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Bulletin of Indonesian Economic Studies
ISSN: 0007-4918 (Print) 1472-7234 (Online) Journal homepage: http://www.tandfonline.com/loi/cbie20
‘Unlawfulness’ and corruption under Indonesian
law
Simon Butt
To cite this article: Simon Butt (2009) ‘Unlawfulness’ and corruption under Indonesian law, Bulletin of Indonesian Economic Studies, 45:2, 179-198
To link to this article: http://dx.doi.org/10.1080/00074910903040328
Published online: 24 Jul 2009.
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ISSN 0007-4918 print/ISSN 1472-7234 online/09/020179-20 © 2009 Indonesia Project ANU DOI: 10.1080/00074910903040328
‘UNLAWFULNESS’ AND CORRUPTION
UNDER INDONESIAN LAW
Simon Butt
University of Sydney
Indonesia’s Anti-Corruption Commission and Anti-Corruption Court have a con-viction rate of 100% in the 100 or so cases processed thus far. Some of those convict-ed for corruption have successfully challengconvict-ed the constitutionality of Indonesia’s anti-corruption framework in the Constitutional Court. This article discusses the impact of one Constitutional Court decision, which removed some fl exibility from
the defi nition of corruption under the Corruption Eradication Law. That fl exibility
had allowed defendants to be convicted for corruption if they had caused loss to the state and enriched another party and, in so doing, had breached ‘community stand-ards’. The Constitutional Court decided that ‘community standards’ was too vague and uncertain a notion to ground a conviction for corruption. This article shows that the Supreme Court has, deliberately and explicitly, circumvented the Consti-tutional Court’s decision. That may have strengthened Indonesia’s anti-corruption drive, but it has done so at the expense of the rule of law.
Indonesia’s Anti-Corruption drive has gained real traction. The Anti-Corruption Commission (Komisi Pemberantasan Korupsi, or KPK) and Anti-Corruption Court (Pengadilan Tindak Pidana Korupsi, or Tipikor Court), both established in 2003 and reputedly corruption-free, have been making steady progress in the investigation, prosecution and conviction of those involved in corruption. The KPK has successfully investigated and prosecuted a variety of offi cials, ranging
from mid-level prosecutors and senior civil servants to provincial governors and even national parliamentarians. The Anti-Corruption Court, part of Indonesia’s general court system but with three non-career judges on each fi ve-member panel,
had, at thetime of writing, heard over 100 corruption cases and had maintained a 100% conviction rate (ICW 2008). These are signifi cant achievements in a country
that has traditionally been considered to have some of the world’s most corrupt institutions – among them those institutions entrusted with enforcing the law.1
At the time of writing, however, the future success of this drive appeared to be in jeopardy, largely because decisions of Indonesia’s Constitutional Court have cast doubt upon, and even invalidated, aspects of the country’s purpose-built legal framework for handling corruption cases.
1 See Transparency International’s annual Corruption Perceptions Index at <http://www. transparency.org>.
Under the banner of upholding the Constitution, the Constitutional Court has thrown three legal obstacles across the path of the KPK and the Tipikor Court. In one case, the Constitutional Court decided that the Tipikor Court itself was established unconstitutionally.2 However, it allowed the Tipikor Court to
con-tinue operating, giving the Indonesian national parliament three years to enact a new statute to remedy the constitutional defect (Fenwick 2008). The deadline for the enactment of this statute is December 2009 and at thetime of writing the prospects of enactment appeared slim. If, as seems likely, no statute is enacted, then the Tipikor Court should disband and refuse to hear cases, with the result that Indonesia’s general courts will regain exclusive jurisdiction to decide corrup-tion cases. There is a widely-held percepcorrup-tion that Indonesia’s general courts have failed to hold offi cials accountable for corruption, largely because those general
courts are themselves corrupt (ICW 2008). If the Tipikor Court closes down, then, it is feared that those who have committed acts of corruption will enjoy effective legal immunity for their crimes because they will be able to bribe their way out of trouble.
The KPK, too, has not been immune from decisions of the Constitutional Court. In another case, the Constitutional Court suggested that constitutional prohibi-tions on retrospective laws prevent the KPK from investigating and prosecuting alleged offences that occurred before the statute establishing the KPK was enacted on 27 December 2002.3 The primary ramifi cation of this decision appears to be
that these pre-KPK corruption cases should be handled by the law enforcement institutions operating at the time the alleged offences were committed. These institutions are Indonesia’s ordinary police and prosecutors, themselves, like the general judiciary, widely considered corrupt and, therefore, largely ineffective in handling corruption cases. This apparent limitation upon the KPK’s jurisdiction has not yet, to the knowledge of the author, resulted in any corruption case being dropped or thrown out of court, although it has been accepted in minority deci-sions in some cases.4 Nor has it stifl ed the work of the KPK, which seems as busy
as ever. It does, however, loom large amid calls for the KPK to investigate and prosecute allegations of enormous-scale corruption committed during the New Order and early reformasi periods by former president Soeharto, his family and his cronies.
