By: Esther Roseline, S.H., CFE.
Deputy Director of Anti-Fraud & Anti-Corruption Consultant at Bibit Samad Rianto Center
Legal Services Director at Awesome Consulting
After 20 years of reformation, our society still suffers a deluge of jaw-dropping bribery cases that unceasingly overwhelms our mass media, as if all legitimate attempts to dissuade remain futile. While Transparency International Corruption Perceptions Index 2017 still ranked Indonesia among the most corrupt countries in the world, the 2017 Corruption Eradication Commission (KPK) Annual Report data recorded that bribery is the major case handled throughout 2017 with the highest number of occurrences. A pressing need to intensify focus on bribery arises.
The large number of bribery occurrences compounded with the high number of corruption cases involving private sector (as recorded in 2017 KPK Annual Report) compels the condemnation of private sector for being both rife with bribery and deemed untouched by the law. Consequently, predicated upon the ratification of United Nation Convention Against Corruption (UNCAC), in 2017, provision on private commercial bribery was decided to be included in the Draft Law of Criminal Code, which was later suspended in 2018 when a consideration emerges that such provision should have gone under Corruption Law instead.
The plan to include private commercial bribery provisions within our Corruption Law is truly a laudable action. Nonetheless, eliding existing important issues when proceeding towards a praiseworthy development may plunge everything into futility.
The first issue is: is it true that we have no prevailing law against bribery in private sector?
Law No. 11 Year 1980 on Bribery has been enacted 38 years ago, and is still applicable until now. The scope of bribery regulated in this law broadly extends beyond public sector, covering (1) the offering or promising of something to a person, with the intention to induce the person to do or refrain from doing something within his scope of duties, contrary to his functions/authority or official duties which are related to public interest, and (2) the acceptance of something or a promise, while it is known or it is reasonably suspected that such offers are made in order that he act or refrain from acting within his scope of duties, contrary to his functions/authority or official duties which are related to public interest. Unfortunately, this law is now in oblivion, leaving private commercial bribery intact, forcing victims to resort to private settlements for recovery.
Some blame the law’s unclarity for causing the difficulty of proving its elements. Nevertheless, with careful examination, one can discern that the elements in the bribery law’s clauses have no substantial difference with the bribery provisions in Corruption Law No. 20 Year 2001 (particularly Article 5 and 12), except for the additional element of “which are related to public interest.” One may argue that the “public interest” element carries the most uncertainty due to its wide scope with no clear limitation provided in the law. However, the “public interest” phrase has been a very common element contained in our laws (such as in our defamation provision in Criminal Code), and in no way it has become a hindrance to the laws’ applicability. Hence, has it been the nonexistence of law that obstructs law enforcement upon private commercial bribery, or actually it is the “absence” of law enforcement that has become the major roadblock?
The second issue is, is it true that most bribery occurrences in this country originate solely from the private sector? Shall we all turn a blind eye to the existence of the extremely prevalent facilitation payments that sometimes – if not most of the times – appear more like “soft extortion payment” in which it is not one’s health, safety, or liberty that is at stake but simply one’s legitimate legal rights? Yet the sufficiency of legal instruments in place to stall this practice still remains a questionable matter.
The public sector bribery provisions in the Corruption Law No. 20 Year 2001 themselves are still laden with problems. Related to the issue of facilitation payments mentioned above, our Corruption Law must recognize that bribery is not necessarily conducted to induce actions against/contrary to one’s duties, but simply in relation to one’s duties. This principle is consistent with ISO 37001 Anti-Bribery Management Systems, which was recently instructed to be implemented through Presidential Instruction No. 10 Year 2016. Secondly, Article 5 paragraph (2) and Article 12 letters (a) and (b) of the Law are intended for the same target – recipient of bribery – yet charge sanctions with huge severity discrepancy. Related to this, our existing Corruption Law still perilously neglects a very important element that must be existing in any corrupt act, that is, intention. Consistent with UNCAC: without corrupt intent, there is no corruption. The element of “reasonably suspected” is not sufficient to establish the standard of “corrupt intent.” On the other hand, recipient is able to prove the absence of corrupt intent by immediately going through the reporting mechanism to KPK. However, the element of corrupt intent should have been sustained (until proven otherwise), if the reporting is done in situations described in Article 4 of KPK Regulation No. 6 Year 2015. The reporting mechanism should not, in any event, absolve the perpetrators of criminal charges (as how implied in Article 12C of Corruption Law No. 20 Year 2001) – it could only help recipients establish their absence of corrupt intent if, and only if, conducted properly and in legitimate situations. Hence, Article 12C paragraph (1) of Corruption Law No. 20 Year 2001 should be rephrased to: “The provision as intended in Article 12B paragraph (1) is not applicable, if
- the recipient reports the received gratification to the Corruption Eradication Commission; and
- upon the consideration of Corruption Eradication Commission in accordance to the prevailing law and regulation, the report can be accepted and processed.”
The next wave of anti-corruption enforcement through criminalization of private commercial bribery is an agenda that must be applauded. However, in view of its potential overarching reach, unless it is handled with great prudency and fairness, a fatal situation could be created where the guilty is found to be acquitted and the innocent incriminated.
