Constitutional Court Inspector Budi Achmad Djohari at the socialization of anticorruption culture for all staff, Wednesday (23/6/2021) in the Constitutional Court. Photo by Humas MK/Ifa.
Thursday, June 24, 2021 | 07:21 WIB
JAKARTA, Public Relations—A socialization on anticorruption culture was organized for all staff of the Constitutional Court (MK) on Wednesday afternoon, June 23, 2021. Head of the Task Force for Regulations, Planning and Development and Application of Anticorruption Prevention Network of the Directorate of Gratification and Public Services of the Corruption Eradication Commission Dion Hardika Sumarto delivered a presentation on gratuity control, including its regulations and reporting procedure.
Dion quoted Article 12B of Law No. 20 of 2001 on the Eradication of the Criminal Acts of Corruption, which is often dubbed the article on gratuity. Paragraph (1) reads, “Any gratification for a civil servant or state apparatus shall be considered as a bribe when it has something to do with his/her position and is against his/her obligation or task, with the provision that: a. when the gratification amounts to Rp10.000.000 (ten million rupiahs) or more, it is the recipient of the gratification who shall prove that the gratification is not a bribe; b. when the gratification amounts to less than Rp10.000.000 (ten million rupiahs), it is the public prosecutor who shall prove that the gratification is a bribe.”
Paragraph (2) reads, “A civil servant or state apparatus who is found guilty of the criminal offense as referred to in paragraph (1) shall be sentenced to life imprisonment or a minimum of 4 (four) year’s imprisonment and a maximum of 20 (twenty) year’s imprisonment and be fined a minimum of Rp200.000.000 (two hundred million rupiahs) and a maximum of Rp1.000.000.000 (one billion rupiahs).”
He also explains Article 12C. Paragraph (1) reads, “The provisions as referred to in Article 12B paragraph (1) shall not be valid if the recipient reports the gratification to the Corruption Eradication Commission.” Paragraph (2) reads, “The recipient of gratification shall convey the report as referred to in paragraph (1) no later than 30 (thirty) working days after the gratification has been received.” Paragraph (3) reads, “The Corruption Eradication Commission within a period of 30 (thirty) working days at the latest after the receipt date of the report shall decide whether the gratification belongs to the recipient or the state.” Paragraph (4) reads, “The procedures for conveying the report as referred to in paragraph (2) and for determining, the status of the gratification as referred to in paragraph (3) shall be laid down in Law on the Corruption Eradication Commission.”
“The power of the articles on gratuity is the emphasis on the reverse burden of proof. Therefore, old gifts that were undetected are then blown up. They can be charged with the articles on gratuity,” he said alongside Constitutional Court Inspector Budi Achmad Djohari.
The articles on gratuity were adopted from Article 42 paragraph (2) of Malaysia’s Anti-Corruption Act, 1997 (ACA 1997). When it is proved that a person charged with an offence under section section 161, 162, 163 or 164 of the Penal Code of Malaysia has accepted or agreed to accept, or obtained or attempted to obtain any gratuity, such person shall be presumed to have done so as a motive or reward for the matters set out in the particulars of the offence, unless the contrary is proved.
Dion then moved on to explaining the approaches to gratuity--the repressive and preventive corruption article approaches—and the mechanism to report gratuity. “The reporting mechanism can facilitate those who have the good intention to preserve their integrity when they receive any gratuity. They might be worried that it could threaten their safety or their career. So, this mechanism for reporting gratuity was provided,” he said.
Gifts to Bribes
Dion then explained that reasonable gifts can be given because of good relationships, independent of positions. However, they could become gratuity when the recipients are civil servants or state administrators. They can be illegal when concerning positions and affect one’s duties and responsibilities. Gratuity could become bribes if there is a transaction and convergence of interest.
He also explained that preventive measures can be taken through educating all staff on reporting procedure and implementing an anti-gratuity mechanism in the institution. In addition, reports of gratuity can also be a management tool in assessing risk and identifying vulnerable points. The institution can work alongside the Gratuity Control Unit (UPG) in implementing anti-gratuity culture through assessments.
Dion also explained what one must do when receiving gratuity. If one cannot reject it outright, they are to report it to the authorities right away. They may consult with their institution’s UPG. He also said that reasonable gifts that are commonplace in terms of type and value may not be gratuity when they are not in violation of statutory regulations. Such gifts are common expressions of hospitality in society.
Not a New Issue
Next, Dion said that the notion of conflict of interest is not a new issue. The KPK has issued many procedures on controlling conflict of interest. He mentioned a story of (first vice president) Bung Hatta, who kept a pay cut from his wife, despite its negative impact on their family, as it was an issue of the state. He also talked about the famous national police chief Hoegeng, who rejected a furnished house from a businessman, because he was aware of what it might entail. “Conflicts of interest can emerge naturally. However, it must be [regulated] through a system so that we don’t prioritize personal interest but common interest,” he said.
Dion then talked about the types of conflict of interest that might occur. “There is conflict of potential interest, where [one] holds an office or an authority and in the future [one] can be influenced by personal or group interest when carrying out duties,” he said. He also explained actual conflicts of interest and perceived conflict of interest.
Dion concluded his presentation by explaining the whistleblowing system (WBS). He said that the definition of WBS is different across institutions. It is mostly defined as an application, while others define it as a reporting medium. It is also often defined as a reporting and mitigation mechanism, or as a reporting channel.
“[The KPK] defines WBS as a procedure to receive and manage information on alleged violations that are managed with professionalism, transparency, and accountability, with an emphasis on confidentiality. So, it is not just reporting. If reports are not managed professionally and not followed up on, it is not WBS,” he stressed. Dion also said that WBS prioritizes confidentially, must be easy to access, managed professionally, and be monitored and evaluated routinely.
Writer : Nano Tresna Arfana
Editor : Lulu Anjarsari P.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/24/2021 14:49 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Thursday, June 24, 2021 | 07:21 WIB 331