Article 2 and Article 3 of the Law on the Eradication of Corruption
By: AM Oktarina Counselor at Law
Drafted by: Eduward Pandapatan Lubis, S.H, Nasfy Istani Daely, S.H, Imas Puji Nuryanti, S.H
Reviewed by: Noverisky Tri Putra Pasaribu, SH, LL.M (Adv).
On July 24, 2020 the Ministry of Law and Human Rights has promulgated Supreme Court Regulation (PERMA) No. 1 of 2020 concerning Guidelines for Criminalization Article 2 and Article 3 of the Law on the Eradication of Corruption with the purpose of providing guidance to the Panel of Judges in adjudicating cases of Corruption Crime so as to avoid disparities (differences) in cases of similar character . Supreme Court Regulation (PERMA) Number 1 of 2020 has been stipulated and signed by the Chairman of the Supreme Court of the Republic of Indonesia Dr. H. Muhammad Syarifuddin, SH, MH dated July 8, 2020. Based on this, the Corruption Eradication Commission (KPK) gave a positive response to the Regulations issued by the Supreme Court in realizing Legal Certainty and Justice in its criminal process .
Articles 2 and 3 of Law 31 of 1999 concerning Eradication of Corruption Crime basically do not provide certainty regarding the considerations used by judges in giving criminal convictions to corruptors due to articles 2 and 3 of the Law on the Eradication of Corruption only explain the range of imprisonment and fines that must be paid without any special classification. In the PERMA No. 1 of 2020 provides a more detailed explanation regarding matters and systematic for the judges in determining the imposition of crimes based on state financial losses, the level of error, impact, and profit, the range of criminal charges, burdensome and mitigating circumstances, imposition of punishment. Furthermore, the categorization of state financial losses is one of the important points because it is the first (first) stage in carrying out the criminalization guidelines for articles 2 and 3 of the Law on the Eradication of Corruption, this is as contained in the Attachment to the Regulation of the Supreme Court No.1 of 2020 which is divided into several categories according to Article 6 paragraph (1) and (2) PERMA No. 1 Year 2020, which reads:
1. In the case of adjudicating criminal cases Article 2 of the Law on the Eradication of Corruption, state financial losses or the country’s economy are divided into 4 (four) categories as follows:
2. In the case of adjudicating criminal cases Article 3 of the Law on the Eradication of Corruption, state financial losses or the state economy are divided into 5 (five) categories as follows:
Based on the contents of Article 6 paragraph (1) and (2) PERMA No. 1 of 2020 there are differences in the number of categories, in paragraph (1) which is a further explanation of Article (2) of the Law on the Eradication of Corruption, there are 4 categories from heaviest to light and paragraph (2) PERMA No. 1 of 2020, which is a further explanation of article (3) of the Law on the Eradication of Corruption, there are 5 categories from the heaviest to the lightest, this is related to differences in the formulation in Article 2 and Article 3 of the Law on the Eradication of Corruption.
Furthermore, the Independent Corruption Eradication Commission (KPK) has established a prosecution guideline for the Public Prosecutor which was later adjusted to PERMA No. 1 of 2020 as said by the Deputy Chairman of the KPK, Nawawi Pomolango that is “The disparity in the verdict is a very real injustice. The KPK is also currently working on completing the prosecution guidelines”. The Supreme Court Regulation No.1 of 2020 is still incomplete due to the many types of corruption that’s has not been regulated by law apart from abuse of office and abuse of authority, there are still types of corruption such as gratification and bribery and extortion, whose number of cases is also often found in dissertations in judges’ verdicts. So that later the regulation is stipulated and ratified with the consideration that the imposition of punishment must provide certainty and proportionality of the punishment so that it can avoid disparity in cases that have the same character.
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