Abolishing remission,
‘povertizing’, and reverse evidencing
Todung Mulya Lubis, A
Senior Partner of the Lubis, Santosa & Maramis Law Firm
SUMBER : JAKARTA POST, 04 April 2012
Discourses
on corruption eradication have never subsided since the nation declared a fight
against corruption, collusion and nepotism in 1998. Not a single day passes
without a story on the war on graft and news on corruption cases implicating
officials.
I once jokingly titled this article “Republic of Corruption”. We never cease to be frustrated at how there is no deterrence, despite the hundreds of corruption convicts sent to jail. It appears that the incessant war on corruption fails to spark a sense of fear in those intending to commit corruption.
Many public officials have pledged not to be corrupt, but their inner-circle tells us otherwise. It seems to us that corruption has been part of the DNA of many public officials.
We indeed have legislation and institutions in place to combat graft. We even have ratified the UN Convention against Corruption, which expands the definition of corruption and provides room for international cooperation in combating corruption. But all these fail to deliver an optimum result.
Of course there are loopholes here and there, but there are even more legal weapons that we can employ but are wasted. Ironically, those taking advantage of the loopholes are not the defendants, convicts or their lawyers, but the law enforcement institutions themselves. It is the law enforcement institutions that refrain from handing down severe punishment to graft convicts.
State prosecutors come with a weak prosecution and indictment. Police come with a corrupted outcome of an investigation. Judges come out with an apologetic sentence.
Lawyers defend graft suspects in all imaginable ways they can. There are always pretexts for this, and in the name of positive law and the legality principle to free the graft defendants or at least hand down a lenient punishment.
I do not support death penalty for corruption convicts, although Law No. 31/1999 on corruption eradication recognizes capital punishment. There are many other alternative serious punishments, such as life sentences without parole. This is, in fact, a very mean punishment — much more severe than the death penalty.
Some also propose a minimum jail sentence of 10 years or a fixed range of 15–20 years. Another controversial proposal is to isolate graft convicts on an island so that they can no longer enjoy the luxuries they can afford at penitentiaries in big cities where their friends and family members can easily come, bringing with them a host of luxuries virtually no different from what they can enjoy outside the prison walls.
I agree to those proposals, but the following three points, I believe, will help improve the chance of success in our war against corruption.
First, abolish sentence reduction, or remission, for corruption convicts. This is a highly controversial stance and has been met with opposition. From a legal point of view, the opposition is justified by Law No. 12/1995 on penitentiary systems, which acknowledges inmates’ rights to remission, access to mass media, healthcare, etc. Since the right to remission is guaranteed by the law, it cannot be circumvented simply by a decree of the law and human rights minister.
Now, why do we want to scrap the right of remission for graft convicts or tighten implementation of the law? Because corruption has been so severe and beyond help. The initiative of the law and human rights minister is a bold breakthrough. It deserves high appreciation by swiftly amending Law No. 12/1995 Article 14, which concerns inmates’ right to remission.
If we really are determined to fight corruption, we must give a room for such a legal breakthrough while at the same time expedite the amendment of the law. If both the government and the House of Representatives share the goodwill to support this breakthrough, the amendment is only a matter of time.
Second, “povertizing” graft convicts. Our criminal code recognizes the sentences of death, imprisonment, incarceration, fines and additional sentences which include ban on the exercise of certain rights, depriving the convict of certain things or objects, and publicly announcing the judge’s decision (Article 10 of the Criminal Code).
Law No. 30/2001, in conjunction with Law No. 31/1999 on corruption eradication, introduces the sentence of depriving convicts of the fruits of their corruption, but it is drafted in a too-short and general wording. This means that most sentences are only confined to imprisonment and fines, although seizures of state assets or wealth have also been exercised in many cases.
Yet, all these kinds of punishment leave the graft convicts and their families with so much wealth to enjoy. A lenient punishment would make the incentive to corrupt much greater than the punishment for corruption. As a result, corruption is well preserved, people are not deterred and things still go on “corruption as usual”.
I would like to propose, though it may sound very mean, the sentence of “povertizing” corruption convicts and their families. When they walk free after doing their time, they can no longer live in luxury.
To me, corruption is not a mere loss of state assets but also a betrayal of the oath of public officials, of the people and of religion, as well as family. People like them do not deserve mercy. They must be punished to the maximum extent and must be “povertized” in order to create a deterrence.
Third, reverse the burden of proof, or reverse evidencing. This is closely related to the corruption convict’s wealth. Is the wealth all legally gained or ill gotten?
Discourse on reverse evidencing has continued for a long time but has never materialized when it comes to corruption. This is because of the role of “strong people” who want to keep their wealth untouchable by the law.
But the success in corruption eradication is very much dependent upon success in evidencing and placing the burden of proof on state prosecutors is a daunting task for the state.
Therefore, reverse evidencing is a must, because then the onus is on defendants to prove that their wealth is legally gained. If they fail, it should be considered as proceeds of corruption.
Yes, this is mean, but we need to be mean with those who commit graft. Unfortunately, Law No. 31/1999 and its amendment, Law No. 20/2001, are not firm enough on the application of reverse evidencing (Articles 37 and 37A). The legal regime that is firm enough on the application of reverse evidencing is the one of money laundering, i.e. Article 78 of Law No. 8/2010 on money laundering.
Now the burden is on the judges: Do they want to apply reverse evidencing?
A judge who is bold and committed to corruption eradication is supposed to be courageous enough to apply reverse evidencing and it indeed is high time to apply it. So the question is: Do judges dare to apply reverse evidencing in all corruption cases from now on?
