CORRUPTION AND HUMAN RIGHTS VIOLATIONS

CORRUPTION AND HUMAN RIGHTS VIOLATIONS[1]

Oktovianus Lawalatta

A.      Introduction

The phenomenon of corruption has existed since humans began organizing their lives. The intensity of corruption varies across time and place; like other social problems, corruption is largely determined by various external factors. Early accounts of corruption focused on bribery of judges and the behavior of government officials, which were initially considered corrupt acts.[2]

As societies and state organizations develop, corruption also evolves from one phase of life to another. Corruption is found in nearly every country, albeit at varying levels. Some say that a government will collapse if corruption is not eradicated. Corruption is not limited to democracies; it also exists in military dictatorships. It occurs at every stage of development in all economic systems, from open capitalist countries like the United States to centrally planned economies like the former Soviet Union.[3]

Therefore, corruption exists not only in developed countries but also in developing and poor countries. In developing and poor countries, corruption hinders economic growth and undermines political legitimacy, further exacerbating poverty and the lives of people. It can also undermine support for democracy and a market economy.

In Indonesia, corruption has become a thorn in the government system and is a reflection of the country's corrupt governance. This phenomenon has resulted in poverty, low levels of education and health, and poor public services. The consequences of corruption are always felt by the people, especially those living below the poverty line. In several regions, we can read and see, through news reports in print and electronic media, floods, landslides, destroyed infrastructure, disrupted transportation, hampered distribution of goods, and deteriorating public health. All of these are the effects of corruption, the impact of which is inevitably felt by the innocent common people.

Then, the change in the government system from centralization to regional autonomy created new problems, as corruption shifted from the center to the regions. With various modus operandi, corruption, packaged in various ways, sometimes in the name of development policies, has given rise to new problems in several regions. Corruption is rife in provinces, regencies, and cities across Indonesia. For example, in Maluku Province, there are numerous corruption cases, and several mayors and regents have been implicated in corruption cases.

Discussions on the relationship between corruption and human rights (HAM) appear to be relatively rare among academics and practitioners, and there is not much literature or textbooks on the subject. This is likely because the substance of corruption, or the crime of corruption, does not explicitly address the substantive relationship between corruption and human rights. Yet, the correlation between the two is clear, as almost all corruption cases are directly or indirectly followed by human rights violations. Corruption always begins with the abuse of power, meaning that the perpetrators of corruption are usually those in power. In other words, deviant acts committed by bureaucratic officials, in the form of corruption, can cause misery for the common people in a country. This means that corruption has robbed people of their economic, social, and cultural rights, thus violating human rights.

Based on the explanation above, the question arises whether acts of corruption can be said to be a form of violation of human rights, especially regarding economic, social and cultural rights?

 

B.       Discussion

1.      Corruption

The word corruption etymologically comes from Latin "corruption"corruption" means "bribery", or "corrumpere” meaning "to corrupt." This occurs when officials of state agencies abuse their positions, allowing for bribery, forgery, and various other irregularities.[4]. From Latin it developed into other languages, such as English using the term "corruption","Corrupt”, the French use the term “corruption", the Dutch use the term "corrupt". In the Fockema Andreae Dictionary of Law the word corruption especially used for civil servants who receive bribes, namely accepting gifts and so on, while they know that the gifts are intended to do things that are contrary to their official duties. [5]

The word corruption was first used by Poerwadarminta in the Indonesian Dictionary, which is a translation of the Dutch word "corruption".corrupt". Then, Corruption in the Big Indonesian Dictionary is defined as "misappropriation or embezzlement (of state or company money for personal or other people's benefit.[6]

Minister Oemar Seno Adji[7], that the literal meaning of the word "corruption" is "rottenness, depravity, dishonesty, bribery, immorality, deviation from holiness, insulting or slanderous words or utterances. So, the essence of corruption is the abuse of public trust for personal gain."

Another formulation of the meaning of corruption was put forward by Brooks, [8] is "intentionally committing a mistake or neglecting a duty known as an obligation or without the right to use power, with the aim of obtaining more or less personal gain".

Pitlo, et al.[9] Quoting Schroder's opinion, he stated that it must first be understood that there is no universally binding definition of corruption, and that corruption is defined differently by different societies. Pitlo et al. then attempted to define corruption based on scientific concepts, including:

a. In political science, the general definition of "corruption" is the abuse of office and administration, economics or politics, whether caused by oneself or others, carried out to obtain personal gain, thus causing losses to the general public, companies or other individuals.

b. Economics, economists provide a concrete definition of corruption as follows: "for the parties involved, corruption is a profitable exchange (between achievements and counter-achievements with material or non-material rewards) that occurs secretly and voluntarily, which violates applicable norms, and at least constitutes abuse of office or authority held by one of the parties involved in the public or private sector."

