Corruption : An extraordinary crime  Indah Amaritasari  ;   A lecturer in international human rights law at the National University, A consultant for human rights and gender equality

JAKARTA POST,  23 Februari 2014

                                                                                                                       

                                                                                         

                                                                                                                       

In late 2013, some media outlets reported on state attempts to weaken the fight against corruption. The Corruption Eradication Commission (KPK) became wary of measures to implement structural changes to the Criminal Code (KUHP) and the Criminal Procedural Code (KUHAP) that are being deliberated in the legislature. In the criminal laws, corruption is not categorized as an extraordinary crime. Let’s look at international law in regard to this issue. Indonesia is a party to both the International Convention against Corruption (ICC) and the United Nations Convention against Transnational Organized Crime (UNCTOC). The UNCTOC was adopted by the UN General Assembly in 2000, whereas the ICC was approved later in 2003. In 2006, Indonesia became a party to the ICC and later ratified the UNCTOC in 2009. Corruption is mentioned in articles eight and nine of the convention on organized crime. In the introduction section of the ICC, Kofi Annan — the then UN secretary-general — said that corruption was an insidious plague with a wide range of corrosive effects on societies. It undermines democracy and the rule of law, leads to violations of human rights, distorts markets, erodes the quality of life and allows organized crime, terrorism and other threats to human security to flourish. There is still no single, universally accepted and comprehensive definition of corruption. Attempts to develop such a definition invariably encounter legal, criminal and, in many countries, political issues. As the negotiations of the Convention against Corruption began in early 2002, options included not defining corruption at all, as well as proposals listing specific forms or acts of corruption. Finally, corruption was divided into grand corruption and petty corruption — and the separation of “passive” and “active” corruption. Indonesian legal scholars were divided into those who supported corruption as an extraordinary crime and those who did not. The first group argued corruption had a wide impact on the social and moral system, which can be associated with human rights violations. The second group claimed that it was inappropriate to call corruption an extraordinary crime because both the above conventions do not refer to graft as such. They argued that the International Criminal Court’s list of extraordinary crimes did not include corruption. However, article nine of the convention on organized crimes mentions measures against corruption. The first point of the article explains that a state party shall, to the extent appropriate and consistent with its legal system, adopt legislative, administrative or other effective measures to promote integrity and to prevent, detect and punish the corruption of public officials. Point two says that the state party shall take measures to ensure effective action by its authorities in the prevention, detection and punishment of the corruption of public officials, including providing such authorities with adequate independence to deter the exertion of inappropriate influence on their actions. Meanwhile the Convention against Corruption, article 30, addresses the issues of prosecution, adjudication and sanctions of corruption. It says that regarding offenses listed in the convention, each state party should “maximize the effectiveness of law enforcement measures in respect of those offenses and with due regard to the need to deter the commission of such offenses”. Thus, the fundamental question is whether it is effective to fight corruption if it is qualified as an ordinary crime, dealt with using ordinary measures. So far, actions by the KPK have shown that corruption in Indonesia must be viewed as an extraordinary crime, dealt with by the extraordinary authority of the KPK. In conclusion, failure to categorize corruption as an extraordinary crime in the criminal code and criminal procedural code can lead to ineffective law enforcement on corruption. This can certainly hamper the implementation of both conventions on corruption. ●