the corruptors must be given the lifelong imprisonment.

The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort 窶的sma Nurillah-

References Tempo (2012) Honesty a Rarity in Indonesia, Indonesia: Tempo Daily News http://www.tempointeractive.com/hg/nasional/2012/10/04/brk,20121004433776,uk.h tml (23 October 2012).

Jeremy

Bentham(1926) Thelife

of

Philosopher

Jeremy

Bentham:

Summary,http://www.livingphilosophy.org.uk/philosophy/Jeremy_Bentham/ (23 October 2012) Detik (2012) RUU Tipikor Tutup Celah Miskinkan Koruptor, Indonesia: Detik Daily News

http://news.detik.com/read/2011/04/08/162805/1612090/10/ruu-

tipikor-tutup-celah-miskinkan-koruptor?nd992203605 (23 October 2012) The Center of Anti-Corruption Studies Faculty of Law Universitas Gadjah Mada.

(2012) Trend Corruption Report January-June 2012(23 October 2012) UNODC

(2012) United

Nation

Convention

Againts

Corruption, http://www.unodc.org/documents/treaties/UNCAC/Publications/ Convention/08-50026_E.pdf. (23 October 2012).

Author: Laras Susanti (Researcher at The Center of Anti-Corruption Faculty of Law Universitas Gadjah Mada) This essay was one of my projects when I took EAP at Real English (November 2012)

The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort 窶的sma Nurillah-

* This essay is written for the 1st ALSA LC UNSRI Local & National Law Essay Competition. You may not copy, modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the content of this report, in whole or in part, save as hereinafter provided. You may download or copy one copy of the report you have purchased only for your own personal use for academic study purposes only, however, you may not submit this document under your own name for academic assessment.

The Death Penalty should be Implemented to Strengthen the Corruption Eradication Effort 窶的sma Nurillah-