The present article focuses on a case in which the Constitutional Court invali-dated part of the Elucidation to Indonesia’s Corruption Eradication Law.5 The
2 Constitutional Court Decision 012-016-019/PUU-IV/2006. 3 Constitutional Court Decision 069/PUU/II/2004: 70.
4 For example, in the corruption case involving a former Aceh Governor, Abdullah Puteh, a two-judge minority of the fi rst instance TipikorCourt held, on the basis of the
Constitu-tional Court decision, that Puteh should have been released because the KPK lacked juris-diction to prosecute him (MTI 2006: 45; Hukumonline 2005a). A preliminary issue, still unre-solved, however, is whether, formally, the Constitutional Court opinion, strictly incidental to its fi nal holding in that case, is binding (Sjamsuddin case: 143 [Supreme Court Decision
No 1847/Pid/2006, herein referred to as the Sjamsuddin case, is one of fi ve Supreme Court
cases discussed below]; Hukumonline 2006d).
5 Constitutional Court Decision 003/PUU-IV/2006, herein referred to as the Djatmiko case. The Elucidation (Penjelasan) is the explanatory memorandum that accompanies most
case was brought by Dawud Djatmiko, who had been convicted of corruption in the fi rst instance Jakarta Tipikor Court, in the Jakarta Tipikor Appeal Court and
also on appeal to the Supreme Court for his role in the acquisition of land for a toll road project. He challenged the constitutionality of several provisions of the Corruption Eradication Law6 under which he had been investigated, prosecuted
and convicted. One of the provisions he disputed was the Elucidation to article 2(1) of the Law. Article 2(1) prohibits people, by means of acts that break the law
(my emphasis), from enriching themselves or others in ways that could damage state fi nances or the state economy. According to the Elucidation to article 2(1), ‘an
act that does not breach written laws may nevertheless be an act that breaks the law’. Such an act can, in the words of the Elucidation, merely fail to ‘accord with the feeling of justice or social norms in the community’.
Much of the success of the KPK and the Tipikor Court to date is attributable to the fl exibility built in to article 2(1) and its Elucidation. Two fl exibilities in
particu-lar are said to make prosecution of corruption cases easier and convictions more likely.
The fi rst fl exibility is that, by reference to article 2(1), Indonesian courts have
held that ‘unlawfulness’ refers to a breach of virtually any law or rule. The law breached certainly need not be a criminal law. As the RusadiKantaprawira case, discussed below, shows, even a breach of non-binding administrative guidelines will suffi ce.
The second fl exibility – the focus of the present article – is neatly summarised
by Indonesian academic Darwan Prinst (2002: 29–30), who explains that under article 2(1) an act can constitute corruption even if it is not ‘prohibited in a law’.
[It] is unlawful if the act is considered reprehensible because it does not accord with the sense of justice or the norms of social life in the community, for example, if it confl icts with custom, morals, religious values and the like. The act is, therefore,
punishable.
In other words prosecutors need only show, and judges need only accept, that the defendant acted in breach of community standards, and that the act resulted in a benefi t to a party (not necessarily the accused) and caused some fi nancial loss to
the state. The Tipikor Court has not, to the knowledge of the author, given much, if any, consideration in its decisions to what these community standards are. Rather, it has almost routinely found that these standards have been breached in the cases it has heard. The Court seems to regard loss to the state as reprehensible by these standards, irrespective of motive or other considerations.
The success of the KPK and Tipikor Court has led to speculation that their work is deterring those who would otherwise have considered engaging in corruption. However, it is also claimed that government offi cials are afraid to perform their
functions – particularly in procurement of goods and services – fearing that they will inadvertently breach a rule of procedure, or make a mistake, which causes
Indonesian statutes and government regulations. It is not formally part of the law itself, but is often determinative in the interpretation of the law.
6 Law 31/1999 on Corruption Eradication, as amended by Law 20/2001 on Corruption Eradication.
fi nancial loss to the state, thereby resulting in a KPK investigation (Hotland and
Taufi qurrahman 2008). This is a signifi cant cause for concern to which I return
below.
In its decision in the Dawud Djatmiko case of 2006, the Constitutional Court attempted to remove some of the fl exibility of article 2(1) that underlay many of
these concerns. The Court declared that the defi nition of ‘an act that breaks the
law’ contained in the Elucidation to article 2(1) was too uncertain and, therefore, contradicted the right to legal certainty provided under article 28D of the Con-stitution.
Quite logically, many Indonesian lawyers presumed that this decision would make corruption more diffi cult to prove – which, in turn, would make the Tipikor
Court’s conviction rate impossible to sustain. The present article shows, how-ever, that these concerns have not been borne out in practice, largely because the Supreme Court has employed deliberate legal strategies to avoid the effect of the Constitutional Court decision. Using techniques of statutory interpretation, the Supreme Court has re-established the defi nition of ‘unlawfulness’ contained in
the Elucidation to article 2(1).
I begin by explaining the concept of material unlawfulness, before summaris-ing and analyssummaris-ing the Constitutional Court’s decision in the Dawud Djatmiko case. I then discuss the Supreme Court’s response in fi ve cases in which it referred to
the Djatmiko case, and offer a critique of the Supreme Court’s legal arguments in those fi ve cases.
MATERIAL UNLAWFULNESS
The concept of an ‘act that breaks the law’ (perbuatan melawan hukum), mentioned in article 2(1), is used in a number of different ways in Indonesian laws, some of them discussed below. It has several translations, including ‘unlawful act’, ‘wrongful act’, ‘[act] without legal right or authority’ (Remmelink 2003: 187) and ‘substantive unlawfulness’ (Elders and Woretshofer 1992: 220).7 It was, like many
parts of Indonesian law, inherited from the Dutch.
