Death Penalty a Deterrent Effect for Corruptors
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A ruling hearing of the material judicial review of Law on the Eradication of Criminal Acts of Corruption, Wednesday (1/31/2024). Photo by MKRI/Ifa.


JAKARTA (MKRI) — The Constitutional Court (MK) rejected the entire petition in case No. 157/PUU-XXI/2023 on the material judicial review of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption as amended by Law No. 20 of 2001 on the Amendment to Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption (Anti-Corruption Law) and Law No. 12 of 2011 on Lawmaking as amended by Law No. 13 of 2022 on the second amendment to Law No. 12 of 2011 on Lawmaking.

“[The Court] rejected the Petitioners’ petition in its entirety,” said Chief Justice Suhartoyo at the ruling hearing on Wednesday, January 31, 2024 in the plenary courtroom.

In its legal considerations, delivered by Constitutional Justice Daniel Yusmic P. Foekh, the Court argued that the Petitioners’ argument could not be separated from the nature of corruption acts, which have been categorized as extraordinary crimes, meaning that they can be compared to other extraordinary criminal offenses, such as terrorism, narcotics abuse, or severe environmental damage that has very serious consequences.

More criminal sanctions can be added to Article 2 paragraph (1) of the Anti-Corruption Law, not only life sentence but also death penalty. The Court felt the need to stress that corruption acts are not only ordinary crimes, but also specific criminal offenses with different characteristics in terms of the institutions authorized to investigate, prosecute, and adjudicate as well as procedural law that set them apart from general crimes.

As such, Justice Foekh added, if the Court accommodated the Petitioners’ wish, there would be a new issue since the criminal acts that the Petitioners referred to as sentence aggravating factor—i.e. collusion, nepotism, murder, etc.—are general crimes with different characteristics, including investigation, prosecution, and trial, from criminal acts of corruption as regulated in Article 2 paragraph (1) of the Anti-Corruption Law. The new issue is how specific criminal offenses can be investigated, prosecuted, and tried along with general crimes, as both have different aspects, such as the procedural law (formal law) used.

On the other hand, the Court understands the Petitioners’ wish to participate in preventing and eradicating criminal acts of corruption, as mandated by Articles 41 and 42 of the Anti-Corruption Law. They believed Article 2 paragraph (1) of the Anti-Corruption Law, which currently does not include death penalty, would not deter perpetrators. However, since their wish concerned formal matters, i.e. prosecution procedure or other aspects, any violation would lead to uncertainty and injustice for both the perpetrators and victims of corruption, including the wider community.

“Based on the aforementioned legal considerations, the Court is of the opinion that the Petitioners’ petitum requesting that Article 2 paragraph (1) of the Anti-Corruption Law be unconstitutional if it does not include death penalty is legally groundless,” Justice Foekh read out.

The Court believes the phrase “death penalty” cannot be included in Article 2 paragraph (1) of the Anti-Corruption Law. Thus, the Petitioners’ petitum was irrelevant to consider, given that death penalty for perpetrators of corruption is necessary, only with “certain conditions.” Death penalty is still the top choice of effective deterrent.

A contrario, if said article was declared unconstitutional and not legally binding, the Anti-Corruption Law would lose the phrase “death penalty” for criminal acts of corruption. Thus, on the perpetrators of such crimes, even when committed during “certain conditions,” death penalty can no longer be imposed.

On the other hand, doctrinally, death sentence is not prohibited since it is necessary to prevent extraordinary crimes for the sake of the interests of wider community. Not to mention, the fundamental reference for its implementation is Article 6 paragraph (1) of the International Covenant on Civil and Political Rights (ICCPR), which emphasizes that the right to live must be protected by law and cannot be revoked arbitrarily. This is ratified in Law No. 12 of 2005 on the ratification of ICCPR.

Article 6 paragraph (1) of the ICCPR reads, “In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.”

As such, death penalty cannot be imposed without respect for human rights as guaranteed by Article 28J paragraph (1) of the 1945 Constitution, and in the context of the a quo case can only be applied exceptionally to extraordinary criminal offenses. Based on that, the Petitioners’ petitum was legally groundless.

Regardless of whether the Constitutional Court decision can be included in Article 15 paragraph (1) of the Lawmaking Law or not, the a quo case substantially concerns criminal policy, so it cannot be implemented. Based on that legal consideration, the Petitioners’ challenge against Article 15 paragraph (1) of the Lawmaking Law was legally groundless.

“Considering that, based on the aforementioned legal considerations, Article 2 paragraph (1), Article 2 paragraph (2) of the Anti-Corruption Law as well as Article 15 paragraph (1) letter a of the Lawmaking Law did not violate guarantees of self-protection, a sense of security, the right to life, the fulfillment and respect of human rights, national defense, and security as guaranteed in the 1945 Constitution, not as argued by the Petitioners. Thus, the Petitioners’ arguments are unreasonable according to law in their entirety,” Justice Foekh declared.

Also read:

Petitioners: Corruptors Must Be Sentenced to Death

Petitioners Revise Petition on Death Penalty for Corruptors in Anti-Corruption Law

The case No. 157/PUU-XXI/2023 was filed by law students Michael Munthe (Atma Jaya University of Yogyakarta) as well as Teja Maulana Hakim and Otniel Raja Maruli Situmorang (International University of Batam).

In the petitum, the Petitioners requested that the Court grant the petition and declare Article 2 paragraph (1), Article 2 paragraph (2), and Article 3 of the Anti-Corruption Law as well as Article 15 paragraph (1) letter a of the Lawmaking Law as amended by Law No. 13 of 2022 unconstitutional and not legally binding following the interpretation as they requested.

Author       : Mimi Kartika
Editor        : Nur R.
PR            : Tiara Agustina
Translator  : Yuniar Widiastuti (NL)

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.


Wednesday, January 31, 2024 | 17:32 WIB 114