GOOD GOVERNANCE AS A PREVENTIVE INSTRUMENT FOR CRIMINAL ACTS OF CORRUPTION

GOOD GOVERNANCE AS A PREVENTIVE INSTRUMENT

CRIMINAL ACT OF CORRUPTION[1]

 

SEM Nirahua

 

Introduction

The current rampant practice of corruption with various modus operandi has caused the Government to attempt to prevent and eradicate it by issuing Law Number 31 of 1999 concerning the Eradication of Criminal Acts of Corruption as amended by Law Number 20 of 2001. Then the Government established the Corruption Crime Court as a special court whose criminal proceedings are also carried out by a special institution in the form of the Corruption Eradication Commission (KPK) to examine, try and decide on criminal acts of corruption.

The crime of corruption in Law Number 31 of 1999 has a core crime (bestandeel delict) in the form of unlawful acts (Article 2) and abuse of authority (Article 3). Regarding the core crime of abuse of authority, this remains debatable because the element of abuse of authority cannot be tested within the realm of criminal law. Of course, the parameters for testing abuse of authority must be based on administrative law.

Abuse of authority resulting in corruption is essentially an act of maladministration committed by individuals with specific intentions that contradict the principles of good governance. Therefore, this article focuses on preventive measures against corruption caused by abuse of authority. These preventive measures must be implemented using the principles of good governance.

 

Maladministration Act

The term maladministration (maladministration) in the Black Law Dictionary is defined as "poor management and regulation". Philipus M. Hadjon and Tatiek Sri Djatmiati give a more explicit meaning"The concept of maladministration is related to administrative behavior. Maladministration as derived from Latin mal – malum meaning shower or devil and administration – management meaning Service. In that sense, maladministration stands for bad service. By Sunaryati Hartono, "maladministration" is generally defined as unreasonable behavior (including delays in providing services), impolite and indifferent to problems that befall someone caused by acts of abuse of power, including arbitrary use of power or power used for unreasonable, unfair, intimidating or discriminatory actions, and is not based in whole or in part on provisions of law or unreasonable facts, or based on actions unreasonable, unjust, oppressive and discriminatory.

Based on the above, maladministration refers to actions or behavior by government administrators in public services that deviate from or contradict applicable legal norms. These deviant actions, which contradict applicable legal norms, can be categorized as abuse of authority.

Maladministration occurs because the actions of government officials are contrary to applicable legal norms which are based on the principle of legality (legaliteit beginsel). According to Sunaryati Hartono, maladministration actions or behavior are not merely deviations from the procedures or methods of carrying out the duties of government officials or apparatus, but can also constitute acts that violate government law (onrechtmatige overheidsdaad), detournement de pouvoir or detournement de procedure. The National Ombudsman Commission provides indicators of forms of maladministration, including: carrying out odd actions (inappropriate), deviate (deviate), arbitrary (arbitrary), violate the provisions (irregular/illegitimate), abuse of authority (abuse of power) or unnecessary delays (undue delay) and violation of propriety (equity).

According to Anton Sujata, several types of maladministration include:

1. forgery / conspiracy forgery (conspiracy);

2. intervention (intervention);

3. prolonged handling / not handling (undue delay);

4. incompetence (incompetence);

5. abuse of authority / excessive (abuse of power);

6. clearly taking sides (impartiality);

7. receive rewards (money, gifts, facilities, KKN practices / bribblety / corruption, collusion, nepotism practices);

8. embezzlement of evidence / unauthorized possession (illegal possession and ownership);

9. act inappropriately (misleading practices);

10. neglecting obligations (unfulfill obligation);

11. others (others)

More broadly, Sunaryati Hartono formulated 20 substance problems that are within the Ombudsman's competence, including:

1. prolonged delay;

2. not handling;

3. conspiracy;

4. forgery;

5. beyond competence;

6. incompetent (incapable or incompetent);

7. abuse of authority;

8. act arbitrarily;

9. request for monetary reward / corruption;

10. collusion and nepotism;

11. procedural deviations;

12. neglecting obligations;

13. act inappropriately/inappropriately;

14. embezzlement of evidence;

15. unauthorized possession;

16. act unfairly;

17. intervention;

18. clearly biased;

19. violation of law;

20. unlawful acts (contrary to applicable provisions and propriety).

Maladministration is closely related to the attitudes and behavior of government officials. Actions that lead to abuse of authority and lead to corruption are more accurately considered maladministration. Abuse of authority, as an act of maladministration, carries the consequence of personal responsibility for the government officials who commit the act. Therefore, judges in criminal trials cannot examine abuse of authority, which constitutes maladministration and leads to corruption. Efforts to prevent maladministration are, of course, carried out by applying the principles of good governance in government administration.

 

Preventive Instruments Through Good Governance

The emergence of the concept Good governance It began with the interest of donor institutions such as the UN, World Bank, ADB, and IMF in providing capital loans to developing countries. In subsequent developments, good governance is set as a condition for countries that need loan funds, so that good governance used as a determining standard for achieving sustainable and equitable development.

