Public Oversight Required in KUHP Bill Deliberation
The deliberation of the Criminal Code (KUHP) bill serves as a test on the government and the House of Representatives’ commitment to eradicating corruption in Indonesia. The public should oversee the bill’s deliberation.
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ANTARA FOTO/HAFIDZ MUBARAK
Corruption Eradication Commission (KPK) chairman Agus Rahardjo (second left) poses with the central executive board deputy chairman of Muhammadiyah’s Youth Wing, Virgo Sulianto Gohardi (second right) and former KPK deputy chairman Mochammad Jasin (left) at the KPK’s Jakarta headquarters on Tuesday (5/6). The three, along a number of anti-corruption activists, have established the Anti-Corruption Coalition to oppose the inclusion of an article on corruption in the Criminal Code (KUHP) Bill, which has been deemed to undermine the KPK’s authority in eradicating corruption in the country.
JAKARTA, KOMPAS – Public oversight is required in the deliberation of the Criminal Code (KUHP) bill to prevent the codification of the country’s criminal code from being hijacked by certain interests, including those that seek to weaken corruption eradication efforts.
Such a concern arose from the inclusion of four articles from Corruption Law No. 31/1999 – which has been amended through Law No. 20/2001 – in the KUHP bill. These four are articles 2, 3, 5 and 11.
On Tuesday (5/6/2018), civil rights activists went to the Corruption Eradication Commission (KPK) headquarters to urge the government and the House of Representatives to drop corruption articles from the bill.
Meanwhile, a petition titled “KPK dalam Bahaya. Tarik Semua Aturan Korupsi dari RKUHP” (“KPK in Danger. Drop All Corruption Articles from the KUHP bill”) has emerged on online petition website change.org. The petition was started four days ago and, as of Tuesday night, it has obtained 56,000 signatures.
Commitment
President Joko “Jokowi” Widodo reaffirmed on Tuesday that the government was committed to reinforcing the KPK.
Separately, Vice President Jusuf Kalla said that the inclusion of the Corruption Law’s core articles in the KUHP bill did not mean that the Corruption Law was void. “As long as the Corruption Law is not revoked, it remains applicable,” he said. Consequently, the KUHP bill – once approved – will prevail side by side with preexisting laws on special crimes, including the Corruption Law.
Gadjah Mada University (UGM) professor of criminal law Edward Omar Sharif Hiariej and University of Indonesia (UI) professor of criminal law Topo Santoso separately said that the inclusion of several general stipulations of special crime laws into the KUHP bill did not necessarily change how the state’s criminal justice system dealt with special crimes. Corruption, drug crimes, terrorism and gross human rights violations remain extraordinary crimes. Specific laws on these special crimes also remain applicable despite the inclusion of some of their general stipulations into the KUHP bill.
“The inclusion of corruption articles in the KUHP bill does not undermine the preexisting Corruption Law as the formal stipulations are still found in these preexisting laws, including the KPK Law and the Corruption Law. Only the core articles are included in the KUHP bill,” Edward said.
Edward, a member of the government’s KUHP bill team, said that the bill also included stipulations on the United Nation Convention Against Corruption (UNCAC) that had yet to be adopted in the Corruption Law.
Stipulations regarding punishments on gratuity, trading in influence, private sector corruption and bribery on foreign officials are included in the KUHP bill.
“Thus, the KUHP bill complements the Corruption Law as there are some stipulations not found in the Corruption Law but included in the KUHP bill,” Edward said.
“Our criminal justice system states that the KUHP can only include general stipulations without negating other, specific regulations. The legal principle of lex specialis derogat legi generali, or specific laws prevailing over general laws, remains,” he continued.
Topo said that the KUHP bill’s corruption articles would not negate other, more specific laws or render them void.
“If no specific stipulations are found outside of the KUHP, then the stipulations in the KUHP are followed. However, if there are specific laws outside of the KUHP, then everything follows the specific laws. Therefore, there is no need to worry about the inclusion of corruption articles in the KUHP as the specific laws still exist and are applicable,” Topo explained.
Remaining authoritative
The Law and Human Rights Ministry’s National Law Development Agency head, Enny Nurbaningsih, said that, in principle, the KPK remained the authoritative body in tackling corruption.
Article 729 in the KUHP bill’s transitional provisions stipulates that the Corruption Law and other laws on special crimes will remain applicable after the bill is approved. The article states that, once the KUHP bill is approved, its stipulations on special crimes are applicable in line with the relevant institutions’ authority as stipulated in its respective preexisting laws.
Furthermore, Enny said, penalties found in the Corruption Law but not included in the KUHP bill, including on restitutions (as stipulated in Article 18 of the Corruption Law), remained applicable. “We will still use the Corruption Law on such matters,” she said.
A KUHP bill working committee member from the United Development Party (PPP) faction, Arsul Sani, said that criminal punishments for corruption in the KUHP bill were different from those in the Corruption Law. For instance, the minimum penalty for those guilty of corruption is four years in prison according to Article 2 of the Corruption Law. In the KUHP bill, the minimum penalty is reduced to two years in prison.
Nevertheless, there are other articles in the KUHP bill with harsher sentences than those in the Corruption Law. For example, the Corruption Law stipulates a minimum imprisonment of one year for civil servants or state officials who abuse their positions or authority. In the KUHP bill, the minimum punishment is two years in prison.
Arsul said that any differences in criminal punishments did not mean that the House was seeking lighter sentences or those guilty of corruption. Deliberation over this issue among House factions has yet to be completed and will still continue.
