INTRODUCTION
Corruption is one of the problems that most need
serious attention in the field of law enforcement, especially in the current
reform era. Moreover, problems related to corruption continue to pile up. As
one of the biggest problems faced by almost every country in the world,
corruption does not only cause state material losses, but also has an impact on
the social life of people who can indirectly become victims. In Indonesia
itself, corruption cases occur systematically and widely so that it not only
harms the state's finances, but also violates the social and economic rights of
the community at large (Hamzah, 2001).
The word corruption itself in Latin is called Corruptio-corruptus, in Dutch it is called corruptie, in English it is called corruption, the literal
meaning of corrupt refers to corrupt, rotten, depraved, dishonest actions that
are related to finances (Sudarto, 1996).
The definition of corruption itself has been clearly
explained in 13 Articles of the Law on the Eradication of Corruption Crimes
which are formulated into 30 forms/ types of corruption. These articles explain
in detail the actions that can be subject to criminal sanctions due to
corruption. The thirty forms/types of criminal acts of corruption can basically
be grouped as follows (Ardisasmita, 2006):
1) State financial loss
2) Bribery
3) Embezzlement in office
4) Blackmail
5) Cheating
6) Conflict of interest in procurement
7) Gratuities (gratification).
Meanwhile, the definition of corruption according to
Transparency International is an act of abusing public power and trust for
personal gain. This definition, if elaborated further, has several elements
that make up a criminal act of corruption, namely: First, there is an abuse of
power or authority. Second, this power and trust is related to financial or
material access. Third, this act can provide personal benefits (in this case including
the perpetrator himself or others). Even though this definition is still too
simple and abstract to reach more concrete actions so that it can be defined as
a corrupt act, basically the scope of corruption cannot be separated from acts
of bribery, embezzlement and gratification. Even in some countries, there are
slight differences in regulations regarding acts that are considered criminal
acts of corruption.
Bribery in French comes from the word "briberie" which means "begging" or
"vagrancy" (begging). While in Latin it is interpreted as "briba" in the word "a piece of bread given to
beggar" (a piece of bread given to a beggar). In its development
"bribe" means alms (alms), "blackmail" or
"extortion" (extortion) in relation to "gifft
received or given in order to influence corruptly" (a gift or gift
received or given with the intent to influence maliciously or corrupt) (Wiyono, 2005).
This definition of bribery connotes the existence of a
promise, lure or giving an inappropriate advantage by someone to a civil servant
or official, either directly or indirectly with the intention that the civil
servant or official does or does not act in accordance with his legal duties.
Meanwhile, embezzlement related to office crimes is a criminal act of
embezzlement committed by civil servants or state administrators by violating
their mandate or oath of office (breach of trust). This is understandable if
the notion of corruption is not only related to the problem of embezzlement but
also relates to moral depravity, improper conduct or stains (depravity,
perversion, or taint) and indicates an impairment of integrity, virtue or moral
principles (an impairment of morals). integrity, virtue or moral principle) (Muladi, n.d.).
The scope of corruption that is the author's
discussion this time is about gratification. As for what is meant by
gratification as regulated in Article 12B Paragraph (1) of the Law on the
Eradication of Corruption Crimes/ Corruption Crimes Law is "gifts in a
broad sense including the provision of money, goods, rebates (discounts),
commissions, interest-free loans, travel tickets tours, free medical treatment
and other facilities. The gratuities are received both domestically and abroad
and carried out using electronic means or without electronic means�.
When viewed from the formulation of the gratification
article, at first glance it has similarities with the bribery article which is
regulated in pairs between the bribe giver in Article 5 and Article 13 and the
bribe recipient in Article 12a or 12b and Article 11 of the Anti-Corruption
Law. However, the difference between gratification and bribery is that in
bribery there is a meeting of mind between the bribe giver and the bribe
recipient, while in gratification between the giver and the recipient there is
no meeting of mind. So gratification is also called
passive bribery. Meanwhile, according to Eddy Omar Syarif,
the term "meeting of mind" is another name for consensus or
transactional matters (KPK, 2015). Thus, the study
aims to find out the bribe and gratification acts.
