PARDONING CORRUPTION Should perpetrators returning proceeds of crime be forgiven?

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PARDONING CORRUPTION
Illustration: LEONARDO A. PUTONG

IO – In a hearing with the House Committee III on January 27, 2022, Attorney General (AG) ST Burhanuddin stated that he has instructed his staff to settle corruption cases worth under Rp50 million by way of recompensating state losses. According to the AG, this initiative aims to expedite, simplify and reduce the cost of legal proceedings on corruption cases. 

In addition, the AG also highlighted cases involving misuse of village funds, where the amount is deemed not “significant”. In his view, if the crime is not carried out in a continuous manner, he asked that the cases be settled administratively or through “reeducation”. According to Burhanuddin, if the perpetrators have paid back proceeds of crime, the inspectorates can reeducate the perpetrators to not reoffend. 

The AG’s statement was in response to an appeal from the House Committee III member Benny K. Harman who requested the Attorney General not to process corruption cases that incur state loss below Rp1 million. He argued that the House still receives many reports of corruption cases under Rp1 million which are still being processed, while many major corruption cases involving the “big fishes” are not processed. According to Benny, this confirms what many view as the phenomenon of “blunt upward, sharp downward”, referring to Indonesian law enforcement which tends to favor the rich and powerful while dealing swift justice to the commoners. 

DPR RI
DOC.DPR RI

While several members of the House as well as some legal observers support the AG’s policy, in the public sphere it has drawn flak from grassroots anticorruption groups. This article will discuss whether the AG’s policy is appropriate in the eyes of the law and justice. 

According to the provisions of criminal law, paying back the proceeds of crime in property crimes (such as theft, embezzlement, and fraud) must not eliminate or pardon the criminal act. In the practice of criminal justice, this will only serve as a matter for the judge to consider whether to reduce the sentence in a verdict. Conditions that qualify for this are: 

Attorney General (AG) ST Burhanuddin
Attorney General (AG) ST Burhanuddin. Photo: Priv. Doc.

a) A person who commits an act for which by reason of the defective development or sickly disorder of his mental capacities (ontoerekeningsvatbaarheid), as per Article 44(1) of the Indonesian Penal Code (KUHP). 

b) A person who commits an act to which he is compelled by force majeure (overmacht) as per Article 48 of KUHP. 

c) A person who commits an act necessitates by the defense of his own or another one’s body, chastity or property against direct or immediate threatening unlawful assault (noodweer) as per Article 49(1) of KUHP. 

d) The overstepping of the bounds of necessary defense, if it has been the immediate result of a severe emotion caused by the assault (noodweer exces) as per Article 49(2) of KUHP. 

e) A person who commits an act for the execution of statutory provision as per Article 50 of KUHP. 

f) A person who commits an act for the execution of an official order issued by the competent authority, as per Article 51(1) of KUHP. 

g) An official order issued incompetently shall not exempt the punishment, unless it was considered in good faith by the subordinate to be issued competently and its execution lied within the limit of his subordination, as per Article 51(2) of KUHP. 

This is even more the case with corruption which is designated an extraordinary crime. According to Article 4 of Law 20/2001 on amendments to Law 31/1999 on corruption eradication (“Anticorruption Law”), it is emphatically stated that the return of state losses does not eliminate the punishment for the perpetrators of the acts (Article 2 and 3). In fact, according to the Anticorruption Law, the maximum sentence is four years of imprisonment (Article 2) and minimum one year (Article 3). Why is this the case? Because as mentioned before, corruption is PARDONING CORRUPTION Should perpetrators returning proceeds of crime be forgiven? a serious, extraordinary crime so it has to be dealt with as such. It does not only harm the state finances or the economy, but also destroy the moral foundations of the nation. It is even considered a violation of human rights. 

The legal instruments to eradicate corruption in Indonesia have been regulated in KUHP Chapter VII, XXI, and XXVIII. However, these are considered ineffective because acts of corruption are often carried out in a “sophisticated” manner that is beyond the reach of the scope of KUHP or Criminal Law Procedures Code (KUHAP). This is why since 1957 the Indonesian government has begun to create regulations to prevent corruption, pioneered by then Army Chief of Staff (as military ruler) by issuing Regulation No. Prt/PM06/1957. Then the government passed Law 74/1957 regarding the state of emergency, followed by a raft of laws and regulations on corruption eradication.