2nd Winner ALSA National Law Essay Competition 2013

Corruptors Must Not Die: A View of Indonesian Death Punishment for Corruptor

Corruption is the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person, contrary to duty and the rights of others. 1 Corruptor is everyone, including corporation, who unlawfully enrich himself or someone else that damages state financial. 2 Corruptors simply take public money that is for public service, to fulfill they’re own personal interest. It harms poor people more than others, stifles economic growth, and diverts desperately needed funds from education, healthcare, and other public services. The amount of corrupted money is ample which may lead to public devastation.3 In Indonesia, corruption occurs through system of politics and governance.

The earliest eye-catching corruption case, is the arrest of the Judge of Constitutional Supreme Court who should be on the frontline in fighting crimes. Due to corrupted system, someone who is not tempted to corrupt, may become corrupt. And, Of course, it is a heaven for those who are mental-corrupted to feed their greed.

According to the rampant corruption cases, death punishment for corruptor is now a public discourse that stimulates controversies. Notwithstanding, is death punishment for corruptor the best alternative to fighting corruption?

Prior to that, the right to life is the very basic human right. This right is guaranteed by Universal Declaration of Human Rights 1948, particularly under 1

Henry Campbell Black, Black’s Law Dictionary, 4th edition, (Minnesota: West Publishing Co,

1968).

2

Indonesia, The Anticorruption Law, the Law of Indonesia Number 31 of 1999, State Gazette Number 140 The Year of 1999, State Gazette Addition Number 3874, Article 2 Paragraph 1.

3

UNODC, “Impact of Corruption on Development ad How States can Better Tackle Corruption Under The Spotlight at UN Anticorruption in Morocco 2011”, http://www.unodc.org /islamicrepublicofiran/en/impact-of-corruption.html. accessed in October 8th 2013.

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Article 3. This makes the death punishment our most fundamental human rights violation. As for corruption, the act of corruption focuses on stealing public money or asset. The compatible punishment is to restore the lost money or asset. It has nothing to do with death punishment.. Further, the deterrent effect of death punishment has never been proven. 4 Until today, in Indonesia, there is no corruptor punished to death and just a few who faced heavy sentence. We have the death punishment law in The Anticorruption Law. However it takes special circumstances to apply, such as corruption on nationwide catastrophe fund, economic crisis tackling fund, and social chaos tackling fund.5 On the contrary, several corruptors are forgiven from charge, that is for those who have managed to give back the corruption asset. Although, pursuant to Indonesian Anticorruption Law Article 4, the restoration of corrupted public asset, doesn’t abolish the punishment. 6 Criminal system in Indonesia, professes combination theory. This theory consists of an idea to retribute the crime and to maintain public security. Purpose of punishment is varied and of those is to restore the damage in society. 7 Particularly for corruptor, death punishment is regulated under The Indonesian Anti Corruption Law Article 2 Paragraph 2. The purpose of death punishment for corruptor, is to make deterrence.8 Anyhow, death punishment is particularly risky in a country whose

4

Center for Constitutional Human Rights, “Death Penalty is a Human Rights Violation: An Examination of The Death Penalty in The U.S. from A Human Rights Perspective”, http://ccrjustice. org/files/CCR%20Death%20Penalty%20Factsheet.pdf. accessed in October 12th 2013.

5

Indonesia, The Revision of Anticorruption Law, The Law of Indonesia No. 20 of 2001, State Gazette Number 140 The Year of 2001, State Gazette Addition Number 4150, Explanation of Article 2 Paragraph 2.

6

Eggi Sudjana, Republic Without The Antigraft Commission: Corruptor Must Die (Republik Tanpa KPK: Koruptor Harus Mati), (Surabaya: JP Books, 2008), p.147.

7

Ibid. p.62.

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justice system is still covered by corruption itself. Where certain parties try to persuade judges or prosecutors to put heaviest sentence, regardless what evidences can prove. There is no guarantee that a sentence is objective.

As we can see, It is difficult to apply death punishment for corruptor. That makes deterrence as purpose becomes not feasible to attain. But, it is not the end.

Taking the corrupted asset from corruptor, can be seen as a way out. To the extent, bankrupting corruptor is what law can enforce to implement this idea. This can be done by confiscating every asset stolen by corruptor. Government official which has the rights to do this is The Antigraft Commission (KPK) based on The Antigraft Commission Law. Pursuant to The Anticorruption Law Article 18 paragraph 1 point b, payment of substitution money is as much as asset taken from corruption action.