METHOD
This research uses normative research methods (or
legal research), in order to find philosophical values, constructions, relevant
legal rules, legal principles, legal principles, and legal doctrines in order
to answer the problems the author wants to explore. In general, normative
research (legal research) is a process to find the rule of law, legal
principles, and legal doctrines in order to answer the legal issues faced. The
author will use 2 (two) approaches, including (Marzuki, 2017):
1)
Approach to
legislation (statute approach); The statutory regulation approach is an
approach that is carried out by examining the laws and regulations relevant to
the research theme, to explore the conformity and contradiction of norms to one
another.
2) Conceptual approach; The conceptual approach is an
approach that starts from the opinions (postulates) of legal experts that
develop from time to time, both in terms of substance and point of view, in
order to find new ideas or ideas that are relevant to the issues that the
author wants to explore.
RESULTS AND DISCUSSION
A.
Results
Gratification is based on a habit that often occurs in
social life where it has become a habit that is considered normal by the community.
But in order to create a clean and authoritative government, legislators
consider this to be something negative. This is because gratification has the
potential to cause corruption which begins with neglect of a duty or obligation
(Mas, 2014).
The word gratification according to the Dutch legal
dictionary is gratificatie, but the word
gratification is then used as the basis for the formation of legislation which
is formulated as a form of corruption. Meanwhile, gratification in English is
gratify which means giving happiness and satisfaction. Gratification in legal
terminology is any gift or gift in a broad sense including the provision of
money, goods, travel tickets, miscellaneous other facilities given because it
has something to do with the position, power, and authority of a person to do
or not to do an act. Gratification is an act that has the opportunity to cause
abuse and abuse of power because there is the lure of giving (Kaufmann, 1998).
Therefore, gratification is defined as a form of
giving to someone who has the authority with certain aims and objectives
desired by the giver. The provisions regarding gratification as referred to in
Article 12 B and Article 12 C of Law Number 31 of 1999 on the Eradication of
Corruption Crimes read as follows:
Article 12 B
(1) Every gratuity to civil servants and state officials
is considered as giving bribes if it is related to their position and which is
contrary to their obligations or duties with the following provisions:
a) The value is Rp. 10,000,000
(ten million rupiah) or more, proof that the gratification is not a bribe is
made by the recipient of the gratification;
b) The value is less than Rp.
10,000,000 (ten million rupiah), proof that the gratification is a bribe is
carried out by the Public Prosecutor.
(2) The punishment for civil servants or state
administrators as referred to in paragraph (1) is life imprisonment or
imprisonment for a minimum of 4 (four) years and a maximum of 20 (twenty)
years, and a minimum fine of Rp. 200,000,000 (two
hundred million rupiah) and a maximum of Rp.
1,000,000,000 (one billion rupiah).
Article 12 C
(1) The provisions as referred to in Article 12 B
paragraph (1) shall not apply if the recipient reports the gratuity he has
received to the Corruption Eradication Commission.
(2) The report as referred to in paragraph (1) must be
submitted by the recipient of the gratification no later than 30 (thirty)
working days from the date the gratification is received.
(3) The Corruption Eradication Commission, within a period
of no later than 30 (thirty) working days from the date of receipt of the
report, must determine whether the gratuity belongs to the recipient or belongs
to the state.
(4) Provisions regarding the procedures for submitting
reports as referred to in paragraph (2) and determining the status of
gratification as referred to in paragraph (3) are regulated in the law
concerning the Corruption Eradication Commission.�
From the explanation of the article above, it is
obtained that the elements of Gratification are (Adami, 2018):
1. Elements of the action (Legal Subject)
Civil Servant or State Administrator. Whereas what is
meant by civil servants is regulated in Article 1 point 2 of the Corruption Law
which includes:
�
Civil servants as
referred to in the employment law.
�
Civil servants as
referred to in the criminal law law.
�
People who receive
salaries or wages from state or regional finances.
�
People who receive
salaries or wages from a corporation that receives assistance from state or
regional finance.