Concept good governance emerged as a paradigm that cannot be separated from the concept of governance, which historically was first adopted by practitioners in international development institutions, which carries connotations of effective performance related to public management and corruption.

Term governance  by the World Bank defined as "the manner in which power is exercised in the management of a country's social and economic resources for development". The United Nations Development Program (UNDP) mentions the characteristics of good governance, namely involving all, transparent and accountable, effective and fair, ensuring the supremacy of law, ensuring that political, social and economic priorities are based on community consensus, and paying attention to the interests of the poorest and weakest in the decision-making process regarding the allocation of development resources.

Characteristic good governance according to UNDP as quoted by the State Administration Institute (LAN), which includes: 1) Participation (Participation Challenge); 2) Law enforcement (rule of law); 3) Transparency (transparency); 4) Responsiveness (responsiveness); 5) Consensus orientation; 6) Justice (equity); 7) Effectiveness and efficiency; 8) Accountability (accountability); 9) Strategic vision (strategic vision).

The emergence of a paradigm good governance in Indonesia, the background is the increasing demand for the quality of democracy and human rights and the increasingly ineffectiveness of government, so that society no longer tolerates any form of deviation from public trust (abuse of public trust) and increasingly demands responsibility and transparency from public officials. In relation to this reality, the Government issued Law Number 28 of 1999, which stipulates that the principles of clean governance include:

1. The principle of legal certainty

2. Principles of orderly state administration

3. Principle of public interest

4. The principle of openness

5. The principle of proportionality

6. Principle of professionalism

7. Principle of accountability

Talking about good governance as a preventive instrument against acts of corruption, the concept good governance can be used as an indicator to test whether an action by a government apparatus can be categorized as a criminal act of corruption. Of course, the administration of government is based on good governance, then every apparatus will carry out government functions well.

In administrative law, good governance are the general principles of good governance. This was put forward by GH Addink, that interpreting the principles good governance same as the principle good administration (principle of Good Governance same as principle of Good Administration) and formulated in detail into eight principles which include positive and negative characters, including:

1. The principle of prohibiting arbitrary action;

2. The principle of justice or fairness;

3. The principle of legal certainty;

4. The principle of trust;

5. Principle of equality;

6. The principle of proportionality or the principle of balance;

7. The principle of caution; and

8. Principle of consideration.

If the eight principles above are used as the legal basis for behavioral norms for government administration by government officials, these principles will become preventive norms to prevent acts of corruption that lead to criminal acts of corruption. Abuse of authority is an act of maladministration caused by actions not based on the purpose of granting the authority. With these eight principles, good governance above, government apparatus will carry out government duties and functions while always paying attention to the principles referred to.

It is recognized that applying these principles is not an easy or quick process. Therefore, good, integrated coordination, professionalism, and a commitment to the scope of work are required, along with high ethical and moral standards. This will ensure aspirational and professional governance, preventing actions that could lead to corruption.   

 

Closing Event

Corruption crimes based on abuse of authority essentially fall within the realm of administrative law as maladministration. As a preventative measure to prevent corruption in the form of abuse of authority, the principle of good governance which in administrative law is known as the principle good administration or General Principles of Good Government.

 

 

 

Reading List

Bryan A. Garner, Black's Law Dictionary, Seventh Edition, West Group, St. Paul, MINN, 1999.

Philipus M. Hadjon, Basic Concepts of Administrative Law, paper delivered at a lecture on March 29, 2004 at the Office of the Minister of Administrative and Bureaucratic Reform.

Philipus M. Hadjon and Tatiek Sri Djatmiati, Maladministration as a Basis for Assessing Administrative Behavior (Maladministration as the Criteria for Review of Administrative Behavior), delivered at the Seminar on Non-Judicial Enforcement of Human Rights and Good Governance: The Ombudsman – And The Human Rights Commissions in a Comparative Perspective, Collaboration between Airlangga University – Utrecht University, Surabaya, 15-17 April 2004.

Sunaryati Hartono, Investigation Guide for the Indonesian Ombudsman, National Ombudsman Commission, Jakarta, 2003.

Anton Sujata, et.al., The Indonesian Ombudsman Past, Present, and Future, National Ombudsman Commission, Jakarta, 2002.

Hafifah Sj. Sumarto, Innovation, Participation and Good Governance, Yayasan Obor Indonesia, Jakarta, 2003.

Joko Widodo, Good Governance: A Study of Dimensions: Accountability and Bureaucratic Control in the Era of Decentralization and Regional Autonomy, Insan Cendekia, Surabaya, 2001.

Galang Asmara, The Position and Function of the Ombudsman Institution Reviewed from the Government System and Legal Protection System for the People in Indonesia, Postgraduate Program, Airlangga University, Surabaya, Dissertation, 2003.