The Existence of the Death Penalty Threat in the Corruption Eradication Law

The Existence of the Death Penalty Threat in the Corruption Eradication Law

Elsa RM Toule[1]

A. Introduction

The 2005-2025 National Long-Term Development Plan (Plan 2005-2025) stipulates that the nation's ability to be highly competitive is key to achieving progress and prosperity. High competitiveness will prepare Indonesia to face the challenges of globalization and capitalize on existing opportunities.[2] To strengthen the nation's competitiveness, long-term national development is directed, among other things, at reforming the legal and state apparatus sectors. Legal development is also directed at eliminating the possibility of criminal acts of corruption and being able to handle and resolve problems related to collusion, corruption, and nepotism (KKN) thoroughly. Legal development is implemented through legal material reforms while still paying attention to the diversity of the prevailing legal order and the influence of globalization as an effort to increase legal certainty and protection, law enforcement and human rights (HAM), legal awareness, and legal services that are based on justice and truth, order and welfare in the context of an increasingly orderly, regular, smooth, and globally competitive state administration.

            Such formulation indicates that corruption is a national problem whose overcoming process is continuously being attempted, and one of the efforts undertaken is through legal material reform, in this case statutory regulations. This is important considering the impact of criminal acts of corruption that damage the joints of national life in various aspects, and the overcoming process has been carried out based on several laws and regulations regarding Criminal Acts of Corruption, including Law 31 of 1999 concerning the Eradication of Criminal Acts of Corruption as amended by Number  20 of 2001. In the General Explanation of this law it is stated that in order to achieve a more effective goal of preventing and eradicating criminal acts of corruption, this law contains criminal provisions that are different from previous laws, including the threat of the death penalty which is an aggravation of the sentence.

            The formulation of the death penalty in Indonesian legislation has always been a controversial issue, drawing both pros and cons from various segments of society. Despite this, the death penalty in the Corruption Law appears to be meaningless because its implementation is largely ignored by law enforcement.

B. Development of Corruption Crimes in Indonesia

            Corruption has become so widespread that it has systematically penetrated all sectors at various central and regional levels, and in all state institutions, including the executive, legislative, and judicial branches. Therefore, corruption is classified as an extraordinary crime (extraordinary crimeIn Indonesia, corruption cases are visibly public consumption, accessible through various media outlets, both print and electronic. Almost no day goes by without news of a corruption case.  

This is explicitly acknowledged in the General Explanation of Law Number 20 of 2001, which states that corruption in Indonesia is systematic and widespread, resulting not only in financial losses to the state but also in widespread violations of the social and economic rights of the community. This situation is the basis for the government's various efforts to eradicate corruption.

Transparency International revealed that the Corruption Perceptions Index (Corruption Perception Index/ CPI) in 2010 was 2,8, ranking 110th out of 178 countries. In 2011, it reached 3,0, ranking 100th out of 183 countries. Meanwhile, in 2012, Indonesia's CPI reached 3,2, but dropped to 118th out of 182 countries.[3] Corruption occurs in various sectors, including tax revenue, non-tax revenue, goods and services spending, social assistance, the state budget (APBN/APBD), general allocation funds (DAU/DAK) and deconcentration. Several prominent cases (celebrity case) which have received a lot of public attention, and require the efforts and hard work of law enforcement officers to uncover them, include cases of tax corruption, the Hambalang project, driving license simulators, and beef imports, which involve tax officials, members of the DPR, police officials, high-ranking political party officials, and even ministers.

            The Corruption Eradication Commission (KPK) revealed that corruption has had extraordinary consequences in various aspects of people's lives, such as high poverty rates, unemployment, increasing foreign debt, and environmental damage. The estimated poverty rate in Indonesia according to BPS, March 2012 was 29.13 million people or 11,96%; the number of unemployed was 7,6 million people; Foreign debt based on data from the Ministry of Finance in 2012 was 1.937 trillion. Loans amounted to 615 trillion, and debt securities amounted to 1.322 trillion. Meanwhile, forest damage covered an area of ​​3.8 million hectares, namely those cleared and exploited illegally. This condition automatically places corruption as an extraordinary crime (extraordinary crime) which must be addressed with extra means.

