Law Enforcement during the Pandemic

KOMPAS/NINO CITRA ANUGRAHANTO

The Coordinating Minister for Political, Legal and Security Affairs Mahfud MD (third from right) explained the contents of the reflection meeting and projections for the 2020 simultaneous regional elections in Yogyakarta, Monday (14/12/2020).

In casu extremae necessitates omnia sunt communia (in cases of extreme necessity, all action is deemed necessary). This postulate describes the world condition, including in Indonesia, since the outbreak of COVID-19.

A very significant impact has been felt in various fields of life. President Joko “Jokowi” Widodo declared COVID-19 a nonnatural disaster on a national scale. The government adopted several policies to make adjustments to the situation.

The same is true of law enforcement as a whole, which has had to adapt to the pandemic, including the operation of the criminal justice system.

Criminal justice system

In simple terms, the criminal justice system means the process of operation of various institutions in criminal law enforcement, which in this case are the police, the prosecutor’s office and the court of law, including penitentiaries and attorneys. Different policies were adopted in the early part of the pandemic, ranging from the “house arrest” program for tens of thousands of convicts – although in terms of assimilation, including expedited conditional release, suspension and conversion of detention for suspects and the online trials of defendants whose terms of detention were near expiration.

Despite the ensuing controversy, the policies were quite rational. It has been an undeniable fact that penitentiaries have exceeded their capacity such that COVID-19 restrictions are impossible to apply. On the one hand, convicts undergoing assimilation should remain in penitentiaries, but on the other hand there is a need to prevent any further spread of COVID-19 by imposing social restrictions, so inmates have had to be put under house arrest.

Also read: Surviving Without Income during the Pandemic

The same applies to expedited conditional release. Although no longer in prison, convicts continue to be under surveillance. The same policy was followed by the National Police, which imposed social restrictions by suspending detention or converting detention from confinement in prison into house arrest or city arrest.

For defendants in their trial phase, the Supreme Court issued a regulation on the implementation of online trials. This regulation deserves appreciation. Defendants in detention houses were brought forward by virtual means while the judicial panel, public prosecutors and attorneys convened in court while strictly adhering to health protocols. Similarly, witnesses and experts were heard through teleconference. The same was done by the police in conducting investigations, and some official reports were prepared online.

It is undeniable that the social impact of Covid-19 has caused a significantly high rate of criminality, especially street crimes like murders, holdups, robberies, online prostitution, hoax dissemination, insults, even extraordinary crimes such as illicit narcotic trafficking and several acts of terrorism in the country. It should be understood that the crimes are committed in an emergency situation – a pandemic – aggravating the offenses. Therefore, law enforcement, especially court rulings, should consider this emergency situation and condition. Besides serving as a deterrent for perpetrators, it can also function as a general prevention so that no similar crimes recur.

Large-scale social restrictions

The increasing COVID-19 transmission from the beginning of the pandemic to this moment has forced nearly all regions to declare a state of health emergency by referring to Law No.6/2018 on health quarantine. Basically, the said law is an administrative law carrying criminal sanctions. Based on this law, everybody is obligated to abide by the implementation of health quarantine as stipulated in Article 9 paragraph 1.

Also read: Domestic Innovations to Detect COVID-19

One form of health quarantine is the imposition of large-scale social restrictions (PSPB) as determined by the health minister at the proposal of regional heads. The PSBB at least cover the temporary closure of schools and places of work, restrictions on religious activities and on activities in public places or facilities.

National law enforcement is indeed conducted by the National Police, but as the spearhead of enforcement in regions, it is executed by civil servant investigators, in this case the Public Order Agency (Satpol PP).

Although the law is nationally effective, its further validity related to PSBB is specified in regional regulations or those of governors, regents or mayors in view of the diverse characteristics of COVID-19 transmission in regions. The same is true in the context of their law enforcement. National law enforcement is indeed conducted by the National Police, but as the spearhead of enforcement in regions, it is executed by civil servant investigators, in this case the Public Order Agency (Satpol PP).

In the law under review, there is a criminal provision that I call the “omnibus article”, which is Article 93, stipulating, “Anybody who fails to abide by the implementation of health quarantine as expressed in Article 9 Paragraph 1 and/or hampers the implementation of health quarantine so that it causes a public health emergency shall be sentenced to maximum imprisonment of one year and/or a maximum fine of one hundred million rupiah.”

KOMPAS/KRISTIAN OKA PRASETYADI

An integrated security post for Covid-19 screening was established at the border on Jalan Trans Sulawesi, Malalayang, Manado, North Sulawesi, on Tuesday (29/12/2020).

Based on the article’s construction, at least two things need to be understood. First, whatever acts (not using face masks, taking corpses by force or preventing the burial of COVID-19-afflicted bodies, gathering crowds without distancing, refusing swab tests or vaccines and so forth) that do not conform to health protocols are liable to the sentence in the said article. Second, the penalty imposed can take the form of a fine or imprisonment or both.

In order to ascertain public compliance with health protocols, the government has carried out Operation Justice involving the Indonesian Military and the National Police to support the performance of Satpol PP’s duty. Sadly, the number of PSBB violations in some regions was rising and this was very significantly followed by new cases of virus infection. For instance, PSBB violations in Jakarta in the first period totaled around 15,000, while in the second period of PSBB in Jakarta the number rose to 19,000 violations.