This concept is well known within the Indonesian legal system and in many civil law countries. It is used as the legal basis for the adjudication of many types of non-criminal cases, including torts.8 In criminal cases, the concept has a number
of uses (Hiariej 2006). The fi rst is to refer to an act that satisfi es all of the elements
of a crime. This is often referred to as ‘formal unlawfulness’ or ‘unlawfulness in the formal sense’ (perbuatan melawan hukum secara formil).
7 For convenience, this article uses ‘unlawful act’ or ‘unlawfulness’.
8 The present article limits itself to the application of the concept in criminal cases. For reasons of space, it does not consider its application in civil cases. It would, however, be remiss to introduce the concept without mentioning article 1365 of Indonesia’s Civil Code – the primary legal source of the concept in the non-criminal context. Article 1365 states that ‘a person who causes loss to another person by means of an unlawful act [my emphasis] must, because of his or her fault in causing loss, compensate that loss’.The famous 1919 Dutch Supreme Court (Hoge Raad) caseof Cohen–Lindenbaum is also pointed to in Dutch and Indonesian literature discussing ‘material unlawfulness’ in civil cases (see, for exam-ple, Koppen 1990; Vrey 2006).
The second use of this concept relates to the words ‘secara melawan hukum’ (lit-erally, ‘in a way that breaks the law’), which are contained in some provisions of the Indonesian Criminal Code and other criminal laws. In these provisions, unlawfulness constitutes an element (unsur)of the offence prohibited in that pro-vision. According to Remmelink (2003: 186), the concept is used in this way to exclude from culpability perpetrators who had a lawful excuse – that is, a legal right or authority – to perform the act which, absent the lawful right or authority, would have been a crime. For example, in article 333 of the Criminal Code, which prohibits interfering with another’s liberty, the inclusion of the words ‘without lawful excuse’ would prevent a police offi cer who legally arrests a suspect from
being charged with false imprisonment.
A third use of the concept is in respect of ‘material’ or ‘substantive’ unlawful-ness. To explain the difference between formal and material unlawfulness, Dutch and Indonesian scholars often refer to a famous 1933 Dutch Supreme Court (Hoge Raad) case. Elders and Woretshofer (1992: 220) explain the facts of the case as fol-lows:
... a veterinarian had cows moved from a meadow to a stable. As the veterinarian knew[,] there were at that moment some cows in the stable with hoof and mouth disease. Article 82 of the ‘Veewet’ [Law on Cattle] of those days forbad bringing cattle intentionally into a state of harm. The veterinarian did not deny the charge. He declared, ‘I did so because, from a veterinary point of view, it is better that cows stay dry and get infected with hoof and mouth disease, than that they give milk, in which case the disease spreads to the udders and causes other diseases. Dry stand-ing cows can better get through hoof and mouth disease …’.
Despite fi nding that the veterinarian had satisfi ed the elements of the crime, the
Court did not fi nd him guilty of an offence. Elders and Woretshofer (1992: 220)
describe the Court’s decision:
The Supreme Court recognises … that there can be situations in which an act fi ts
the words of a statute but should not be judged unlawful, because the statute is not really applicable. In other words, the action should not be seen as a criminal offence, although the words of the statute apply. We call that lawful excuse the absence of substantive unlawfulness. In this expression, ‘substantive’ (‘materieel’ in Dutch) is used as the opposite of ‘formal’. ‘Formal’ unlawfulness [refers to actions that] fi t the
words of the statute.
The leading academic coverage of ‘unlawful act’ in Indonesian criminal law is provided by Komariah E. Sapardjaja (2002), a professor of law and former Indo-nesian Supreme Court judge.9 She too distinguishes between formal and material
unlawful acts: an unlawful act in the formal sense occurs when the alleged perpe-trator’s act meets all the criteria of a crime proscribed in a written law; it occurs in its material sense when the act both meets the formal criteria of the crime and is
9 The following discussion draws largely from her work, because the author of the present article has an insuffi cient grasp of the Dutch language to survey relevant Dutch-language
literature. Despite extensive searching, no other detailed Indonesian-language accounts of the issue were available to the author.
inappropriate or reprehensible in light of community standards. In other words, material unlawfulness permits the consideration of mitigating circumstances not mentioned in the criminal law applied against the defendant, in order to excuse a formal breach of the law (Sapardjaja 2002: 25).
Sapardjaja explains that the principle developed in the 1933 veterinarian case was not applied in subsequent cases in Holland until the 1960s, when, according to Dutch scholar Th. W. van Veen, some Dutch lower courts began applying the concept of a materially unlawful act. Their decisions were, however, overturned by the Hoge Raad, which, despite its own 1933 decision, declared that apply-ing the concept involved judges assumapply-ing a legislative function (Sapardjaja 2002: 26–7), because they needed to ‘read into’ legislation mitigating or exculpatory circumstances that law makers would have included expressly if they had wanted judges to consider them.10
Sapardjaja (2002: 183) shows, however, that Indonesian courts – including the Supreme Court – have eschewed the Dutch disfavour for the material unlawful-ness concept, and have in fact applied it in criminal cases. For example, the Indo-nesian Supreme Court employed the material unlawfulness concept to excuse breaches of written laws in embezzlement cases between the mid-1960s and the late 1970s.11 Although the defendants had misappropriated funds, they were
excused because they could show that they used the money in good faith for the benefi t of a company, an institution or employees, and not for personal benefi t
(Sapardjaja 2002: 152, 183). In one such case, the Supreme Court declared:
An act can lose its unlawfulness not only by virtue of a statute, but also on the basis of the norms of justice or norms of unwritten law … [I]n this case for example, the state was not disadvantaged, the general good was served and the defendant him-self did not obtain any benefi t (Sapardjaja 2002: 137).
