Notes on our legal system

(illustration: IO/Rudraksha)

IO, Jakarta – According to an Indonesian proverb, “The law is a knife that is sharp only to those below, but edgeless towards those above”. This proverb is unfortunately true in view of our law enforcement and corruption eradication in Indonesia. 20 years of reforms has not caused the law to reign supremacy in our country, the fact is many cases which have caught the public’s attention remains vague and unresolved.

Such as, in the case of the Saracen group, they spread out hateful speeches and racist/religionist content, as exposed by the Indonesian police (Polri) in 2017. Asma Dewi, a seemingly simple housewife, was accused of being involved in Saracen’s movement by transferring Rp 75 million to its account. Examination of facts and evidence at the court prove Asma Dewi was guilty of having hired Saracen to spread out hateful content by the District Court (Pengadilan Negeri – “PN”) of South Jakarta, and she was sentenced to 5 months and 15 days of imprisonment. She was released this February after having served out her sentence.

There was also a number of attacks made against ulamas or Islamic clerics by “mad persons”, causing injuries and deaths. Intelligence analysts found that it is possible to operate “madmen” like puppets by studying their “berserk buttons”. These manipulators cruelly study what would trigger these madmen’s emotion and aggression, and what might calm them down and prevent their outburst, then they deliberately provoke the poor madmen into anger and aggression.

According to data from Bareskrim Mabes Polri, 21 violent acts against the clergy (of all religions found in Indonesia) have occurred since December 2017: 1 case each in Aceh, Banten, and SCR of Jakarta; 4 cases in East Java; and 13 cases in West Java. Bareskrim Mabes Polri stated that all these are actually ordinary crimes perpetrated with various motives.

Finally, the public still remembers the time when a senior investigator of the Corruption Eradication Commission (Komisi Pemberantasan Korupsi – “KPK”), Novel Baswedan, was suddenly splashed with acid in the face by two men on motorcycles on his way home after having prayed the subuh or dawn prayers at Jami Al Ihsan Mosque, Pegangsaan, North Jakarta. It happened so fast that he did not even have time to evade, let alone see who his attackers were. Nobody else was on site when it occurred (11 April 2017). Even after a year, the police have not captured the perpetrators.

The Novel Baswedan case is just a tip of a very large iceberg. Many corruption cases are so complex. In February 2018, Transparency International released the Corruption Perception Index of world countries for 2017. In this Index, the lower the rank, the more corrupt the country is perceived to be. Indonesia’s Corruption Perception Index point remained the same from 2016 to 2017 at 37 points, but its rank has gone down. Indonesia is in the 96th rank in 2017, while it was in the 90th rank in 2016. Among Southeast Asia countries, Indonesia’s corruption perception is even lower than Singapore (6), Brunei Darussalam (32), Malaysia (62), and even Timor Leste (91).

Data from the Department of Home Affairs stated that 392 Regional Heads are involved in various legal cases and arrested from 2004 to 2017, and 144 DPR/DPRD members have been arrested by KPK from 2007 to 2017. Most of these Regional Heads were arrested for corruption case (313 cases), mostly for bribery. Until May 2018, there were 12 Regional Heads arrested by the Corruption Eradication Commission (Komisi Pemberantasan Korupsi – “KPK”) and named as defendants: Regent of Hulu Sungai Tengah (HST), Abdul Latif; Regent of Kebumen, Mohammad Yahya Fuad; Regent of Jombang, Nyono Suharli Wihandoko; Regent of Ngada, Marianus Sae; Regent of East Halmahera, Rudi Erawan; Regent of Subang, Imas Aryumningsih; Regent of Central Lampung, Mustafa; Regent of West Bandung, Abu Bakar; Mayor of Kendari, Adriatma Dwi Putra; Mayor of Malang, Mochammad Anton; Governor of Jambi, Zumi Zola; and Mayor of Mojokerto, Mas’ud Yunus.

Failure to Generate Deterrent Effect
Massive actions are taken against corruption cases, especially by KPK. Unfortunately, until now, even the arrests made and punishments given by law enforcement do not generate deterrent effect, and corruption continues to be practiced widely.

According to Lalola Easter, Member of the Legal and Justice Monitoring Division of Indonesian Corruption Watch (ICW), counter-corruption actions continue to fail to generate deterrent effect, because of light sentences for proven crimes (an average of 2.2 months’ imprisonment). Another effort that may be made as deterrent is impoverishment. Impoverishment may be performed in one of 2 ways: first, an increase of the monies that must be returned. This only applies for corruption cases that cause losses to the State. Second, by making use of the Money Laundering Crime Law (Undang-Undang Tindak Pidana Pencucian Uang – “TPPU”).