�
People who receive
salaries or wages from other corporations that use capital and facilities from
the state or society (Hamzah, 2005).
Furthermore, an explanation regarding state
administrators has been regulated in Article 1 point 1 of Law no. 28 of 1999
concerning State Administrators that are Clean and Free from Corruption and
Nepotism, namely state administrators who carry out executive, legislative or
judicial functions, and other officials whose main functions and duties are
related to state administrators in accordance with the provisions of the
applicable laws and regulations.
2. Action Element: Receiving
The act (receiving) is an absolute element that must
be included in every formulation of a crime. If there is a criminal act in the
law without including the elements of the prohibited act, this situation is an
exception. This is like in the TPK receiving this gratification, in which the
act of receiving is not explicitly stated, therefore it must be explored, found
and determined. In this gratification article where the element of the act of
receiving TPK receiving gratification is concluded from, firstly in article 12
B paragraph (1) there is the phrase "to civil servants" which implies
that it is the civil servant who receives the gratification, secondly in
article 12 B paragraph (1) letter a regarding the evidence system which shows
that it is the "recipient" of gratification who is burdened with
criminal responsibility and can be sentenced to prison. Even though it is written,
in the context of proving the act of receiving (gratification) it must be
considered express and its form must be proven.
3. Object element: Gratification
There is no difficulty in understanding the meaning of
objects in the Articles of gratification. The explanation of Article 12 B
paragraph (1) has provided an authentic interpretation which states
"Gratification is a gift in a broad sense which includes the provision of
money, rebates, commissions, interest-free loans, travel tickets, other facilities".
From the formulation of the article, it can be seen that the definition of
gratification is very broad and open in nature. This can be seen in the phrase
�other facilities� so that the public prosecutor can fill it with other types
of grants/facilities.
4. Elements: Related to his position and contrary to his
obligations and duties
�This element in
the TPK receiving gratification is objective, in which this element contains 3
parts, namely: (1) First, the quality of the legal subject who receives the
gift must be a civil servant or state administrator. (2) Second, civil servants
or state administrators must have the authority of office at the time of
committing the act of receiving. To have office authority, they must have a
position. (3) Third, gifts received by civil servants or state officials must
be related to their position and contrary to their obligations and duties.
5. Element: Failure to report receipt of gift to KPK
within 30 days of receiving gift
The element of "not reporting the receipt of
gifts to the KPK" seen from the point of view of being able to be
convicted is an additional element so that the recipient of the gratification
can be sentenced. This element can be referred to as a condition for being able
to be prosecuted for the crime of the maker. The unlawful nature of the act has
arisen with the fulfillment of elements a, b, c, d
and can only be prosecuted and convicted after the terms of 30 working days
have passed against civil servants who receive gifts but do not report to the
KPK.
6. Gratification
in Historical and Cultural Context
If
we want to study further about the origins of gratification and its practice in
the culture of the people of the archipelago, it can be seen through one of the
oldest records belonging to a Buddhist monk I Tsing (Yi Jing or Zhang Wen Ming)
in the 7th century AD. The record tells of the trading events of the Srivijaya Kingdom era. Based on these records, around the
year 671 AD, the Srivijaya Kingdom had used gold and
silver as a medium of exchange but not yet in the form of currency but only in
the form of lumps. I Tsing then explained briefly that traders from Champa and China gave gold and silver to the guards when
they were going to meet with relatives of the Srivijaya
Kingdom who handled trade issues with the aim of facilitating communication.
Over time the giving of gold and silver became a separate habit among traders
from Champa and China when dealing with trade with
the Srivijaya Kingdom. Then in the note it is also
stated that traders from Arabia who want to enter the archipelago often give
unofficial 'money' so that they are allowed to lean in ports (Muhardiansyah &
Zulaiha, 2010).
The
note above illustrates that giving gifts to authorized officials has become a
culture that has thrived in people's habits from the time of the kingdoms in
the archipelago until Indonesia's independence. Gifts given to authorized
officials tend to have strings attached and in the long term can affect the
performance of these officials so that it affects the quality of fair service
to all levels of society.