C. The Existence of the Death Penalty Threat in the Corruption Eradication Law

In an effort to address corruption as an extraordinary crime, lawmakers have formulated several important provisions, which they believe can be used as tools to ensnare and deter perpetrators, namely the principle of reverse burden of proof and severe sanctions, including the death penalty. The policy of formulating articles related to these two matters is certainly based on thought and motivated by the desire to eradicate corruption. However, this formulation policy is not followed by an application policy. Just as the principle of reverse burden of proof is reluctant to be applied in corruption trials, corruption judges are also reluctant to impose the death penalty on perpetrators, even though the state has clearly suffered losses of billions, even trillions of rupiah, and many members of society have lost the opportunity to enjoy prosperity as a result of these crimes.

According to the Chairman of the Judicial Commission, Busyro Muqodas, there are 3 main criteria that make a perpetrator of corruption worthy of being sentenced to death;

1.    The value of state funds that were embezzled was more than IDR 100 billion and has massively harmed the people;

2.    The perpetrators of the criminal act of corruption are state officials;

3.    The perpetrators of corruption have repeatedly committed corruption.

One of the reasons why the death penalty threat is not applied to corruptors is because the formulation of the death penalty threat is accompanied by the condition that it must be in "certain circumstances" (Article 2 paragraph (2). In the explanation of this Article, it is formulated that what is meant by "certain circumstances" in this provision is intended as an aggravation for perpetrators of corruption if the crime is committed when the country is in a state of danger in accordance with applicable laws, when a national natural disaster occurs, as a repetition of the crime of corruption, or when the country is in a state of economic and monetary crisis.

The above provisions received a response from Artidjo Alkostar, who stated that the provisions on corruption carried out when the country is in a state of danger, a national natural disaster occurs, a repeat of the crime of corruption, or the country is in a state of economic and monetary crisis, are actually contradictory to the eradication of corruption because the parameters are not clear. Such a statement will certainly be refuted if faced with the requirement for a judge to act creatively in accordance with the meaning of the provisions of Article 5 paragraph (1) of Law Number 48 of 2009 concerning Judicial Power, where judges are obliged to explore, follow and understand the legal values ​​and sense of justice that exist in society.[U1] 

Thus, the unclear parameters as stated above are not the reason why there has not been a death penalty for corruptors in Indonesia.[U2] The heaviest sentence ever imposed on a corruptor in Indonesia was a life sentence imposed on Dicky Iskandar Dinata, who was proven to have committed repeated acts of corruption against Bank Duta and Bank BNI.

D. Death Penalty for Corruptors in Ius Constituendum

Article 2 paragraph (2) of the Corruption Eradication Law, which regulates the possibility of a corruptor being sentenced to death, has never been applied in fact because the corruptor has not fulfilled certain conditions. This indicates that, regardless of the repetition of the crime, the imposition of the death penalty on a corruptor can only be carried out if the country is in an “extraordinary” situation, namely the country is in a state of danger according to the applicable law, a national natural disaster is occurring, or when the country is in a state of economic and monetary crisis. An unusual condition, the parameters of which require lengthy debate.

Based on this reality, the question that arises is whether the threat of the death penalty remains relevant for corruption crimes in the future. This is based on the discourse on the need to revise the Corruption Eradication Law, which still has weaknesses, including the lack of provisions governing sexual gratification and the provision on the reverse burden of proof, which is almost never used by law enforcement. In addition, the death penalty is still maintained in the Draft Criminal Code with a special nature and is always threatened as an alternative.[U3] .[4]

This question will not be answered simply by clearly determining the conditions that cause a corruptor to be sentenced to death, but rather by examining the importance of imposing the death penalty on corruptors from the perspective of the purpose of punishment.

From a human rights perspective, the Constitutional Court, through its decision No. 3/PUU-V/2007, essentially stated that the death penalty for serious crimes constitutes a restriction on human rights. Note: Human rights violation. Furthermore, the Indonesian Ulema Council, through its Fatwa on the Death Penalty for Certain Crimes confirms that Islam recognizes the existence of the death penalty, and the state may carry out the death penalty on perpetrators of certain criminal crimes.[5]MUI also does not explain that in law Djinayah (sharia law) defendants who are threatened with the death penalty can pay diyat (compensation money) and receive forgiveness from the victim's family, not sentenced to death[U4] .

The two statements above clearly indicate that the imposition of the death penalty is not something that must be dichotomously opposed to the right to life as a human being. non-derogable right from a human rights perspective. Nevertheless, the debate about the death penalty will continue, because constitutionally, the 1945 Constitution of the Republic of Indonesia expressly provides protection for human rights, and therefore, taking away a person's right to life, in whatever form, is a violation of that right.[U5] 

The debate on the death penalty remains valid, as internationally and regionally, countries are being led to a common understanding and agreement to abolish the death penalty. Under Resolution 2857 of 1971 and Resolution 32/61 of 1977, the United Nations has taken steps to declare the abolition of the death penalty a universal goal, albeit with limited application for certain crimes. Several regional conventions have also been agreed upon to promote the abolition of the death penalty, including the European Convention for the Protection of Human Rights and Fundamental Freedoms and the American Convention on Human Rights. In other words, legal systems worldwide are increasingly moving away from the death penalty.