Sapardjaja (2002: 140, 191) discusses a case in which the defendant had bought a stolen motor cycle, but was excused after proving that he did not know the bike had been stolen;12 and a case in which an offi cial indicted for receiving an
rarium was acquitted because, even though prohibited by law, accepting hono-raria in similar circumstances had become a practice or custom accepted by the community.13 These cases, Sapardjaja emphasises, employ the concept of material
unlawfulness in a ‘negative’ way – that is, to negate culpability for a defendant who, strictly speaking, breaches the law.
Sapardjaja explains that the concept of material unlawfulness has been stretched further in Indonesia: it has also been employed in a ‘positive’ way. This manifesta-tion of material unlawfulness sees a person being convicted for doing something that is reprehensible according to community standards even if that act did not
10 This would appear to be consistent with the concern of judges in many civil law coun-tries to appear to give primacy to legislation and to avoid appearing to engage in blatant law-making or legal creativity (Lasser 2004; David and Brierley 1985; Dawson 1994). 11 Supreme Court Decision 42K/Kr/1966; Supreme Court Decision 97K/Kr/1973. 12 Supreme Court Decision 30K/Kr/1969.
13 Supreme Court Decision 43K/Kr/1973.
constitute a crime under a statute or other law at the time it was committed (Sapar-djaja 2002: 67, 210).
Use of material unlawfulness in the positive sense found its way into the 1971 Corruption Eradication Law. Article 1(a) declared that ‘whoever unlawfully ( den-gan melawan hukum) performs an act to enrich him/herself or another … which directly or indirectly damages the state’s fi nances or economy …’ has committed
the crime of corruption. The General Elucidation to this Law declared that ‘ mela-wan hukum’ includes both the formal and the material senses, so as to ‘make it easier to prove the culpable act’.
Sapardjaja identifi es the fi rst instance of the ‘positive’ application of material
unlawfulness as having occurred in a Supreme Court case decided in the early 1980s.14 The director of Bank Bumi Daya had given credit to a customer for a real
estate transaction, thereby contradicting written Indonesian central bank policy, which aimed to provide credit in sectors that would benefi t larger numbers of
people. The Supreme Court found that the defendant had done this in order to secure benefi ts for himself (Sapardjaja 2002: 197–8). The defendant had, however,
breached no criminal laws by providing this credit. He had breached only these central bank policy guidelines, which provided merely administrative penalties, issued by the central bank, for non-compliance. However, the Supreme Court brought his acts within the Corruption Eradication Law in two ways: fi rst, by
holding that, because his act breached Indonesian central bank policy, he lacked lawful authority to provide the credit, thereby making his act ‘unlawful’ (as cited in the Sjamsuddin case: 178); second, by declaring that ‘corruption is a materially unlawful act because it is an act that is inappropriate, reprehensible and offends the majority of the community, using general principles of law according to appro-priateness in the community as a yardstick’ (as cited in the Toemion case: 180).
The 1999 Corruption Eradication Law employs formal and material unlawful-ness within its general defi nition of corruption at article 2(1) but, unlike the 1971
Law, declares explicitly that positive material unlawfulness falls within its ambit. The Elucidation to article 2(1) stipulates that unlawfulness incorporates both for-mal and positive material unlawfulness. It was precisely this ‘positive’ material unlawfulness concept – contained and endorsed in article 2(1) of the 1999 Corrup-tion EradicaCorrup-tion Law and its ElucidaCorrup-tion – to which Djatmiko objected.
THE CONSTITUTIONAL COURT’S DECISION IN THE DJATMIKO CASE
The Constitutional Court found that the Elucidation to article 2(1) caused legal uncertainty, which is prohibited under the Constitution, and struck down the Elu-cidation to the extent that it referred to unlawfulness. The Court decided that the use of the concept of positive material unlawfulness in criminal cases was uncon-stitutional for two main reasons.
First, the concept breached the principle of legality, proclaimed in the opening paragraph of Indonesia’s Criminal Code (Djatmiko case: 74). Under this provision, a person cannot be convicted of a crime except on the basis of pre-existing written criminal law (perundang-undangan pidana yang telah ada). The Court rejected the
14 Supreme Court Decision 275K/Pid/1982.
establishment of criminal culpability on the basis of potentially previously undis-closed ‘community’ attitudes.
This is sound reasoning from the Constitutional Court. Using previously un articulated or undefi ned moral or community standards to dictate criminal
cul-pability is tantamount to applying a criminal law retrospectively. Allowing prose-cution and conviction on the basis of what might be vague community standards, rather than on the basis of written law, is fundamentally unfair because citizens might not be aware of those standards and, therefore, might unintentionally com-mit a crime. Of course, some might argue that because the standards forming the basis for the prosecution are ‘community’ standards, then the ‘offender’ will have due notice of them. But this is not a simple matter in Indonesia, with its numerous and diverse cultures and religious systems.
This leads to the second reason cited by the Court: that different communi-ties might have different views on what constitutes appropriate, moral and just behaviour, in effect making a particular act criminal in one part of Indonesia but not in another (Djatmiko case: 74). Again, this argument appears to refl ect rational
decision making. As is well known, Indonesia has great ethnic, linguistic, cultural and religious diversity. What is deemed acceptable in one place or among a par-ticular group might not be so deemed in other nearby places or among different groups.