B. Discussion
1. The
urgency of gratification as part of the element of offense in the crime of
corruption
According to Barda Nawawi Arief, when viewed from
the formulation, "gratification" is neither a type nor a
qualification for an offense. This is because the offense is not the
gratification, but the act of receiving the gratification. As formulated in
Article 12 B of the Anti-Corruption Law, it adheres to the principle of the
inverse burden of proof, namely that it is the recipient of the gratification
who is obliged to prove that a person has not committed corruption in the form
of gratification himself if the value of the gift is in the range of ten
million rupiahs or more. However, if the value of the gift is less than ten
million rupiah, then the burden of proof is on the Public Prosecutor, meaning
the usual burden of proof system in accordance with the Criminal Procedure Code
(Arief, 2003).
Although basically gratification will not become a
crime if the provisions of Article 12 C of the Anti-Corruption Law are
fulfilled, not all gratifications must be reported to the Corruption
Eradication Commission (KPK). Therefore, the KPK through the Corruption
Eradication Commission Circular Letter Number: B.143/01-13/01/2013 dated
January 21, 2013 stated that not all gratuities must be reported to the
Corruption Eradication Commission. The following are gratuities that do not
have to be reported to the Corruption Eradication Commission (KPK):
(1) Obtained from direct prizes/raffles,
discounts/rebates, vouchers, point rewards, or souvenirs that apply in general
and are not related to work;
(2) Obtained due to academic or non-academic achievements
(championships/ contests/competitions) at their own expense and not related to
official service;
(3) Obtained from profits/interests from fund placements,
investments or private share ownership which are generally applicable and not
related to official service;
(4) Obtained from compensation for non-service
professions, which are not related to the main duties and functions of civil
servants or state administrators, do not violate conflicts of interest and employee
code of ethics, and written permission from direct superiors;
(5) Obtained from a blood family relationship in a
straight line of two degrees or in a one-degree side-line lineage as long as
there is no conflict of interest with the recipient of the gratification;
(6) Obtained from marriage by marriage in a straight line
of one degree or in a line of descent to the side of one degree as long as
there is no conflict of interest with the recipient of gratification;
(7) Obtained from parties who have family relations as
referred to in letters f and g related to wedding gifts, child circumcision,
birthdays, religious/customary/ traditional activities and not from parties who
have conflicts of interest with the recipients of gratification;
(8) Obtained from other parties related to the disaster or
disaster, and not from parties who have a conflict of interest with the
recipient of the gratification;
(9) Obtained from official official
activities such as meetings, seminars, workshops, conferences, trainings, or
other similar activities that generally apply in the form of seminar kits,
certificates and plaques/souvenirs; and
(10) Obtained from official official
events in the form of dishes/servings/banquets in the form of food and drinks
that are generally accepted (Suprabowo & Alamsyah, 2019)
As part of the country that ratified the United
Nations Convention Against Corruption (UNCAC) regarding the eradication of
corruption, Indonesia has also received attention from other countries that
have ratified UNCAC. The countries include Uzbekistan and England (United
Kingdom). In 2012, the two countries evaluated the implementation of UNCAC
regarding the existence of gratification and bribery arrangements in the Law on
the Eradication of Corruption Crimes in Indonesia. Articles that regulate
gratification are considered problematic because their allocation is not clear.
They call these articles an aggravated form of bribery, and thus should be
removed from the Corruption Act (Easter et al., 2014).
Furthermore, the two countries also consider that the
application of Article 12 C as a tandem to Article 12 B is a big problem.
Article 12 C is considered to give impunity to civil servants or state
officials who receive illegal gratuities, but can be released from criminal
responsibility, because they report the gratification to the KPK. Among the
countries that have ratified UNCAC, Indonesia is the only one that has an
article justifying the acceptance of gratification. This can be considered as
an advantage, or even a weakness for Indonesia in optimizing efforts to
eradicate corruption. The application of Article 12 C in the Anti-Corruption
Law can be considered as a respect for the customs and habits that grow in the
community, or even as a gap for the recipients of gratification to justify the
acceptance.