The asset itself can be moveable (tangible or intangible) or immovable asset that used to corrupt or as the result of corruption. The way to determine how much asset taken from act of corruption, is by calculating asset prior court award and asset given to other parties (money laundering).9 Corruption can also be integrated with money laundering. Money laundering is the act of placing, transferring, paying, purchasing, granting, donating, entrusting, taking abroad, exchanging, and other activities asset that is identified or estimatedly obtained from an act of criminal, in order to hide or to indistinct the asset as it comes from legitimate resource.10 If a corruptor does one of these elements, he/she may also face money laundering charge beside corruption charge. Money laundering is what a corruptor usually applies to cover their corruption money. Through The Indonesian

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Didik Endro Purwoleksono, “Corruptor Deserves Death Punishment (Koruptor Layak Dihukum Mati)�, http://www.beritametro.co.id/fokus/koruptor-layak-dipidana-mati. Accessed in th October 8 2013.

9

Efi Laila Kholis, The Payment of Substitution Money in Corruption Case (Pembayaran Uang Pengganti dalam Perkara Korupsi), (Jakarta: Solusi Publishing, 2010) p.15.

10

Indonesia, The Revision of Antimoney Laundering Law, The Law of Indonesia Number 25 of 2003, State Gazette 108, State Gazette Addition 4324. Article 1 Point Number 1.

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Antimoney Laundering Law, confiscation can be applied, pursuant to The Indonesian Antimoney Laundering Law Article 7 Paragraph 2 point B. Referring to Gayus Tambunan case which confiscation had been done on, The Court of Anticorruption has given an award to confiscating billions rupiahs of money and asset.11 Judging from the numerous corruption cases happening in Indonesia, and if those corruptors be carried out to bankrupt, there can be trillions of asset that may go back to nation pocket. With the amount of money, economic development may rise and so does infrastructure development. Foreign investment may be stimulated significantly. Public welfare will no longer be a daydream.

Bankrupting corruptor is still not enough. Life sentence would deter and would prevent offender to do the same crime in public for as long as he or she lives.

Pursuant to The Anticorruption Law Article 2 Paragraph 1 and Article, unlike death punishment, life sentence is not really strict to apply. In addition, fine can also be implemented to most act of corruptions.

The idea will be effectively performed, if government whole-heartedly supports it. Government willingness to exterminate corruption plays a prominent factor. If the supervising system remains the same, corruption always will exist.

Officials at grassroots level are not fully committed to reforms that can help contain the problem. Also, government or public service must not be seen as a quick route to make money. The salaries and other remunerations must be pruned in such a way that only those who really want to serve, will be the ones going for the positions, and when they get there, they may not have any easy or any access to steal money. 12

11

Reza Fathoni, “Presiden Dukung Pemiskinan Koruptor”, http://nasional.kompas.com/read/ 2012/03/03/08080343/Presiden.Dukung.Vonis.Pemiskinan. accessed in October 12th 2013.

12

Akintokunbo A. Adejumo, “Corruption and The Death Penalty”, http://www.gamji.com/ th article8000/NEWS8912.htm. accessed in October 10 2013.

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Good governance is usually not applied well in the corrupted-bureaucracy system. The unapplied good governance may lower government credibility to public.

It continues on public unwillingness to contribute more in country development like unwillingness in paying taxes and unwillingness in taking care of public facilities. It also could show public low credence on the law, which may lead to unobedience on the law. That is the good governance should be applied to establish healthy and trustable governance. 13 Good governance can be set up by, first, supremacy of law which makes sure that government runs the errand based on existing law. Second, transparency which indicates public rights to have open and undiscriminatory service from government.

Third, accountability that shows willingness of government in being responsible for their actions. Fourth, professionality which prioritizes competencies, skills, and code of conduct.14 The process of bankrupting corruptor, has to be conducted under independent and credible supervision. This is extremely important in order to avoid corruption behind corruption.

Bankrupting corruptor can be taken as realization of restorative justice.

Essentially, restorative justice proponents emphasize the need to support both victims and offenders, and see social relationships as rehabilitative vehicle aimed at providing formal and informal social support and control for offenders. 15 Instead of separating the offender, restorative justice sees social support and social control of offenders as the means of to rehabilitation. In corruption context, restorative justice is served by restoring the stolen asset to the country.

13

Sudjana, Op.Cit., p.103.

14

Mardiasmo, Autonomy and District Finance Management (Otonomi dan Manajemen Keuangan Daerah), (Yogyakarta: Andi, 2002).

15

Gordon Bazemore and Mara Schiff, What and Why Now: Understanding Restorative Justice, (Cincinnati: Anderson, 2001), hal.21-46.

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In the end, there several things we really should bear in mind to fighting corruption. Those are bankrupting corruptor with life sentence and a fine as punishment, good governance, and good supervision. Bankrupting corruptor is innegotiable because the need to retrieve the lost money or asset stolen by corruptor.

Good governance and good supervision are essential since corruption is widespread in the government body. As Lord Acton said, “Power tends to corrupt. Absolute power corrupts absolutely.�

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* 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.

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