Even identifying the precise content of a moral or community norm would be no easy task and would, it seems, make distortion of the norm possible. In this context, the concept might give free rein to police, prosecutors and judges to deter-mine the substance of the community standard and, therefore, to deterdeter-mine what actions constituted a breach of the standard and were hence criminally culpa-ble. In the hands of incompetent or unprofessional police, prosecutors or judges, such wide discretion might result in community standards being misidentifi ed. It
might also be misused to obtain easy convictions, as illustrated by the case studies discussed below.
The aftermath: Supreme Court response
The immediate presumption in Indonesian legal circles was that the Constitu-tional Court’s ruling would make securing convictions in corruption cases more diffi cult, because in order to bring the defendant’s alleged misdeed within the
ambit of article 2(1) of the Corruption Eradication Law, prosecutors would now need to prove that the defendant had breached a written law.
However, this concern has not been borne out in practice, as I will show by examining fi ve Supreme Court cases heard between August 2006 and July 2007
– soon after the Constitutional Court’s decision in the Djatmiko case. I have chosen to discuss these fi ve particular cases, all appeals from Jakarta’s Tipikor Courts, for
two reasons. First, all fi ve cases have in common the charge that the defendant
pro-cured goods or services on behalf of the government through the direct appoint-ment (penunjukan langsung) of the provider(s), in return for some form of kickback from the provider(s). Presidential Decree 80/2003 on Guidelines for the Procure-ment of GovernProcure-ment Goods and Services (the ‘2003 Presidential Decree’) suggests that procurement should, as a general principle, be by public tender, although, in ‘special’ or ‘particular’ circumstances, appointing one service provider might be permissible. Defendants in these cases were found to have breached article 2(1)
of the 1999 Corruption Eradication Law, engaging in formal unlawfulness by breaching the 2003 Presidential Decree and also engaging in positive material unlawfulness by breaching community standards of appropriateness. The second reason for choosing these cases is that, in its decisions, the Supreme Court referred specifi cally to the Djatmiko case, but deliberately and explicitly circumvented, if
not disregarded, the Constitutional Court’s decision in that case.
After briefl y describing the facts of each case and the penalties imposed by the fi rst instance and appeal courts, I describe how the Supreme Court addressed the
Djatmiko decision in all fi ve cases. I then return to one of the fi ve, the Kantaprawira
case, in more detail, because it demonstrates that the Constitutional Court’s con-cerns about positive material unlawfulness are well founded.
Three of these fi ve cases involved former members of Indonesia’s Electoral
Com-mission (Komisi Pemilihan Umum, or KPU) who were indicted for corruption in the procurement of goods and services for the 2004 national and local elections.15
In the fi rst, Nazaruddin Sjamsuddin, formerly head of the KPU and Professor of
Social and Political Studies at the University of Indonesia, was convicted of accept-ing $566,000 in kickbacks from an insurance company he appointed, in breach of the 2003 Presidential Decree, to provide accident insurance for people working on the elections (Saraswati 2005; Hukumonline 2005c). The Jakarta Tipikor Courts sen-tenced him to seven years in prison, fi ned him Rp 300 million, and ordered him
to repay approximately Rp 5 billion, but his prison term and repayment amount were reduced on appeal to the Supreme Court (Sjamsuddin case).16
The second case involved Rusadi Kantaprawira, a professor of politics at Pad-jajaran University, who was head of a KPU committee entrusted with ensuring the supply of approximately 1.2 million bottles of ink for use in the elections (Rukmantara 2005).17 Ink of particularly strong indelibility is used in Indonesia
to stain the fi ngers of people who have already voted, to prevent them from
vot-ing more than once. Kantaprawira was investigated and prosecuted by the KPK for appointing producers and importers to supply the ink in breach of the 2003 Presidential Decree. The fi rst instance Jakarta Tipikor Court found him guilty of
corruption. He received a four-year prison term and a fi ne of Rp 200 million, and
15 Other KPU offi cials were investigated and prosecuted by the KPK and convicted in the
TipikorCourt for receiving kickbacks from companies that ‘won’ procurement tenders, and some were found guilty of not following procedures in directly appointing suppliers. The KPU was thrust into the spotlight after one of its members, Mulyana W. Kusumah, was caught red-handed attempting to bribe an auditor from the national audit board (Badan Pemeriksa Keuangan, or BPK), allegedly to secure the ‘cover-up’ of irregularities in the KPU’s procurement processes (Witular 2005; Hotland 2005). A full-blown BPK audit of the KPU’s activities ensued, evidence from which was then used by the KPK in the successful prosecution of KPU members.
16 The Supreme Court held that the lower courts had failed to consider mitigating cir-cumstances, such as the success of the election; that the money was used to ‘facilitate’ the election and for the ‘welfare’ of other KPU members; and that the defendant lacked the management experience to run the KPU (Sjamsuddin case: 181)
17 ‘Rusadi Kantaprawira divonis empat tahun penjara [Rusadi Kantaprawira sentenced to six years in prison]’, Tempo Interaktif, 17/2/2006.
was ordered to repay Rp 1,382,367,515 to the state.18 The Jakarta Tipikor Appeal
Court and the Supreme Court upheld his imprisonment and fi ne, but absolved
him of repaying the money to the state, for reasons discussed below.19 Achmad
Rojadi, the defendant in the third case this article examines, was secretary of the ink procurement committee. He was convicted on grounds similar to those used in the Kantaprawira case, and received the same criminal punishments ( Hukum-online 2006c).20
The fourth and fi fth cases also involved breaches of the 2003 Presidential Decree.