According to ICW findings in 2017, only 4 cases are prosecuted as money laundering activity, even though there are 1249 cases and 1381 defendants on process. “And the judge didn’t even allow it, so we merely prosecuted it. We feel that the law enforcers were not serious during prosecution. Furthermore, the courts have not made judgments that may generate deterrent effect for defendants,” Lalola said.

Lalola also notes that there are complaints on the repressiveness of prisons, and the ineffectiveness of its ability to deter crime. Unfortunately, the concept of impoverishment is also unoptimized. “We are also still unsure what direction to take in corruption-related law enforcement. Our studies show no effect of deterrent, whether imprisonment or impoverishment,” he said.

Mudzakir, Criminal Law Expert from Indonesia’s Islamic University of Jogjakarta, considers that the current corruption crime policies are inappropriate, because nearly all law enforcement organs place law enforcement as part of corruption eradication, while corruption is the excesses of the State administration system, which includes the State’s financial management. “As the efforts to establish good governance fail, corrupt behavior occurs. If this is how law enforcement works to prevent corruption crimes, I’m sure that it’s not going to end even until Judgment Day, because it’s the excesses that they deal with, not the main issue,” he said.

As corruption is an excess, legal regulations, in this case, State financial management, must be improved. “For example, people competing to become Regional Heads, must spend a lot of money. This means that there is a great potential for corruption to occur. If State administration frees them from these expenses meaning that the State funds the campaign, nobody will have to spend anything. So in the future, these people won’t need to engage in “side-business” in order to get money to repay their campaign debts,” Mudzakir said.

Dadang Trisasongko, Secretary General of Transparency International Indonesia, explained to us that the perceived corruption in Indonesia in relation with the Corruption Perception Index is “37” point, which means out of the possible 100 points of perceived corruption, Indonesia is perceived as  corrupt. “This is very bad, part of the lower ranks. We see that the trend for the past 10 years is that Indonesia’s corruption perception does improve, but very slowly,” he said.

There are two important factors why Indonesia’s Corruption Perception Index is very slow-moving. First, the extent of corruption within our law enforcement is serious. Officials tend to neglect the process of various crimes and may even sell judgments. Second, many relations between politicians and businessmen are corrupt. The corrupt relations are confirmed during the various investigations and arrests made by KPK: frequently, the perpetrators are both politicians and businessmen. “So no matter how many arrests that we make, but if we don’t deal with the opportunity of corruption arising from these relations between businessmen and politicians, corruption is going to continue. Corruption is an industry, it keeps being produced,” Dadang said.

The sad thing is, Dadang said, many public officials, whether Regional Heads, politicians in the parliament, or ministry officials misuse the trust invested in them by the public. “If we don’t mitigate political corruption as quickly as we can, the longer corruption becomes a legal thing, because they manipulate various public policy creation processes: zoning, business permits, development planning, and even public administration, as we see from the e-ID case. Corruption has become more sophisticated. This is what makes our Corruption Perception Index stand still. We know how hard KPK works, but this keeps on because the industry goes on,” he said.

Capital Punishment for Corruptors
As the common people, we are frequently dissatisfied with the sentences meted out to corruptors. Our laws set the imprisonment sentence for corruptors at 1-20 years. In certain cases, such as the case against the former Chairman of the Constitution Court (Mahkamah Konstitusi – “MK”), Akil Mochtar, they are sentenced to life imprisonment. However, there is no deterrent effect seen. Can these corruptors be given a death sentence?

Our laws turned out to have regulations concerning capital punishment for corruptors in the Corruption Crime Law (Undang-undang Tindak Pidana Korupsi – “UU Tipikor”). However, this sentence is only applicable to “extraordinary” circumstances. Capital punishment is regulated in Article 2 Paragraph 2 of Law No. 31 year 1999 concerning Corruption Crime, which states that “In case that the corruption crime as meant in Paragraph 1 is perpetrated in certain circumstances, the capital punishment can be given.”

What is meant by “certain circumstances” as meant in the Explanatory Chapter of this Law? “What is meant by “certain circumstances” in this regulation is meant that the crime of corruption is considered to bear a heavier weight to the perpetrator if the crime is committed when the State is facing an emergency according to applicable rules and regulations, during a national natural disaster, frequent repetition of the offence, or when the country is facing an economic and monetary crisis.”