Also read: Synergy in Overcoming Pandemic

This means that law enforcement on PSBB violations has not been executed efficiently and effectively. While the public’s legal awareness about compliance with health protocols is low, inconsistency on the part of law enforcers is a factor contributing to the violation figures.

The mass gathering case in Petamburan in mid-November should have been prevented because the host invited everybody to attend his party while he knew for certain that Jakarta was implementing PSBB. The invitation to be present at the party, which was made in public using a loudspeaker, was more than enough to prove the call for violating PSBB because social restrictions were impossible to realize with such a massive crowd of people.

Unfortunately, as the party host was already warned by the authorized personnel but ignored the warning, the violation was thus complete. The National Police Chief’s stern measures of replacing the Jakarta Police chief and the West Java Police chief in response to the crowds of people in Petamburan and Mega Mendung should be appreciated. The same appreciation should be given to the Jakarta governor, who discharged the Central Jakarta mayor for his failure to prevent crowding even though the governor and deputy governor were present in the crowd.

Corruption eradication

At a time when the state and people were striving hard to curb the rate of virus transmission, the public was surprised by arrest operations launched by the Corruption Eradication Commission (KPK). Not just anybody, this time the people arrested were the maritime affairs and fisheries minister and the social affairs minister, in an interval of less than two weeks. Both ministers’ arrests seem to respond to public doubt about the KPK’s performance and show that, in fact, the KPK still has its fangs. A public debate has followed over whether the suspects should be liable for capital punishment.

With reference to the Corruption Law, the only provision regarding capital punishment is Article 2 Paragraph 2, which basically specifies an act against the law to enrich oneself or others or a corporation that causes financial loss to the state or the state economy under certain circumstances. Falling under certain circumstances is a state of emergency. The provision of life imprisonment in this law is Article 12, related to taking bribes, and Article 12 B on gratuities.

In my view, the two ministers could be subject to Article 2 Paragraph 2 of the law. The judicial arguments are first; the act of taking bribes is basically against the law because it means receiving something unrightfully. The word law in the phrase “against the law” is interpreted as a subjective right (see Noyon & Langemeijer, 1947, pages 7-8). Second, the element of enriching oneself is an undeniable fact as revealed by the KPK.

Third, it involves financial loss inflicted on the state or the state economy. In the case of the social affairs minister, the element of state loss is concretely noticeable in the Rp 10,000 cut per package of basic necessities as a kickback. There’s no state loss if the Rp10,000 cut per package is later transferred to the state treasury. In the case of the maritime affairs and fisheries minister, the state loss element still needs to be examined. However, regarding the state economy, it seems the KPK should consult economists.

Fourth, the COVID-19 pandemic is a state of health emergency of not only a national but also a global scale.

The demand for capital punishment or at least life imprisonment should be considered by the KPK. In the doctrine of criminal law, the aggravation of a sentence occurs when there are several possibilities. First, the

In the case of the alleged corruption by the fisheries minister and the social affairs minister, two possibilities can aggravate the offense, which are the crime committed while in office and the crime committed in a state of disease contagion.

perpetrator is a recidivist. Second, the act takes place along with a criminal offense. Third, the crime is committed while in office. Fourth, the crime is committed during a natural disaster, commotion or outbreak of a disease. In the case of the alleged corruption by the fisheries minister and the social affairs minister, two possibilities can aggravate the offense, which are the crime committed while in office and the crime committed in a state of disease contagion.

Law enforcement projection for 2021

The invention of COVID-19 vaccines doesn’t mean a normal life as before. Health protocols remain effective and therefore the operation of the criminal justice system by the various law enforcement institutions remains the same as the condition in 2020.

Kompas

Indonesian President Joko Widodo wearing a protective mask and face shield talks as he inspects the third phase trial for COVID-19 vaccine in Bandung, Indonesia, August 11, 2020.

Stern action against PSBB violators is still needed to reduce the rate of transmission of the disease. In addition, the different programs of social safety networks should have the right targets. The accuracy of data on the people entitled to receive social aid is the key to the prevention of the misappropriation of aid.

While preventing any social revolution due to the economic crisis and high unemployment as an impact of the pandemic, the diverse programs of social safety networks undertaken by the state are expected to be able to lower the rate of criminality amid the difficulty in daily life. Likewise, tight surveillance of convicts put under house arrest is also required so that they won’t repeat their crimes. Penitentiaries can cooperate with the lowest level of the government apparatus, which is the subdistrict, to compile data and watch over former inmates now under house arrest.

Law enforcement in early 2021 will be faced with various lawsuits filed with the Constitutional Court concerning fraud issues in the regional elections held on Dec. 9.

As for corruption eradication, leftover cases of the past should be given due attention, particularly a number of people who have been named suspects for years but the settlement of whose cases remains uncertain. If there’s enough evidence, their trial should start promptly. But if their investigation has no further developments, the new KPK law has provided an instrument of inquiry discontinuation.

Eddy OS Hiariej, Professor of criminal law at the Gadjah Mada University Faculty of Law in Yogyakarta

(This article was translated by Aris Prawira)