The defendant in the fourth case was Theo Toemion, a former parliamentarian and head of the Investment Coordination Board (Badan Koordinasi Penanaman Modal). He was convicted of corruption for appointing a company he owned to run projects associated with Indonesian Investment Year 2003–04. He received a six-year prison term and a Rp 300 million fi ne, and was required to repay Rp 23
bil-lion to the state (Hukumonline 2006d; Dani 2005; Hukum online 2007).21 The
defend-ant in the fi fth case, Tirta Winata, was found guilty of conspiring with offi cials
from the fi sheries ministry to obtain a contract for the procurement of laboratory
equipment, through a rigged tender process, in return for kickbacks (Hermawan 2006). He received a six-year prison sentence and a fi ne of Rp 500 million, and was
required to repay Rp 2.3 billion (Winata case: 86).22
CUT AND PASTE RESPONSE?
In all fi ve cases, the Supreme Court dealt similarly with the issue of material
unlawfulness. Indeed, many passages in the cases seem to have been ‘cut and pasted’ from a common source, or from each other.
In the Toemion (p. 178), Winata (p. 82) and Rojadi (p. 94) cases, the Court began its treatment of ‘positive material unlawfulness’ with the following statement:
… it is not excessive for the Supreme Court to put forward its opinion about the meaning of ‘unlawful act’ as referred to in article 2(1) of Law 31/1999, after the is-suance of Constitutional Court Decision 003/PUU-IV/2006 of 25 July 2006, which declared the Elucidation to article 2(1) of Law 20/2001 and Law 31/1999 ‘to
con-fl ict with the 1945 Constitution and no longer to have legal binding force’. In this
case, the MA [Mahkamah Agung, Supreme Court] will continue to give meaning to ‘unlawful act’ as referred to in article 2(1) of Law 31/1999, in both its formal and material senses …
In the Sjamsuddin (p. 175) and Kantaprawira (p. 116) cases, the Court began with a similar passage:
18 Decision 10/Pid.B/TPK/2005/PN.JKT.PST, 17/2/2006.
19 Supreme Court Decision 2284/Pid/2006, herein referred to as the Kantaprawiracase. 20 Supreme Court Decision 2608 K/Pid/2006, herein referred to as the Rojadi case. 21 Supreme Court Decision 537K/Pid/2007, herein referred to as the Toemion case; ‘Pen-gadilan Tinggi Tipikor vonis Theo Toemion 6 tahun [Tipikor High Court sentences Theo Toemion to 6 years]’, Kompas, 16/11/2005.
22 Supreme Court Decision 1116 K/Pid/2007, herein referred to as the Winata case.
The [lower courts] did not erroneously apply the law … [T]he MA agrees with [the lower courts] continuing to interpret ‘unlawful act’ within the meaning of article 2(1) of Law 31/1999, in both its formal and material senses, even though in its Deci-sion of 25 July 2006, No. 003/PUU-IV/2006, the Constitutional Court declared that the Elucidation to article 2(1) of … Law 31/1999 confl icts with the 1945 Constitution
and no longer has binding legal force.
In all fi ve decisions, the Supreme Court then set out the reasons for this stance,
using identical wording, save for several minor editorial differences (Kantaprawira case: 116–17; Winata case: 82–3; Rojadi case: 94–5; Toemion case: 178–9; Sjamsuddin case: 176). For brevity, these reasons will be summarised rather than extracted. The Supreme Court declared that the Constitutional Court, by invalidating the Elucidation to article 2(1), had made unclear the meaning of ‘unlawful act’ in article 2(1). It further stated that the resulting uncertainty required it to engage in ‘discovery of the law’ (penemuan hukum) to clarify the meaning of ‘unlawful act’. The Supreme Court pointed to article 28(1) of Law 4/2004 on the Judiciary, which requires judges to ‘discover, follow and understand the legal values and sense of justice alive in the community’. It pointed also to article 16(1) of the same Law, which declares that judges ‘must not refuse to hear and adjudicate a case which is brought before them on the basis that the law does not exist or is unclear; rather, they must hear and adjudicate it’.23 In light of these two articles, the Court
declared, when considering whether an act was ‘unlawful’, judges should ‘deter-mine the wishes of the public at the time the provision was applied to a con-crete case’. In support of this fi nding, the Supreme Court pointed to the work of
two Dutch scholars who argued that judges should base their decisions on ‘legal awareness’, ‘legal needs’ and the law as it is applied in the society in which their decisions are handed down.24
In four of the cases (Toemion: 179; Kantaprawira: 117; Winata: 83; and Rojadi: 95), the Court then observed that statutes are often imperfect and unclear, but that judges were required to ‘provide justice’ by interpreting those statutes, including ‘grammatically and historically’.25 In the Toemion case (p. 179) only, the Court also
emphasised that, when interpreting statutes, it would apply Gustav Radbruch’s doctrine of priorities, under which the interests of legal certainty are considered subservient to ‘justice and the benefi t of the law’.26
23 Sapardjaja (2002: 190–1) notes that some scholars interpret the material unlawfulness concept, refl ected in article 16(1) and its almost identical predecessors in earlier Judiciary
Laws, as allowing judges to consider general legal principles or adat (customary law) in their decisions, which, by defi nition, would presumably refl ect community values. For
rea-sons of space, the present article does not consider this argument.