 

2.      Human Rights (HAM)

In various literature on Human Rights, Human Rights are known by various terms, including: Human Rights, Human Rights, Basic Rights, or Fundamental Rights. Of these various terms, it seems that "Human Rights and Human Rights" are more popular than other terms, as a translation of the term "human rights” (English) or “human rights” (Dutch) and “droit de I'homme” (French). However, some parties refuse to use the term “Human Rights” and prefer other terms such as “fundamental rights” or “fundamental rights.”[10]

In modern history, human rights rapidly became a topic of discussion at the international level after the end of World War II (WWII) in the mid-20th century. Since then, human rights have become a topic of extraordinary discussion and global attention, both in terms of concept and the number of regulatory instruments (laws) that regulate them. Human rights began to be known by the term "fundamental human rights" (translated as “basic human rights”) which is now known as “Human Rights” (human rights). These rights have actually existed since the 18th century and are known as "human rights".The Right of Man” (human rights). At the end of the 20th century, almost all over the world, the issue of human rights was raised as an important topic to discuss, especially in countries that uphold democracy. Human rights are considered a modern political ethical concept with the core idea being "the existence of a potentially very strong moral demand to protect weak people and groups from the arbitrary practices of the powerful," whether in terms of position, age, status, gender, and so on.

Literally, human rights are basic or fundamental rights. The word "rights" is closely correlated with "obligations," because people have rights and also have obligations. This means that when we discuss rights, we cannot separate ourselves from discussing obligations, as they are part of human nature, dignity, or status. Sometimes people shout to get attention for the fulfillment of their rights, but they forget that they are violating the rights of others, which are also their obligations (for example, protesters who use part of a highway, thereby blocking the right of others to use that road).

The definition of human rights from several instruments, both international and national, can be stated as follows:

It has been stated above that after World War II, human rights began to receive attention from all countries, so that a declaration was born which was agreed upon by all member countries of the United Nations (UN), so that in the UN Session in 1948 a declaration was declared which was called "Universal Declaration of Human Rights" (The Universal Declaration of Human Rights, abbreviated as UDHR). If you read Articles 1, 2, and 3, you can find the formulation of what human rights are, namely:

Article 1: "All people are born free and have the same dignity and rights. They are endowed with reason and conscience, and should associate with each other in a spirit of brotherhood."

Article 2: "Everyone is entitled to all the rights and freedoms set forth in this declaration without distinction of race, color, sex, language, religion or political opinion."

Article 3: "Everyone has the right to life, liberty and security as an individual".

The above regulations, when declared, had received approval and were accepted by 175 countries that are members of the UN, even though in each country's legal instrument they would formulate it according to the language formulation and conditions of their respective countries.

The Universal Declaration of Human Rights (UDHR) which was declared in 1984 does not have legally binding force, because it is only a declare or "statement". Therefore, in 1951 the UN General Assembly requested the UN Commission on Human Rights to prepare an instrument that has binding power, as a supporter of the UDHR, and on December 16, 1966, 2 (two) Draft Covenants with Resolution 2200A (XXI) the UN General Assembly ratified 2 (covenants) which came into force in 1976 (because it took 10 years for socialization to all UN member states), namely: International Covenant on Civil and Political Rights (International Covenant on Civil and Political Rights). This Covenant has been ratified by the Government of Indonesia through Law Number 12 of 2005, State Gazette of the Republic of Indonesia Year 2005 Number 119, Supplement to the State Gazette of the Republic of Indonesia Number 4558 and International Covenant on Economic, Social and Cultural Rights (International Covenant on Economic, Social and Cultural Rights) has been ratified by Law Number 11 of 2005, State Gazette of the Republic of Indonesia 2005 Number 117, Supplement to the State Gazette of the Republic of Indonesia Number 4557.[11]

In Indonesia, in the Human Rights Charter, which is an inseparable part of the Decree of the People's Consultative Assembly of the Republic of Indonesia Number XVII/MPR/1998 concerning Human Rights, it is formulated that human rights are: 

"basic rights inherent in human beings by nature, universally and eternally as a gift from God Almighty, including the right to life, the right to family, the right to self-development, the right to justice, the right to freedom, the right to communicate, the right to security and welfare, which therefore may not be ignored or taken away by anyone."