 The debate about the death penalty has been around since the time of Cesare Beccaria around 1780, who once stated his opposition to the death penalty because he considered it inhumane and ineffective.[6] The debate about the effectiveness of the death penalty, particularly for corruption, continues. This debate is based on the assumption that imposing the death penalty is effective in combating crime (corruption). Two groups have comprehensively put forward their arguments: those for and against it. (abolitionist) and those who support (retentionist) death penalty.

Abolitionist groupbased his argument on several grounds. First, the death penalty is a form of punishment that degrades human dignity and violates human rights. Based on this argument, many countries have abolished the death penalty from their criminal justice systems. To date, 97 countries have abolished the death penalty. Member states of the European Union are prohibited from implementing the death penalty under Article 2. Charter of Fundamental Rights of the European Union 2000. The UN General Assembly in 2007, 2008 and 2010 adopted non-binding resolutions (non-binding resolutions) which calls for a global moratorium on the death penalty. Optional Protocol II International Covenant on Civil and Political Rights/The ICCPR ultimately requires every country to take steps to abolish the death penalty.

Abolitionists also rejected the retentionists' arguments.who believe the death penalty will have a deterrent effect, and therefore will reduce crime rates, especially corruption. There is no conclusive scientific evidence proving a negative correlation between the death penalty and corruption levels. Conversely, according to Transparency International's 2011 Corruption Perceptions Index, countries that do not implement the death penalty are ranked highest as relatively clean from corruption, namely New Zealand (ranked 1), Denmark (2), and Sweden (4).

Meanwhile, kRetentionist groups have argued in favor of the death penalty. The primary reason is that the death penalty serves as a deterrent against potential corruption by public officials. If they are aware of the death penalty, such officials will think twice before committing corruption. Facts prove that, compared to developed countries that do not implement the death penalty, Saudi Arabia, which enforces Islamic law and the death penalty, has a low crime rate. Based on data United Nations Office on Drugs and Crime In 2012, for example, the murder rate was just 1,0 per 100.000 people. Compare that to Finland's 2,2, Belgium's 1,7, and Russia's 10,2.[7]

Group Retentionists also reject the opinion of the abolitionist group which says that the death penalty (for corruptors) is against humanity. According to the retentionist group,  In fact, corruption is an extraordinary crime that violates humanity. Corruption is a crime against humanity that violates the right to life and other human rights not just of one person, but of millions of people. Indonesia is one of the retentionist countries which is de yure  nor recognize the existence of the death penalty.  [U6] Retentionist groups in Indonesia argue that the death penalty for corruptors does not violate the constitution, as stated by the Constitutional Court. Modderman, a pro-death penalty scholar, argues that for the sake of public order, the death penalty can and should be implemented, but this should only be used as a last resort and should be viewed as an emergency power that can be exercised in extraordinary circumstances.[8]

The arguments from these two groups can be used as a reference for determining the policy of using the death penalty for corruption crimes in the future. Considering the reality that Indonesia is currently in a period of emergency due to corruption, which has caused poverty and therefore damaged the right to life of millions of Indonesians, based on the sense of justice that exists in society, the death penalty still needs to be formulated in future corruption eradication laws. The death penalty can serve as a stern warning to public officials not to engage in corruption. However, the death penalty should only be imposed for the most heinous and far-reaching forms of corruption, and its formulation must be clear and firm to avoid multiple interpretations and doubt in its application. Furthermore, the death penalty must be imposed with great care.

 In the Indonesian criminal justice system, where law enforcement officers are often involved in corruption as is the case today, it is very possible for someone to become a victim of a miscarriage of justice (miscarriage of justice). Therefore, to prevent miscarriage of justice Corruption defendants must be given the right to pursue fair legal action. And if ultimately sentenced to death, they still have the opportunity to apply for clemency or have the death penalty commuted, as outlined in the draft national Criminal Code.

E. Conclusion

Combating corruption requires the will and commitment of all parties, including the executive, legislative, and judicial branches. Good anti-corruption legislation will be empty words if law enforcement officers lack the moral integrity to combat corruption.