Although in Article 12 C paragraph (3) of the
Anti-Corruption Law, the KPK has the authority to determine whether gratuities
can belong to the recipient or the state, normatively this article can
potentially overlap with Article 12 B of the Anti-Corruption Law. In addition,
there are several elements of criminal gratification which are almost similar
to bribery as can be explained in the following table:
Table 1
Criminal Gratification
|
The Crime of
Bribery in the Anti-Corruption Law
|
|
Bribery
|
Bribery
Receiver
|
|
Article 5 paragraph (1)
Sentenced to a minimum imprisonment of 1 (one) year
and a maximum of 5 (five) years and or a minimum fine of Rp.
50,000,000.00 (fifty million rupiah) and a maximum of Rp.
250,000,000.00 (two hundred fifty million rupiah) every person who:
a. give or promise something to a civil servant or
state administrator with the intention that the civil servant or state
administrator do or not do something in his position, which is contrary to
his obligations; or
b. giving something to a civil servant or state
administrator because of or in connection with something that is contrary to
his obligations, done or not done in his position.�
|
Article 5 paragraph (2)
"For civil servants or state administrators who
receive gifts or promises as referred to in paragraph (1) letter a or letter
b, shall be subject to the same punishment as referred to in paragraph
(1)."
Article 12
"Shared with life imprisonment or imprisonment
for a minimum of 4 (four) years and a maximum of 20 (twenty) years and a
minimum fine of Rp. 200,000,000.00 (two hundred
million rupiah) and a maximum of Rp. 1,000,000,000.
,00 (one billion rupiah):
a. a civil servant or state administrator who
receives a gift or promise, even though it is known or reasonably suspected
that the gift or promise was given to mobilize to do or not do something in
his position, which is contrary to his obligations;
b. a civil
servant or state administrator who receives a gift, even though it is known
or reasonably suspected that the gift is given as a result of or because he
has done or not done something in his position that is contrary to his
obligations;
|
|
Article 13
"Every person who gives a gift or promise to a
civil servant by remembering the power or authority attached to his position
or position, or by the giver of a gift or promise deemed attached to that
position or position, shall be punished with imprisonment for a maximum of 3
(three) years and or a maximum fine of Rp.
150,000,000.00 (one hundred and fifty million rupiah).�
|
Pasal 11
Sentenced to a minimum imprisonment of 1 (one) year
and a maximum of 5 (five) years and or a minimum fine of Rp.
50,000,000.00 (fifty million rupiah) and a maximum of Rp.
250,000,000.00 (two hundred fifty million rupiah) civil servant or state
administrator who accepts a gift or promise even though it is known or
reasonably suspected that the gift or promise was given because of the power
or authority related to his position, or in the mind of the person who gave
the gift or promise to be related to position."
|
Based on the explanation of the table above, it can be
concluded that the elements of the criminal act of gratification have a
material content that is not much different from the elements of the crime of
bribery. It's just that some articles in bribery carry a relatively lower
penalty with gratuities. However, based on the meeting of mind concept
described above, there are several views of experts and legal practitioners
regarding the difference between the crime of gratification and the crime of
bribery. These views include:
Djoko Sarwoko (Former Head
of Special Crimes and Supreme Court Justice of the Supreme Court of the
Republic of Indonesia): �That bribery and gratification are different. In the
case of arrests carried out by the KPK, when a suspect reports after being
arrested by the KPK while an act indicating a meeting of mind has occurred
before, it cannot be called gratification. Gratification reporting within 30
days must be emphasized in awareness and in good faith. In bribery, the
acceptance of something is related to doing or not doing something related to
his position. Meanwhile, gratification can be equated with the concept of
self-assessment, such as a tax case based on one's honesty."
Drs. Adami Chazawi
(Lecturer of Criminal Law, Faculty of Law): �In the provisions regarding
gratification, there is no malicious intent (mens
rea) of the recipient when the money or goods are received. Malicious intent is
considered to exist when the gratuity is not reported within 30 working days,
so that after this time has passed, it is considered a bribe until it can be
proven otherwise. Whereas in the provision regarding bribes, the recipient has
a malicious intent when the money or goods are received.�
Based on what is described in the KPK gratification
module, gratification can be analogized as an 'embryo' of bribery. thus bribery
is the 'foetus' of corruption. This means that gratification is more preventive
in nature to prevent it from causing corruption in the form of bribes. If
gratification cannot be prevented properly, then the crime of bribery will
spread like a 'chronic disease' that undermines people's lives and has an
impact on the potential for greater state financial losses.