                 

In Law Number 39 of 1999 concerning Human Rights, in Chapter I Article 1 Number 1, it is formulated that Human Rights are "a set of rights inherent in the essence of human existence as a creature of God Almighty and is His gift that must be respected, upheld and protected by the State, Law and Government, and every person for the sake of honor and protection of human dignity and honor." And the rights regulated in Law Number 39 of 1999 are:[12]

1) the right to life; 2) the right to have a family and continue the lineage, 3) the right to develop oneself, 4) the right to obtain justice, 5) the right to personal freedom, 6) the right to feel safe, 7) the right to welfare, 8) the right to participate in government, 9) Women's Rights, 10) Children's Rights.

 

How important Human Rights (HAM) are for the Indonesian Nation and State, so that HAM is included in the Constitution of the Republic of Indonesia, the 1945 Constitution of the Republic of Indonesia, regulated in Articles 28A to 28J. This regulation indicates that the government and all levels of Indonesian society highly uphold HAM. 

 

C.      Corruption as a Form of Human Rights Violation

In various surveys conducted by credible institutions, the judiciary is placed as one of the institutions with a high level of corruption. Research conducted by the NGO Kemitraan in 2010 found that the Legislative Institution was the most corrupt institution with a percentage of 78%, while the Judicial Institution with a percentage of 70%, and the Executive Institution with a percentage of 32%. Similarly, research conducted by Soegeng Suryadi Syndicate (SSS) in May 2012. The results of the SSS survey placed the House of Representatives (DPR) (from central to regional) as the most corrupt institution, namely 47% of 2192 respondents. Below the DPR, the next most corrupt institutions were the Tax Service Office (21,4%), the Police (11.3%), Political Parties (3,9%), the Prosecutor's Office (3.6%), Bureaucratic Services (3,1%), the Judicial Institution (2,6%), Bank Indonesia (1,2%) and the Constitutional Court (1%). The results of the survey were directly proportional to public dissatisfaction with cases handled by judicial institutions.[13]

Looking at the survey results above, it can be said that the crime of corruption is truly very dangerous and therefore must be handled appropriately, and with adequate legal instruments as well, Romli Atmasasmita[14] provide confirmation and reinforcement that:

 Corruption in Indonesia is already an extraordinary crime (extraordinary crimes) so that the demand for extraordinary and sophisticated legal instruments and strong institutions to address corruption is unavoidable. Hopefully, the Indonesian people agree that corruption must be prevented and eradicated from the country, because corruption has been proven to cause great suffering to the people."

 

The firmness of the idea of ​​corruption as a serious violation of human rights according to Jimly Asshiddiqie[15] is:

Balance in the application of principles doelmatigheid and application of principles legality can be found if the panel of judges can develop contextual thinking. It is further explained that the crime of corruption has become deeply rooted in all aspects of Indonesian society, so that it has exceeded the impact and danger of human rights violations, so that the crime of corruption can be equated with serious types of human rights violations (gross violation of human rights).

         

Law Number 28 of 1999 concerning the Implementation of a Clean and Free State from Corruption, Collusion and Nepotism stipulates that "the practice of Corruption, Collusion and Nepotism is not only carried out between state administrators, but also between state administrators and other parties which can damage the foundations of the life of society, the nation and the state, and endanger the existence of the State."

The discussion on Corruption and Human Rights Violations (HAM) on this occasion concerns violations of the fulfillment of Economic, Social, and Cultural Rights. This group of rights differs from Civil and Political Rights. Economic, Social, and Cultural Rights directly relate to the needs of society in general. These include: the provision of food, education, health care, housing, and employment facilities that enable every individual member of society in a region, both at the central and regional levels, to live a minimally decent life. The responsibility for fulfilling these rights is of course accompanied by a state accountability mechanism for the implementation of the fulfillment and protection of the rights contained in economic, social, and cultural rights.

The fulfillment of economic, social, and cultural rights should be carried out responsibly by the state. However, if the money that should be used to improve the people's well-being and prosperity is embezzled, it causes much suffering among the lower classes. The impact is evident in the numerous crimes that occur, such as robbery, kidnapping, mugging, and even murder, all of which can be said to stem from the need for survival. Furthermore, poverty, malnutrition, children dropping out of school, and a shortage of jobs, among other things, occur. This is because the funds provided by the national and regional budgets have been embezzled by implementers/authorities in collaboration with businessmen.