Other than its failure to generate deterrent effect, Lalola found something else to disapprove with this Law. “Our justice system is still very much corrupt. There is still a large possibility of corrupt practices in the court. Let us recall that we even have public attorneys and judges who are caught red-handed. This means that court mafia are thriving. This affects the level of credibility, whether for the prosecution or the judgment. In such a condition, when people are sentenced to death, such sentence is possibly not value-free. Its deterrent effect is also questionable. We personally think that the capital punishment will not have much impact, because there is a large potential of errors to be made. Even the advanced Scandinavian countries have done away with capital punishment since the 70’s – they prefer to fix up their system instead. They reform both their bureaucratic and justice system. They do not use repressive approach like the capital punishment. We think that this kind of change is more measurable, because we fear that capital punishment may not influence anything. We believe that what works for them is impoverishment,” he said firmly.

“We see that the defendants in corruption cases are imprisoned without undergoing impoverishment, once they are released they don’t start over from zero. They are still rich, they can still get profits from their many businesses, they still have a large number of assets unseized, so they will be fine,” Lalola said. Impoverishment is necessary, because according to ICW data, the normal way of corruption processing is more profitable and beneficial for corruptors. As proof, in 2017 the State’s losses due to corruption is estimated to be Rp 29 trillion. However, the entire total of returns of the State’s money, even with additional fines, is only Rp 1.4 trillion.

Similar with Lalola, Mudzakir also disapproves of capital punishment even though it is regulated by law. He believes that the implementation of this law would have a higher potential for injustice. “The law is not good, because it is tied to the amount corrupted. So how much the State lost the funds for natural disaster rehabilitation, then capital punishment might be meted out. What we fear is, somebody might be sentenced to death just over a matter of Rp 100 thousand or Rp 100 million, while people who embezzled Rp 15 trillion walk away with a light sentence, because it is not related to social funds. This is why the legal system must be fair,” he said.

Legal Reforms
In the Reform Era, KPK is a beacon of hope in corruption eradication. Lalola said that with the presence of KPK, public officials that hitherto are untouched by the law, such as ministers or chairmen of political parties, are now punishable. “In this context, I find that there is good progress and improvement. On the other hand, how come the corruption cases remain unsolved? I think it is the tip-of-the-iceberg phenomenon. Therefore, handling must be done not just by law enforcers, but we must also anticipate them, prevent them by improving our governance,” Lalola said.

Dadang admits that the presence of KPK as a direct descendant of reforms provide hope for corruption eradication. “Imagine not having KPK – the law will be in the clutches of those moneyed criminals. KPK is now a lonely actor challenging a corrupt system. It is a new and independent agency born in the middle of political turbulence. Therefore, whoever the president is, whoever sits in the parliament, must guard it properly,” he said.

On the other hand, Mudzakir sees that corruption practices have worsened, as corruption eradication has shifted from the principle of law enforcement into a means for political instrument using law enforcement. “And that’s why nowadays the suspects are named first, and evidence is sought after,” he said. Mudzakir further said that law reforms must start by reforming judges, then public attorneys, then investigators. “Reforming a single good judge is equal to protecting several million citizens. A single bad judge would provide opportunity for more corrupt and unprofessional law enforcers. Reforms must start from the cleanliness of judges themselves, because they enforce the law and justice. So no matter who the president is or will be, we must start with legal revolution,” he said.

Anticipative Steps
As corruption in Indonesia remains massive, special steps need to be taken to reduce corruption in Indonesia. Dadang suggest that good governance must start from political party level, including how the party gets their money. Therefore, the Government’s increasing subsidies to political parties is a means to wrest control and dependence of parties from businessmen. “I think if our parties are not reformed, we will continue to generate corrupt politicians. The leader of the State should have been selected from these parties. However, we fail to consider integrity as a benchmark for selecting the leader of this country. Because we use money as our filter, the politicians that enter the scene get power because of money as well,” he said.

Meanwhile, Lalola expects that law enforcers be consistent when implementing punishment, specifically by causing deterrent through impoverishment. “All corruption cases must be followed with TPPU. This is plain logics: it’s impossible for a person who has received much money to keep it like that. He’d buy gold, houses, land. These changes are considered as money laundering already,” he said.

Mudzakir states that politicians become corrupt because political expenditures are astronomical. Therefore, we should concentrate on improving the State’s administration and finance management. “We need to close up all opportunities for corruption,” he said. (Dessy Aipipidely)