If it is briefly explained, it can be explained that
gratification can lead to bribery and then bribery can lead to corruption which
results in the goal of equitable development distribution being not realized.
In terms of urgency, the Gratification which is
included as part of the offense element in the criminal act of corruption is
the need to abolish the gratification article by strengthening the offenses
listed in the crime of bribery. This can also be seen from the input of other countries
that participated in ratifying UNCAC, namely the country of Uzbekistan and the
United Kingdom (United Kingdom) on the evaluation of the implementation of
UNCAC in the regulation of gratification and bribery in the Law on the
Eradication of Corruption Crimes in Indonesia. In addition, there is a blurring
of norms (unclear norms) caused by elements of the criminal act of
gratification also contained in the elements of the crime of bribery while the
only difference is the concept of meeting of mind and mens
rea as explained by previous experts. Moreover, there is Article 12 C of the
Anti-Corruption Law which could potentially overlap with Article 12 B of the
Anti-Corruption Law in its implementation in the field. Thus the provisions
regarding criminal acts of gratification in the Anti-Corruption Law need to be
removed in order to provide legal certainty between gratification and the crime
of bribery.
2. Implementation
of Gratification in the Law on the Eradication of Corruption Crimes
At first, the criminal gratification had been
implemented into General Crimes through the Criminal Code (KUHP). Within the
umbrella of the Dutch colonial legacy of national criminal law, the crime of
gratification comes from the crime of bribery (omkoping)
in the Criminal Code, where the Criminal Code itself distinguishes 2 (two)
groups in the crime of bribery, namely the crime of giving bribes and the crime
of accepting bribes. bribe. For criminal acts where the legal subject is giving
bribes, it is also known as active bribery (active omkoping)
which is regulated in Chapter VIII Book II in Article 209 and Article 210 of
the Criminal Code and is part of the crime of the general authorities. The text
of the two articles is as follows:
Article 209
(1)
Threatened with a
maximum imprisonment of two years and eight months or a maximum fine of four
thousand five hundred rupiah:
1.
Whoever gives or
promises something to an official with the intention of moving him to do or not
to do something in his position that is contrary to his obligations;
2.
Anyone who gives
something to an official because or in connection with something that is
contrary to his obligations, is done or not done in his position. The
revocation of rights in Article 35 No. 1-4 can be dropped.
Article 210
(1)
Threatened with a
maximum imprisonment of seven years:
1.
Any person who
gives or promises something to a judge with the intention of influencing the
decision on a case submitted to him for trial;
2.
Any person who
gives or promises something to a person who according to the provisions of the
law is determined to be an advisor or adviser to attend a hearing or court,
with the intention of influencing the advice or opinion to be presented in
connection with a case submitted to the court for trial.
(2)
If the gift or
promise is made with the intention that in a criminal case a sentence is
imposed, the guilty person is threatened with a maximum imprisonment of nine
years.
(3)
Revocation of
rights based on Article 35 No. 1-4 can be dropped.
Meanwhile, the second group which is called passive
bribery (passive omkoping), the legal subjects are
civil servants who accept bribes as regulated in Chapter XVIII Book II in
Article 418, Article 419, and Article 420 of the Criminal Code, which reads in
full as follows:
Article 418
An official who accepts a gift or promise even though
it is known or ought to be suspected, that the gift or promise was given
because of the power or authority related to his position, or in the mind of
the person who gave the gift or promise that is related to his position, is threatened
with imprisonment at the most. six years or a maximum fine of four thousand
five hundred rupiah.