Failure to fulfill economic, social, and cultural rights results in a violation of the Covenant on Economic, Social, and Cultural Rights, and constitutes a violation of human rights. According to Allan McChesnay, violations of this Covenant are generally referred to as[16]

1. Failing to take action to protect existing rights;

2. Not taking prompt action to prevent failure to fulfill rights;

3. Failed to fulfill an obligation required by the covenant;

4. Not succeeding in achieving the fulfillment of rights at the minimum level, even though it is needed by the majority of society;

5. Limiting the fulfillment of a right recognized in the covenant in a manner not permitted by the covenant;

6. Intentionally stopping or slowing down the gradual progress in fulfilling a right;

7. Cancel or reduce programs that have helped fulfill the covenant;

8. Failure to provide reports to the UN periodicals.

Facts prove that the correlation between acts of corruption and the fulfillment of Economic, Social, and Cultural Rights, especially the Right to Work, the Right to a Sense of Security for the community, the Right to a decent standard of living, the Right to Health, the Right to Education, the Right to Housing and the Right to a Clean and Healthy Environment, the Right to develop one's culture. Significantly very influential, because when acts of corruption are carried out, it will certainly cause obstacles to the fulfillment of the rights mentioned above.

 

D.    Closing Event

Based on the discussion above, the conclusion that can be conveyed is: "Corruption in Indonesia is an extraordinary crime (extraordinary crimes). And when connected to Human Rights, especially the fulfillment of Economic, Social, and Cultural Rights, then if a Criminal Act of Corruption occurs, it can be said that a Human Rights Violation has occurred. The funding provided by the Government for the Fulfillment of these Rights has been corrupted. For this reason, extraordinary regulations are needed in the provisions of legislation that regulate the Criminal Act of Corruption which is a Human Rights Violation in the category of Serious Human Rights (gross violation of human rightsBecause corruption can cause misery for many people throughout Indonesia, in addition to regulations, strong institutions, incorruptible human resources, and support from all levels of society must be established.

 

REFERENCES

Allan McChesney, Promote and Protect Economic, Social and Cultural Rights, Insist Press, First edition, Yogyakarta, 2003.

Affandi Hernadi, Conception, Correlation, and Implementation of Human Rights and Good Governance, writing in Unraveling the Complexity of Human Rights (Multi-Perspective Study), PUSHAM-UII, Yogyakarta, 2005.

Ifdal Kasim, Implementation of Economic, Social and Cultural Rights, Normative Framework and Standards, Paper, delivered at the National Seminar Towards Effective Protection and Monitoring of Economic, Social, and Cultural Rights in Indonesia, implemented in collaboration with the Center for Human Rights Studies, Islamic University of Indonesia, Yogyakarta with Norwegian Center for Human Rights, Yogyakarta, 16 – 18 April 2007.

Jimly Asshiddiqie, Judicial Review Study of the Right to Material Review of Government Regulation Number 19 of 2000 Concerning the Joint Team for Corruption Crimes, Law and Human Rights Magazine, Second Tenth Edition, December, Tangerang, 2006.

Kemberly Ann Eliot, Corruption and the World Economy, Indonesian Torch Foundation, Jakarta, 2009

Judicial Commission of the Republic of Indonesia, Commitment to Togetherness in Building a Clean Judiciary, Jakarta, 2013

Oemar Seno Aji, Corruption and the Burden of Proof, Oemar seno Adji & Rekan, Jakarta, 2006.

Pitlo, et al., Regarding Political Theories and Political Systems to Corruption, Jakarta, 2006.

Romly Atmasasmita, Corruption, Good Governance and the Anti-Corruption Commission in Indonesia, National Legal Development Agency, Ministry of Justice and Human Rights of the Republic of Indonesia, Jakarta 2004.

SH Alatas, Corruption, Nature, Causes and Functions, LP3ES, Jakarta, 1987.

 

Legislation;

The 1945 Constitution of the Republic of Indonesia

Law Number 39 of 1999 concerning Human Rights, State Gazette of the Republic of Indonesia 1999 Number 165, Supplement to the State Gazette of the Republic of Indonesia Number 3886

Law Number 12 of 1999 concerning the Implementation of a Clean and Corruption-Free State. State Gazette

Law Number 11 of 2005 concerning Ratification International Covenant On Economic, Social, and Cultural Rights (International Covenant on Economic, Social and Cultural Rights) State Gazette of the Republic of Indonesia 2005 Number 118, Supplement to the State Gazette of the Republic of Indonesia Number 4557.

Law Number 7 of 2006 concerning Ratification United Nations Convention Against Corruption 2003 (UN Convention against Corruption 2003. 

 

 

 

 

Etc:

Encyclopedia of Indonesia, Ichtiar Baru van Hove, volume 4 Jakarta, 1993.

NE Algra et al., Fockema Andreae's Dictionary of Legal Terms, Dutch – Indonesian, translation by Saleh Adiwinata et al., First Edition, Bina Cipta, Jakarta, 1983.

Department of Education and Culture, Big Indonesian Dictionary, Fourth Edition, Balai Pustaka, Jakarta 1995