Chief Justice Suhartoyo with Constitutional Justices Enny Nurbaningsih and Daniel Yusmic P. Foekh at a judicial review hearing of the Anti-Corruption Law, Thursday (11/28/2024). Photo by MKRI/Panji.
JAKARTA (MKRI) — Former executive director of PT Merpati Nusantara Airlines (PT MNA) Hotasi D.P. Nababan has filed a judicial review petition of Article 2 paragraph (1) and Article 3 of Law No. 31 of 1999 on the Eradication of the Criminal Acts of Corruption in conjunction with Law No. 20 of 2001 on the Amendment to Law No. 31 of 1999. The Petitioner of case No. 161/PUU-XXII/2024 claimed that his constitutional rights had been factually violated due to the enforcement of the unclear and lenient catch-all articles.
“I served four years in prison. The material loss is huge. My future is difficult due to a case where another party’s actions harmed PT Merpati,” he said at the preliminary hearing on Thursday, November 28, 2024.
Article 2 paragraph (1) of the Anti-Corruption Law reads, “Anyone unlawfully enriching himself and/or other persons or a corporation in such a way as to be detrimental to the finances of the state or the economy of the state shall be liable to life in prison, or a prison term of not less than 4 (four) years and not exceeding 20 (twenty) years and a fine of not less than Rp200,000,000 (two hundred million rupiah) and not exceeding Rp1,000,000,000 (one billion rupiah).” Article 3 reads, “Anyone with the intention of enriching himself or other persons or a corporation, abusing the authority, the facilities or other means at their disposal due to rank or position in such a way that is detrimental to the finances of the state or the economy of the state, shall be liable to life imprisonment or a prison term of not less than 1 (one) year and not exceeding 20 (twenty) years and/or a fine of not less than Rp50,000,000 (fifty million rupiah) and not exceeding Rp1,000,000,000 (one billion rupiah).”
The Petitioner was a defendant in a corruption case and, after trials, was acquitted by the anti-corruption court in 2013. However, a cassation decision in 2014/2015 declared him guilty of corruption on the primary charge of Article 2 paragraph (1) in conjunction with Article 18 of the Anti-Corruption Law in conjunction with Article 55 paragraph (1) point 1 of the Criminal Code (KUHP), so he was sentenced to four years and punished with a fine of Rp200,000,000.
He claimed that it had been proven that he had run the state-owned company as director in good faith and there was no mens rea or malicious intent to harm state finances. He alleged that the legal application of these articles has raised problems because Article 2 and Article 3 of the Anti-Corruption Law had been used to criminalize individuals relating to state losses when in fact, the financial or economic losses of the state that had arisen were not caused by his actions.
The Petitioner said evidence for the case was only drawn from separate and incompatible facts in such a way as to show the fulfillment of the elements in Article 2 paragraph (1) of the Anti-Corruption Law and that the perpetrator’s actions were interpreted in very broadly. He argued that Article 2 paragraph (1) of the Anti-Corruption Law must explicitly state intent, so it must read “every person with the intention....”
Article 28 of the United Nations Convention Against Corruption (UNCAC), which has been ratified in Indonesia through Law No. 7 of 2006 on the Ratification of UNCAC, 2003 states: “Knowledge, intent or purpose required as an element of an offence established in accordance with this Convention may be inferred from objective factual circumstances.” As such, a crime cannot be inferred from assumptions, but from objective facts that prove or show the correlation of relevant events, so that it can be concluded that the perpetrator intended for the consequences of the offense.
As Article 2 paragraph (1) of the Anti-Corruption Law does not mention the intent of harming state finances or economy, the Petitioner had been convicted even though it could not be proven that he had intentionally/with malicious intent harmed the state finances or economy and benefited. The cooperation he made was purely a business decision to save PT MNA’s finances, done in good faith in accordance with the procedures and principles of the business judgement rules (BJR), without conflicts of interest or kick-backs.
“The formulation of Article 2 paragraph (1) of the Anti-Corruption Law does not mention the form of culpability, namely intention or negligence, whose elements must be proven. It has made the formulation of this article contrary to clear law (lex certa) and the formulation of laws that must be interpreted strictly without any analogies (lex stricta). This has made Article 2 paragraph (1) of the Anti-Corruption Law contrary to Article 1 paragraph (3) of the 1945 Constitution,” said the Petitioner’s legal counsel, Bahren Dalimunthe.
In his petitums, the Petitioner requested the Court to declare the phrase “unlawfully enriching himself and/or other persons or a corporation in such a way as to be detrimental to the finances of the state” in Article 2 paragraph (1) of the Anti-Corruption Law unconstitutional and not legally binding if not interpreted as, “with the intention of harming state finances and enriching oneself or other persons or a corporation by unlawful means.” He also requested the Court to declare the phrase “with the aim of benefiting oneself or other persons or a corporation, abusing the authority, facilities, or other means at their disposal due to rank or position to the detriment of state finances or state economy” in Article 3 of the Anti-Corruption Law unconstitutional and not legally binding if not interpreted, “with the intention of harming state finances or state economy and benefiting oneself or other persons or a corporation by abusing the authority, facilities, or other means at their disposal due to rank or position.”
Justices’ Advice
The hearing was presided over by Chief Justice Suhartoyo (panel chair) and Constitutional Justices Enny Nurbaningsih and Daniel Yusmic P. Foekh. Justice Enny stated that the Petitioner would need to emphasize the Constitutional Court Decision No. 25/PUU-XIV/2016, where the Court had granted part of the petition and ruled that the word “can” in Article 2 paragraph (1) and Article 3 of the Anti-Corruption Law unconstitutional and not legally binding.
“Why should you stress it here? Because if connected to your petitums, there is inconsistency. You return the word “can” in the petitums. Please clarify this,” she said.
Meanwhile, Justice Foekh reminded the Petitioner that the articles being petitioned are lex specialis. He also asked them to reiterate his argument to convince the Court.
Before adjourning the session, Chief Justice Suhartoyo announced that the Petitioner would have 14 days to revise the petition, the softcopy or hardcopy of which is to be submitted by Wednesday, December 11, 2024.
Author : Mimi Kartika
Editor : N. Rosi
PR : Fauzan F.
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.
Thursday, November 28, 2024 | 15:43 WIB 60