Article 419
An
official shall be punished by a maximum imprisonment of five years:
1)
Who accepts a
gift or promise even though he knows that the gift or promise was given to move
him to do or not do something in his position that is contrary to his
obligations;
2)
The recipient of
the gift knows that the gift is given as a result. or because the recipient has
done or not done something in his position that is contrary to his obligations.
Article 420
(1) Threatened with a maximum imprisonment of nine years:
1. A judge who accepts a gift or promise. even though it
is known that the gift or promise was given to influence the decision of the
case which is his duty;
2. Whoever according to the provisions of the law is
appointed as an adviser to attend a court session, receives a gift or promise,
even though it is known that the gift or promise was given to influence advice
on a case that must be decided by the court.
(2) If the gift or promise is accepted knowingly that the
gift or promise was given in order to be punished in a criminal case, the
guilty person is threatened with a maximum imprisonment of twelve years.
The
enactment of Law Number 20 of 2001 concerning Amendments to Law Number 31 of
1999 concerning the Eradication of Criminal Acts of Corruption is based on the
consideration that Law Number 31 of 1999 needs to be amended to avoid the
diversity of legal interpretations and provide protection for the rights of the
community, especially the rights of the community. social and economic aspects,
as well as fairer treatment in eradicating corruption. This can be seen from
several new provisions in Law Number 20 of 2001 which were not previously
contained in Law Number 31 of 1999. The provisions referred to are the
formulation of a new offense of gratification as part of a criminal offense of
corruption as well as the application of a reverse proof system that which is
an extension of the source of obtaining legal evidence and the right of the
state to file a civil lawsuit against the convict's hidden or hidden assets.
The reverse proof system is also applied to gratification and to claims for
confiscation of the defendant's property suspected of originating from one of the
criminal acts as referred to in Article 2, Article 3, Article 4, Article 13,
Article 14, Article 15, and Article 16 of Law Number 31 of 1999 concerning
Eradication of Criminal Acts of Corruption and Articles 5 to 12 of Law Number
20 of 2001.
Provisions
for the application of a reverse proof system or also known as "premium remidium" is a special preventive measure against
civil servants as referred to in Article 1 number 2, or against State
administrators as referred to in Article 2 of Law Number 28 of 1999 concerning
State Administrators who Clean and Free from Corruption, Collusion, and
Nepotism, not to commit criminal acts of corruption.
The
criminal act of gratification is regulated in Article 12 B of Law Number 20 of
2001. However, the provisions of gratification in Article 12 B have
similarities with Article 5 paragraph (2) and Article 6 paragraph (2) which
consist of: (1) In Article 5 paragraph (2) and Article 12 B the makers are
Civil Servants and State Administrators, while in Article 6 paragraph (2) the
makers are judges and advocates; (2) The actions of these three articles are
the same, namely accepting gifts or promises; (3) The purpose of the action is
for the civil servant or state administrator, judge or advocate to do something
or not to do something that is contrary to or contrary to his authority and
obligations (Hafrida, 2013).
Based
on the explanation of the formulation of the norms above, it can be seen that
the implementation of gratification in the Corruption Eradication Act seems too
excessive and convoluted which can later have an impact on the law enforcement process
in the field and what is more worrying can lead to uncertainty in law
enforcement.
When
looking at the process of criminalizing an act in criminal law, there are 3
important principles, namely:
�
Lex Certa means that legislators must formulate clearly and in
detail what is called a criminal act, define it clearly without being vague so
that there is no ambiguous formulation because an unclear or too complex
formulation can result in legal uncertainty (Andi & Azisa,
2016).
�
Lex Stricta emphasizes that a material in the legislation cannot
be expanded or interpreted other than what is written in the legislation or in
other words the principle of a provision or legislation cannot be extended
other than being determined explicitly and clearly according to the
legislation.
�
Lex Scripta emphasizes that the Act (statutory, law) must
regulate behavior (actions) which are considered as
criminal acts. Without a law that regulates prohibited acts, the act cannot be
said to be a criminal act.
In a
formulation of legal material that is not clear or too complicated will only
have an impact on legal uncertainty and hinder the success of prosecution
(criminal) efforts because the party who will be prosecuted will always be able
to defend himself that such provisions are not useful as a code of conduct.