24 In all cases, the Court cited the works of H.J. Hamaker (Het Recht en de Maatschappij and
Recht, Wet en Rechter) and of I.H. Hymans (Recht der Werkelijkheid), without providing any further bibliographical details of these works. The Court referred also to the work of Prof. Dr Achmad Ali (Ali 2002: 140).
25 Citing Lie Oen Hock (1959: 11).
26 The Court did not refer to any bibliographic details of Radbruch’s work, but this prin-ciple is discussed in Radbruch (1946), which, along with its 2006 English translation, is cited in Paulson (2006).
Having declared that the Constitutional Court’s invalidation of the Elucida-tion to article 2(1) had made the meaning of the term ‘unlawful act’ in article 2(1) unclear, and having established that the Supreme Court has authority to interpret statutes actively and create law to resolve such uncertainties, the Supreme Court attempted to fi ll the gap it claimed to have identifi ed. In this endeavour, the Court
relied upon two sources of law. The fi rst source was doctrine – that is, the work of
legal scholars, both Dutch and Indonesian; the second was Supreme Court juris-prudence (yurisprudensi) – that is, Supreme Court decisions.27 In all fi ve cases, the
Supreme Court declared that both of these sources of law provided that:
‘unlawful’ for crimes of corruption means unlawful in the formal and material senses
… ‘[U]nlawful acts’ in the material sense includes its positive and negative senses.
The Court was very concerned to emphasise that ‘material unlawfulness’ described an act which, according to community values, was reprehensible, repeating the point in consecutive paragraphs in all fi ve cases (Toemion case: 180;
Winata case: 84; Rojadi case: 96; Kantaprawira case: 118; Sjamsuddin case: 177). An act could, therefore, be unlawful and fall within the defi nition of the Corruption
Eradication Law even if it was not unlawful in a formal sense – that is, even if the act did not breach any written laws. This, the Court noted in all but the Winata case, made it easier to prove corruption, and hence to secure convictions at trial; it cited the work of Indonesian criminal law scholar Dr Indiryanto Seno Adji (Adji 2001: 14).
In all cases except the Winata case the Court reaffi rmed this interpretation of
‘unlawfulness’ by pointing to a Minister of Justice Letter of 11 July 1970. The Court accepted that this was a precursor to the tabling of the 1971 Corruption Eradica-tion Draft Law for parliamentary approval. Point (2) of the Letter, as quoted by the Court, states:
so to cover acts which are truly corrupt, but are diffi cult to prosecute because they
were not preceded by a crime or infringement, this Bill employs ‘unlawfulness’ in the formulation of the crime of corruption, which includes [within its ambit] acts which confl ict with general norms or with the need in communal life to be caring
towards other people, their property and their rights (Rojadi case: 96–7; Kantaprawira case: 118; Toemion case: 180; Sjamsuddin case: 177).
All cases then cited the example of Supreme Court Decision 275K/Pid/1983 of 28 December 1983, mentioned above, in which a Director of Bank Bumi Daya was found guilty of corruption, despite breaching only central bank guidelines, because his act was objectionable by reference to community norms.
In all fi ve cases, the Court concluded its discussion of ‘unlawfulness’ with the
following statement:
Jurisprudence and doctrine are sources of formal law in addition to statutes, cus-tom and treaties, and are appropriately used by the Supreme Court in the concrete cases that come before it. Jurisprudence concerning the meaning of ‘unlawful act’
27 Well-respected doctrine and jurisprudence are considered to be sources of law in many countries following the civil law tradition (Merryman 1984).
in a formil and materiil sense must continue to be used as a guide so as to achieve consistency … in cases of corruption, because this accords with the legal awareness and legal feelings alive in the community, the legal needs of citizens, and the legal values and the feelings of justice alive within the community (Winata case: 84; Rojadi case: 97; Kantaprawira case: 119; Toemion case: 180–1; Sjamsuddin case: 178).
It is clear, then, that the Supreme Court has fi lled a perceived legal lacuna, left
by the Constitutional Court’s deletion of the defi nition of ‘unlawfulness’ from the
Elucidation to article 2(1) of the Corruption Eradication Law, with the interpreta-tion of ‘unlawfulness’ adopted in its own previous decisions and in the works of several legal scholars – an interpretation identical to that which the Constitutional Court struck down through fear of legal uncertainty and injustice.
The implications of the Supreme Court’s approach for Indonesia’s anti-cor-ruption drive and for the rule of law in Indonesia will be discussed below. First, however, I return briefl y to the Kantaprawira case, which clearly illustrates the
Constitutional Court’s concerns about positive material unlawfulness.
THE RUSADI KANTAPRAWIRA CASE
As mentioned, Kantaprawira was convicted for appointing suppliers to provide ink for the 2004 elections. At trial, prosecutors argued that he had twice breached the 2003 Presidential Decree. First, by directly appointing seven companies to supply the ink, he had breached article 17(5) of the Decree, which permits direct appointment absent a public tendering process only in ‘emergency situations’. In such circumstances, however, the Decree permits the appointment of only one provider (Rukmantara 2005; Hukumonline 2006a). Second, according to prosecu-tors, by setting the price of the ink at the average quote of the seven tenders, he had breached article 13(1) of the Decree, which required him to set the price using ‘expertise and reliable data’ (Rukmantara 2005).
