LAW OF CORRUPTION:

An Overview

DEFINITIONThe Law of corruption can be defined as all legal rules relating to corruption.The purpose of this law is to prevent and to overcome corruption problem. It defines conducts qualified as crime of corruption and regulates the way to combat corruption crimes.In Indonesian context, law of corruption can be found in several legislations.

LEGISLATIONS RELATING TO CORRUPTION: Historical Development

KUHPPeraturan Penguasa Perang Nomor Prt/Perpu/013/1958UU No 24/Prp/1960UU No 3 Tahun 1971

Cont’

UU 28 Tahun 1999 Tentang Penyelenggaraan Negara yang Bebas dari Korupsi, Kolusi dan Nepotism UU Nomor 31 Tahun 1999 Tentang Pemberantasan Tindak Pidana KorupsiUU Nomor 20 Tahun 2001 Tentang Perubahan atas UU No 31 Tahun 1999UU Nomor 30 Tahun 2002 Tentang Komisi Pemberantasan Korupsi

4

Cont’

UU Nomor 1 Tahun 2006 Tentang Bantuan Timbal Balik dalam Masalah Pidana (Mutual Legal Assistance in Criminal Matters)UU Nomor 7 Tahun 2006 Tentang Pengesahan the UN Convention Against Corruption 2003/UNCAC.UU Nomor 13 Tahun 2006 Tentang Perlindungan Saksi dan KorbanUU Nomor 46 Tahun 2009 Tentang Pengadilan Tipikor

CRIMES OF CORRUPTION1) Illicit enrichment which causes financial loss of the state;2) Bribery;3) Embezzlement;4) Extortion;5) Fraud;6) Corruption relating to procurement; and7) Gratification.Note:All seven categories above have been broken down into various corruption offences.

1. ILLICIT ENRICHMENTThe basic and the most common form of corruption is illicit enrichment. It can be said that the essence of corruption is illicit enrichment.There are two offences under this category as may be seen in the following provisions:Section 2 of the Corruption Act 1999Section 3 of the Corruption Act 1999

2. BRIBERYBribery is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or other person in charge of a public or legal duty. Bribery involves two parties; one who bribes and another one who is bribed. Under the Indonesian law of corruption, both are punishable.There are twelve offences under this category as may be seen in section 5 (1) (a); section 5 (1) (b); section 5 (2); section 6 (1) (a); section 6 (1) (b); section 6 (2); section 11; section 12 (a); section 12 (b); section 12 (c); section 12 (d), and section 13.

3. EMBEZZLEMENTEmbezzlement is an act of dishonestly withholding assets for the purpose of conversion (theft) of such assets, by one or more persons to whom the assets were entrusted, either to be held or to be used for specific purposes. There are five offences under this category as may be seen in the following provisions:Section 8;Section 9;Section 10 (a);Section 10 (b); andSection 10 (c).

4. EXTORTIONExtortion (blackmail) is the practice of obtaining something, especially money, through force or threats.There are three offences under this category as may be seen in the following provisions:Section 12 (e);Section 12 (f); andSection 12 (g).

5. FRAUDFraud can be defined as deliberate deception to secure unfair or unlawful gain.There are six offences under this category as may be seen in the following provisions:Section 7 (1) (a);Section 7 (1) (b);Section 7 (1) (c);Section 7 (1) (d);Section 7 (2); andSection 12 (h)

6. CORRUPTION RELATING TO PROCUREMENT

Procurement, especially of government project, opens the opportunity of corruption. Corruption relating to procurement is governed in section 12 (i) of the Corruption Act 2001.

7. GRATIFICATIONThe latest form of corruption is the so-called gratification. It was introduced the Corruption Act 1971 (UU 3/1971) and was highlighted in the Corruption Act 1999 (UU 31/1999). Under the Corruption Act 1999, gratification is governed in section 12 B vide 12 C.

Corruption-Related OffencesThe Corruption Act 1999 also defines some conducts as crimes.

1. Obstruction of justice (section 21);

2. Giving no information or giving wrong information (section 22 vide section 28);

3. Bank rejects to give information on the suspect’s account (section 22 vide section 29);

4. Expert gives no testimony or gives wrong testimony (section 22 vide section 35);

5. Person who keeps the official secret gives no information or gives wrong information (22 vide 36); and

6. Witness who discloses the reporter’s identity (Section 24 vide 31).

The Important Issues of the Corruption Act 1999

1) Attempt and giving assistance in the crime of corruption are considered as a complete offence. They gain no mitigation of punishment. In other words, attempt and giving assistance are not considered as mitigating factor;

2) Corporation is subjected to criminal liability (corporate criminal liability);

3) The nature of punishments attached to the crimes of corruption are cumulative and cumulative-alternative, beside the Act also introduce the special-minimum punishment.

4) The application of special procedures in the form of:a) The shift of the burden of proof;b) The seizure of the corruptor’s asset;c) The payment of the so-called ‘uang pengganti’; and d) the possibility to hold ‘in absentia trial’.