Therefore, the Lex Certa principle emphasizes that
legislators must define norms clearly without ambiguity (nullum
crimen sine lege stricta).
Furthermore,
based on the Lex Stricta principle, the formulation
of the content of Article 12 B, which is similar to the formulation of the
content of Article 5 and Article 6, has the potential to be expanded and
interpreted differently than what is meant in the provisions concerning
gratification. This can be seen from the formulation of Article 12B paragraph 1
which reads: "Every gratuity to a civil servant or state administrator is
considered a bribe, if it is related to his position and is contrary to his
obligations or duties...". The meaning of the word "considered"
implies that "gratuity" is basically not a bribe, but if the granting
of gratification is "related to his position and contrary to his
obligations or duties" it will change its meaning to "giving a
bribe".
In
other words, gratification itself is an understanding of a gift in a broad
sense that can have a positive connotation that does not mean evil so that it
does not violate criminal provisions. But on the other hand, it can also have a
negative connotation which means to get an advantage that is contrary to the
obligations of civil servants or state administrators.
Based
on the formulation of Article 12 B which has the potential to overlap with
several articles related to the crime of bribery and from the elaboration of
the principles that can be used as a reference in criminalizing a criminal act
as referred to above, the writer hereby concludes that gratification is
basically not a crime because of gratification can be interpreted as a gift in
a broad sense where the gift if it has a positive connotation is not a crime,
but if it has a negative connotation then it can be said as a criminal act as
stated above. Therefore, it is necessary to make efforts to revise the
provisions of gratification in Article 12 B of the Law on the Eradication of
Criminal Acts of Corruption so that the implementation of gratification in law
enforcement of criminal acts of corruption can run optimally and have legal
certainty.
CONCLUSION
The emergence of new provisions in the Eradication of
Corruption Crimes in Indonesia is marked by the issuance of Law Number 20 of
2001 which regulates gratification where the provision was not previously
contained in Law Number 31 of 1999. Gratification as part of the element of
offense regulated in criminal acts of corruption are stated in Article 12 B of
Law Number 20 of 2001. The article states explicitly and clearly that giving to
a civil servant or state administrator is a criminal act if the purpose of the
gift is related to his position and is contrary to his obligations or duties.
The application of gratification in Law Number 20 Year
2001 has not been maximally implemented. This is because there is still a
vagueness or ambiguity of norms where the elements of Article 12 B are also
contained in the crime of bribery as described above. Even in several articles
related to bribe recipients, namely Article 5 paragraph 2 and Article 11 with a
much lower criminal threat. The ambiguity of these norms has the potential to
weaken law enforcement against criminal acts of gratification. In addition,
there is also one article, namely Article 12 C which actually decriminalizes
acts of gratification and grants impunity to recipients of gratification.
Although there is still an opportunity for the Corruption Eradication
Commission to determine whether gratuities can belong to the recipient or
become state property, this can be exploited by irresponsible law enforcers by
�negotiating� with the suspect/defendant in order to escape from legal bondage
so that what should be property of the state turns into the property of the
recipient.
The application of gratification in the Law on the
Eradication of Criminal Acts of Corruption basically aims to make the act of
gratification a criminal act of corruption with a high criminal threat. This is
very necessary because gratification is the initial entry point for committing
criminal acts of corruption that are more systemic and detrimental to the state
which is more severe so that it has an extraordinary impact. However, as
described above, gratification is not a crime, but a gift in a broad sense. It
would be inappropriate if gratification was formulated as part of a criminal
act in Article 12 B of Law Number 20 of 2001. In fact, the Law on the Eradication
of Criminal Acts of Corruption has regulated the Crime of Bribery, both for the
bribe giver and for the supposed bribe recipient. strengthened and elaborated
in more detail by including content material regarding 'illegal gratification'
on the part of the bribe recipient so that it can ensnare the perpetrators of
the crime of bribery, especially with the existence of a reversed burden of
proof system in the regulation of receiving the 'illegal gratification'.
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CRIMINALIZATION OF GRATIFICATION AS A CORRUPTION OFFENSE