Court Dismisses Petition on Anti-Corruption Law by Registrar of Tangerang District Court

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Chief Justice Anwar Usman reading out the decision for case No. 49/PUU-XIX/2021 the judicial review petition on the Law on the Eradication of the Criminal Acts of Corruption, Wednesday (11/24/2021). Photo by Humas MK/Ilham W.M.

Wednesday, November 24, 2021 | 19:37 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) ruled to dismiss a petition by Tuti Atika in the decision No. 49/PUU-XIX/2021 on the judicial review of Law No. 20 of 2001 on the Amendment to Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption and the Criminal Code (KUHP).

“[The Court] adjudicated to declare the Petitioner’s petition inadmissible,” said Chief Constitutional Justice Anwar Usman along with the other eight constitutional justices at a virtual ruling hearing on Wednesday, November 24, 2021 from the plenary courtroom.

Reading out the Court’s considerations, Constitutional Justice Daniel Yusmic P. Foekh said, without the intention to adjudicate on the concrete case that the Petitioner was involved in or judging the judge’s decision on the case, Article 12 of the Anti-Corruption Law must be read from letter a to l as a unity, regarding the criminal sanctions that can be imposed on the perpetrator, giver, or recipient of gratuity. As state administrators, judges are also prohibited from receiving any gift or promise that can influence their decision on a case.

This is in line with the spirit of corruption eradication. Any public servants or state administrators who do not intend to or are forced to receive gratuity are not deemed to have received it as long as they report it to the Corruption Eradication Commission (KPK) no later than 30 days since they receive it, based on Article 12C paragraphs (1) and (2) of the Anti-Corruption Law.

Justice Foekh added that if the Petitioner really had received money from a counsel who was litigating at the Tangerang District Court, she would have been obligated to report it in order to avoid sanction.

In relation to the constitutionality of Article 55 paragraph (1) of the KUHP, the Court believes that, according to Article 15 of Law No. 31 of 1999 as amended by Law No. 20 of 2001, everyone who abet a perpetrator of a criminal act of corruption is subject to the same punishment as the perpetrator.

The provision applies to anyone outside of the territory of Indonesia who abets a perpetrator of a criminal act of corruption (vide Article 16 of Law No. 31 of 1999). Article 55 paragraph (1) of the KUHP stipulates three types of persons that can be punished for criminal acts: (1) those who perpetrate, (2) those cause others to perpetrate, and (3) those who take part in the execution of the act. This is called participation/involvement (deelneming) and the phrase “take part” means committing the criminal act together. There is a condition that the act is committed by at least two persons: a perpetrator (pleger) and an accomplice (medepleger).

Both may be subjected to the same punishment if they both take part in the criminal act, not merely making preparations or assisting. Anyone who assist a perpetrator is not an accomplice (medepleger), but is subject to punishment as an accessory (medeplichtigheid). Therefore, if several people are involved in the criminal act, their participation in it may be different.

Justice Foekh added that Articles 55 and 56 of the KUHP determine the sanctions for participation in criminal acts. First, any person who is an offender (dader), either as a perpetrator (pleger) or someone who cause others to perpetrate (doenpleger), an accomplice (medepleger), or someone who gives or promise something (uitloker) can be subjected to the same criminal punishment as the offender (dader) according to the provisions of the article that is violated (full responsibility).

Also read: Ex-Deputy Registrar Sentenced for Corruption Challenges Anti-Corruption Law and Criminal Code

Secondly, an accessory (medeplichtigheid) can only be subjected to the maximum punishment reduced by one-third in accordance with the provisions of the article that is violated (partial responsibility). Therefore, it is important to elaborate on the perpetrator’s participation as it determines their responsibility and criminal sanction.

Also read: Ex-Deputy Registrar Sentenced for Corruption Revises Petition on Anti-Corruption Law and Criminal Code 

Superior’s Order

The petition was filed by Tuti Atika, a former deputy registrar at the Tangerang District Court. She challenges Article 11 and Article 12 letter c of the Anti-Corruption Law, as well as Article 55 paragraph (1) point 1 and Article 64 paragraph (1) of the KUHP against Article 27 paragraph (1), Article 28D paragraph (1), and Article 28I paragraph (2) 1945 Constitution.

“We feel that there has been a mistake in the implementation of the law on the Anti-Corruption Law. Article 11 and Article 12C, because, upon observation, are designated for officials or judge officials, authorized and legitimate officials. Meanwhile, my wife, the Petitioner, was a registrar, an assistant in working relations, an assistant to the judge. Structurally she was indeed under the chief registrar, but her work was as an assistant to the judge. So, automatically, she was an assistant who did not have the capacity to decide on a case,” said Akhmad, the Petitioner’s counsel and husband, at the preliminary hearing on Monday, October 4, 2021.

Akhmad revealed that the Petitioner was only working under an unfair judge, starting from prosecution until ruling. As such, she did not have the capacity to decide on a case.

In the petition, the Petitioner explained that she was a deputy registrar at the Tangerang District Court. On August 28, 2018 she was sentenced to four years in prison and a fine of Rp200,000,000 based on the decision of the Anti-Corruption Court at the Serang District Court. If the fine was not paid, it is substituted with a one-month detention. On November 12, 2018, the Banten High Court ruled to support the ruling of the Anti-Corruption Court at the Serang District Court. The Petitioner then appealed to the Supreme Court through the Anti-Corruption Court at the Serang District Court, which was rejected.

The KPK prosecutor charged the Petitioner with a violation of Article 11 and Article 12 letter c of the Anti-Corruption Law. The fact is that the Petitioner was not a ‘judge’ but merely a civil servant ‘deputy registrar,’ so she was not supposed to qualify as a person who takes part in a crime as referred to in Article 55 paragraph (1) of the KUHP. Anyone who deliberately aid in committing a crime, or an accomplice, should be charged with Article 56, not 55.

Because the basis of punishment in criminal law in Indonesia is the indictment contained in the indictment of the Prosecutor/Public Prosecutor, a person cannot be found guilty and sentenced for an act that they are not charged with. Since the Petitioner was not charged with Article 56 of the KUHP, according to law she should be acquitted of the indictment. 

Writer           : Utami Argawati
Editor          : Nur R.
PR               : Tiara Agustina
Translator     : Yuniar Widiastuti (NL)

Translation uploaded on 11/25/2021 10:30 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.