PARDONING CORRUPTION Should perpetrators returning proceeds of crime be forgiven?

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KEJAKSAAN AGUNG
DOC. KEJAKSAAN AGUNG

However, the statutory provisions are still unable to bring perpetrators of corruption to justice. In 1971, the government together with the People’s Representative Council of Mutual Assistance (DPR-GR) passed Law 3/1971 on the eradication of corruption crimes which was deemed relatively effective at that time. However, along with the rapid progress of economic development in the New Order era, types and modus operandi of corruption-related crimes became more complex. These include acts of collusion, nepotism, bribery, and gratification in the government, all of which were outside the purview of Law 3/1971. These practices were rampant in the New Order era which eventually caused a “multidimensional crisis” that sparked the Reformasi movement in 1998. Eradicating corruption, collusion and nepotism (popularly known as KKN) became one of the key agendas of the people’s movement at that time. 

Reformasi enabled Indonesia to build a democratic country based on the rule of law and free of KKN practices. On that basis, the government together with the Parliament born out of an honest and fair election issued legal instruments to eradicate corruption that we know of today. 

Indeed, corruptive behavior is not only a social and legal problem in Indonesia; it is a global phenomenon. Therefore, in the 21st century, the global community expressed concern about the scourge of corruption, especially in developing countries. The world over, corruption has many names: crime as a business; economic crimes; white collar crimes; official crimes, etc. Global legal experts agree that corruption is a form of abuse of power hence it should be treated as extraordinary crime. 

Chudry Sitompul, S.H., M.H.

The international community is well aware that it is important to have a joint effort to eradicate corruption, and to seek concrete steps to overcome it. Several international organizations took the initiative to hold meetings, such as the ones in Caracas in 1980 and in Cairo in 1995, to discuss measures to prevent and control corruption. During an international anticorruption conference in Beijing in 1995, it was agreed that corruption be classified into offences beyond the reach of the law. Experts at the meeting agreed that law enforcement officials are relatively toothless when it comes to tackling corruption as it is difficult to prove. The 9th United Nations Congress in Cairo in 1995 declared that corruption can endanger the stability and security of society, undermine democratic values and morality, and endanger social, economic and political development. 

The United Nations intensified its anticorruption efforts since 2000. The 55th United Nations General Assembly produced UN Resolution 55/61 on December 6, 2000 which call for the establishment of international anticorruption legal instruments to bridge different legal systems and at the same time promote effective eradication methods. In 2003, the UN adopted the United Nations Convention Against Corruption (UNCAC) which aims to prevent corruption globally by conducting international cooperation to eliminate corruption. Indonesia has ratified UNCAC on 18 April 2006 through Law 7/2006. 

Given how serious Indonesia is in eradicating corruption (including by becoming a member of the UNCAC in 2003), will AG Burhanuddin’s policy weaken the anticorruption spirit in Indonesia? As mentioned above, many anticorruption activists view that it is inconsistent with the Reformasi values. On the other hand, there are some academics and legal observers who support the policy based on cost-benefit analysis. 

The author can understand the AG’s reasoning. However, it should be noted that this policy should not be used as a gateway to undermine the corruption eradication efforts by changing the substance of the anticorruption legislations in the future. In addition, its implementation must be accompanied by moral high ground on the part of the prosecutors in the field. Otherwise, it will result in moral hazard. 

Furthermore, Law 11/2021 on amendments to Law 16/2004 on Attorney General’s Office of the Republic of Indonesia allows the Attorney General to issue such policy. In the explanation to Article 34(A), it is stated that to accommodate developments in the society who want minor crimes or crimes with low financial losses, the court proceedings shall be discontinued in view of the principle of law enforcement that upholds justice. This is in line with the prosecutorial discretionary doctrine and the leniency policy. 

Thus, there is a legal basis for the AG to make such policy. In practice, processing corruption cases (starting from preliminary investigation, investigation, prosecution, preliminary hearing, to execution of ruling) is costly (estimated at around Rp50 million). Of course, this will mean that the goal to eradicate corruption in order to protect and save public money will not be achieved because the cost of investigating and prosecuting corruption cases is greater than the money that is returned to state coffers. 

If we use Economic Analysis of Law (EAL), Article 34(A) of Law 11/2021 has a theoretical basis. The EAL thesis holds that many areas of law are aimed at improving efficiency. The concept of efficiency means wealth maximization. And EAL makes an important contribution to the prosperity of society. According to Pareto Criterion, the legal economist’s idea is to increase efficiency, based on several ethical premises: 

a) that the individual is the best judge of his own welfare; 

b) that the welfare of society depends on the welfare of individuals that comprise it; 

c) that any change that increases the welfare of at least one individual without diminishing the welfare of any other improves social welfare.