Corruption Crimes in Penal Code Draft: A Threat to Corruption Eradication
KPK and Corruption Court to be paralysed, corrupt officials to benefit
On Monday, March 5, 2018, the House of Representatives (DPR) returned to meet after finishing the recess period. One of the legislative works of the House of Representatives that needs to be noticed during this current session is the process of deliberation of the Draft Criminal Code (RKUHP). The House of Representatives is targeting to pass the RKUHP to Law no later than April 2018.
Substantially, the existing RKUHP is considered to endanger democracy, human rights enforcement, and eradication of corruption in Indonesia. A group that strongly rejects the RKUHP is the National Alliance of Reform of the Criminal Code. This alliance has a membership of several institutions such as ICJR, Elsam, YLBHI, ICW, PSHK, LeIP, AJI Indonesia, KontraS, LBH Pers, Imparsial, HuMA, LBH Jakarta and PSHK.
The Alliance states there are seven reasons why RKUHP should be rejected. First, it has a punitive/imprisonment perspective and repressively opens the space of criminalization beyond the existing colonial legacy Criminal Code (over-criminalization). Second, it is not in favor of vulnerable groups. Third, it threatens government development programs, particularly health, education, family resilience, and community welfare programs.
Fourth, it threatens freedom of expression and the democratic process. Fifth, it contains many flexible and vague articles that encourage the practice of criminalization. Sixth, it threatens the existence of independent institutions. Seventh, it has been discussed without involving the public health, social, development planning, correctional, and other related sectors.
Related to the issue of corruption eradication, the discourse of codification of the crime of corruption into the RKUHP still raises an issue. The issue cannot be separated from the implication, which could potentially restrain the authority of independent institutions such as KPK in the effort to eradicate corruption.
In the February 2, 2018 version of the Draft, the provisions concerning crime or corruption are stipulated in Articles 687-696. Some of the provisions in Law Number 31 of 1999 juncto Law Number 20 of 2001 on Corruption Eradication (Anti Corruption Law) have been adopted directly into the RKUHP. In the draft there are at least six articles similar to Articles 2, 3, 5, 11 and 12 of the Anti Corruption Law.
ICW notes that there are at least 12 critical points of the formulation of the crime of corruption in the RKUHP (See Appendix II), which have the potential to undermine efforts to eradicate corruption. Of the 12 critical points, there are 4 consequences that could significantly undermine corruption eradication efforts as well as the KPK's authority, if the RKUHP goes to be legalized.
First, it restrains the authority of the KPK to take legal measures and to prosecute. Although the Government and the House of Representatives often argue that the legalization of the RKUHP will not interfere with the work of the Commission, the reality is otherwise. KPK's authority in conducting investigation and prosecution in the Corruption Eradication Commission Law is no longer valid if the RKUHP is legalized. This means that the KPK is no longer authorized to handle corruption cases regulated in the Criminal Code. In the end the KPK will only become the Corruption Prevention Commission because it cannot conduct legal measures and prosecution.
KPK's authority is contained in Article 1 paragraph 1 of Law Number 30 of 2002 (KPK Law), specifically mentioning that the KPK has the authority to crack down on corruption as regulated in Corruption Law. If the crime of corruption is included in the Criminal Code, then the authority to conduct investigations in the case of corruption will be turned to the Prosecutor and the Police because these two institutions can handle corruption cases that are not set in the Anti Corruption Law.
Secondly, besides the KPK, the Corruption Court also has the potential to be trapped in a legal limbo if the crime of corruption is included in RKUHP. In Article 6 of Law Number 46 of 2009 on the Corruption Court, it is essentially mentioned that the Corruption Court only examines and prosecutes corruption cases as regulated in Corruption Law. Thus, if the criminal act of corruption is regulated in the Criminal Code, the case cannot be tried by the Corruption Court and can only be tried in the General Court. Before the Corruption Court was established, the General Court has been known as an institution that freed many corrupt officials.
Third, a number of provisions on the crime of corruption in RKUHP actually benefit the perpetrators of corruption. This condition is different from the Anti Corruption Law that has been considered effective against corruption. The threat of imprisonment and penalties for perpetrators of corruption in the RKUHP is lower than the provisions set forth in the Anti Corruption Law. Even worse, corrupt officials who are prosecuted and even convicted, are not required to repay their monetary gains to the State because the Criminal Code does not regulate a penalty of repaying or returning the money they have collected as corruption.
Fourth, RKUHP also does not accommodate the provisions of Article 4 of Corruption Law, which states that compensating the state for its financial loss does not remove the crime of corruption. If the provision of Article 4 is not included in the RKUHP, in the future perpetrators of corruption can simply return the financial loss of the State in order not to be processed by the law enforcement.
Based on a number of these notes, ICW declares a rejection to the ratification of the RKUHP and refuses the inclusion of the crime of corruption in the RKUHP. The House of Representatives and the Government should accommodate proposed changes and additions to the crime of corruption in a revision of the Anti Corruption Law, and do not impose such changes, even in a limited manner, into the RKUHP.***
Kelompok masyarakat sipil melakukan aksi "Tolak Bala" di depan Gedung Merah-Putih KPK, 20 Desember 2019, menjelang pelantikan Pimpinan KPK dan Dewan Pengawas KPK Terpilih (Dok. ICW)