Indonesians really hope that the spirit of war on corruption is still firmly instilled in the mind and spirit of each and every law enforcer. If that spirit is there, I am certain that applying the three points will succeed in eradicating corruption, not continuing this pseudo-war against corruption. ●
I once jokingly titled this article “Republic of Corruption”. We never cease to be frustrated at how there is no deterrence, despite the hundreds of corruption convicts sent to jail. It appears that the incessant war on corruption fails to spark a sense of fear in those intending to commit corruption.
Many public officials have pledged not to be corrupt, but their inner-circle tells us otherwise. It seems to us that corruption has been part of the DNA of many public officials.
We indeed have legislation and institutions in place to combat graft. We even have ratified the UN Convention against Corruption, which expands the definition of corruption and provides room for international cooperation in combating corruption. But all these fail to deliver an optimum result.
Of course there are loopholes here and there, but there are even more legal weapons that we can employ but are wasted. Ironically, those taking advantage of the loopholes are not the defendants, convicts or their lawyers, but the law enforcement institutions themselves. It is the law enforcement institutions that refrain from handing down severe punishment to graft convicts.
State prosecutors come with a weak prosecution and indictment. Police come with a corrupted outcome of an investigation. Judges come out with an apologetic sentence.
Lawyers defend graft suspects in all imaginable ways they can. There are always pretexts for this, and in the name of positive law and the legality principle to free the graft defendants or at least hand down a lenient punishment.
I do not support death penalty for corruption convicts, although Law No. 31/1999 on corruption eradication recognizes capital punishment. There are many other alternative serious punishments, such as life sentences without parole. This is, in fact, a very mean punishment — much more severe than the death penalty.
Some also propose a minimum jail sentence of 10 years or a fixed range of 15–20 years. Another controversial proposal is to isolate graft convicts on an island so that they can no longer enjoy the luxuries they can afford at penitentiaries in big cities where their friends and family members can easily come, bringing with them a host of luxuries virtually no different from what they can enjoy outside the prison walls.
I agree to those proposals, but the following three points, I believe, will help improve the chance of success in our war against corruption.
First, abolish sentence reduction, or remission, for corruption convicts. This is a highly controversial stance and has been met with opposition. From a legal point of view, the opposition is justified by Law No. 12/1995 on penitentiary systems, which acknowledges inmates’ rights to remission, access to mass media, healthcare, etc. Since the right to remission is guaranteed by the law, it cannot be circumvented simply by a decree of the law and human rights minister.
Now, why do we want to scrap the right of remission for graft convicts or tighten implementation of the law? Because corruption has been so severe and beyond help. The initiative of the law and human rights minister is a bold breakthrough. It deserves high appreciation by swiftly amending Law No. 12/1995 Article 14, which concerns inmates’ right to remission.
If we really are determined to fight corruption, we must give a room for such a legal breakthrough while at the same time expedite the amendment of the law. If both the government and the House of Representatives share the goodwill to support this breakthrough, the amendment is only a matter of time.
Second, “povertizing” graft convicts. Our criminal code recognizes the sentences of death, imprisonment, incarceration, fines and additional sentences which include ban on the exercise of certain rights, depriving the convict of certain things or objects, and publicly announcing the judge’s decision (Article 10 of the Criminal Code).
Law No. 30/2001, in conjunction with Law No. 31/1999 on corruption eradication, introduces the sentence of depriving convicts of the fruits of their corruption, but it is drafted in a too-short and general wording. This means that most sentences are only confined to imprisonment and fines, although seizures of state assets or wealth have also been exercised in many cases.
Yet, all these kinds of punishment leave the graft convicts and their families with so much wealth to enjoy. A lenient punishment would make the incentive to corrupt much greater than the punishment for corruption. As a result, corruption is well preserved, people are not deterred and things still go on “corruption as usual”.
I would like to propose, though it may sound very mean, the sentence of “povertizing” corruption convicts and their families. When they walk free after doing their time, they can no longer live in luxury.
To me, corruption is not a mere loss of state assets but also a betrayal of the oath of public officials, of the people and of religion, as well as family. People like them do not deserve mercy. They must be punished to the maximum extent and must be “povertized” in order to create a deterrence.
Third, reverse the burden of proof, or reverse evidencing. This is closely related to the corruption convict’s wealth. Is the wealth all legally gained or ill gotten?
Discourse on reverse evidencing has continued for a long time but has never materialized when it comes to corruption. This is because of the role of “strong people” who want to keep their wealth untouchable by the law.
But the success in corruption eradication is very much dependent upon success in evidencing and placing the burden of proof on state prosecutors is a daunting task for the state.
Therefore, reverse evidencing is a must, because then the onus is on defendants to prove that their wealth is legally gained. If they fail, it should be considered as proceeds of corruption.
Yes, this is mean, but we need to be mean with those who commit graft. Unfortunately, Law No. 31/1999 and its amendment, Law No. 20/2001, are not firm enough on the application of reverse evidencing (Articles 37 and 37A). The legal regime that is firm enough on the application of reverse evidencing is the one of money laundering, i.e. Article 78 of Law No. 8/2010 on money laundering.
Now the burden is on the judges: Do they want to apply reverse evidencing?
A judge who is bold and committed to corruption eradication is supposed to be courageous enough to apply reverse evidencing and it indeed is high time to apply it. So the question is: Do judges dare to apply reverse evidencing in all corruption cases from now on?
Indonesians really hope that the spirit of war on corruption is still firmly instilled in the mind and spirit of each and every law enforcer. If that spirit is there, I am certain that applying the three points will succeed in eradicating corruption, not continuing this pseudo-war against corruption. ●
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