Prosecutors argued, and the Court accepted, that Kantaprawira’s decision to apply the average price implicit in the offshore tenderers’ bids, rather than the price implicit in the lowest offshore supplier’s bid, resulted in imported ink costing Rp 33.2 billion rather than Rp 32.3 billion, causing a loss to the state of Rp 0.9 billion (Hukumonline 2006c).28 Similarly, applying the average, rather than
the lowest, implied bid price for ink from domestic suppliers cost an additional Rp 0.5 billion. According to this assessment, applying average rather than lowest bid prices caused a total loss to the state of around Rp 1.4 billion (Kantaprawira case: 19–20).
Minimising risk, safeguarding the elections, material unlawfulness?
Hotman Paris Hutapea, head of Kantaprawira’s legal team,29 objected to his
client’s conviction on several grounds. The fi rst was that Kantaprawira did not
breach a criminal law – he breached only the 2003 Presidential Decree, which is a law of an administrative nature. Convicting and sentencing him on the basis
28 See footnote 17.
29 Hutapea was said to have represented Kantaprawira pro bono because Kantaprawira was his lecturer at theUniversity of Padjajaran (Hukumonline 2005b).
of this Decree was, therefore, itself a contravention of article 1(1) of the Criminal Code, which states that defendants can only be convicted of a criminal offence that is provided for under a written criminal law (perundang-undangan pidana) (Saputra 2006).
A second ground of objection was that, as its title suggested, Presidential Decree 80/2003 on Guidelines for the Procurement of Government Goods and Services contains only suggested procedures for procurement and tender. It does not con-tain any criminal sanctions for non-compliance (Kantaprawira case: 59). Breach of these non-binding guidelines should not, therefore, have resulted in criminal pro-ceedings and imprisonment. In short, the guidelines are not ‘law’, so breaching them should not constitute ‘unlawfulness’ or an ‘unlawful act’.
The third objection was that, far from being reprehensible and abhorrent by community standards, the actions of Kantaprawira and his committee had been taken reasonably, under trying circumstances, in furtherance of an end – success-ful elections – the achievement of which was critically important for the nation. As Kantaprawira himself neatly summarised at trial, he had the diffi cult task of
balancing action, policy and rationality with time restrictions.30 After announcing
a tender for the supply of the ink, the committee he chaired received several dozen applications, most of which failed the formal pre-qualifi cation process under the
2003 Presidential Decree (KPPU 2005). Of the remaining tenderers, the capacity of any one of them to supply and deliver ink on the necessary scale within the required time-frame was highly questionable (Kantaprawira case: 51, 64). Some tenderers had no relevant experience; others were of dubious fi nancial viability
(Kurniawan and Unidjaja2004; Kurniawan 2004c; Kurniawan and Mariani 2004). Kantaprawira was also said to have been concerned that the quotations provided by some of the seven tenderers were too high (Rukmantara 2005).
Kantaprawira considered re-tendering for the supply of the ink but, with the ‘strong support’ of members of Indonesia’s national parliament, he decided against this (Kurniawan 2004c). The KPU had begun preparing for the elections much later than expected owing to delays in the enactment by the national parlia-ment of the 2003 Law on Legislative Elections (Kantaprawira case: 43). By this stage, the election was only a matter of weeks away and, given that the provision of the ink was considered critical to the success of the election, Kantaprawira decided to appoint seven of the tenderer companies to provide the ink. He arranged for three Indonesian companies to supply around 100,000 bottles of ink and for four other companies to import 1.14 million bottles from India (Kurniawan 2004d, 2004e; Hotland 2006). Kantaprawira claimed to have divided responsibility to supply the ink among several tenderers because relying solely on one supplier or importer carried too much risk that the ink would not be supplied to all necessary locations, or even at all (Kantaprawira case: 43–4, 60).
Kantaprawira’s concern over capacity and fi nancial viability should be seen in
the context of problems the KPU had experienced in securing the supply of other election necessities. The KPU had diffi culties with ballot box supply, for example,
because the sole tender winner, PT Survindo Indah Prestasi, failed to meet its production target. The KPU shaved 60% off its contract with PT Survindo and
30 ‘Pengadaan tinta Pemilu: Rusadi mengaku tak ada yang salah [Procurement of election ink: Rusadi claims he did nothing wrong]’, Gatra, 9 February 2006.
awarded contracts totalling this amount to the second and third place bidders (Kurniawan 2004a; Kurniawan 2004b). In this context, it would seem that Kanta-prawira’s concern to mitigate risk was entirely justifi able.
It is arguable that the price Kantaprawira set for the ink was also reasonable under the circumstances. As mentioned, he set the price for the ink based on the ‘average price quotations offered by the companies’ (Rukmantara 2005). A higher allocation had been ‘pre-approved’ by a plenary meeting of the KPU and he was said to have spent less on ink than was spent for the 1999 elections (Kantaprawira case: 55). His decision to use the average quote was also subsequently ratifi ed by
the KPU (Hukumonline 2006b; Kurniawan 2004c).
One further mitigating factor is of critical importance: although prosecutors alleged that Kantaprawira accepted kickbacks from the tenderers (Rukmantara 2005), this was not proven at trial. Indeed, the fi rst instance Tipikor Court accepted
that he did not enjoy any of the proceeds of his so-called ‘corruption’.31 On appeal,
the Jakarta Tipikor Appeal Court upheld his term of imprisonment and fi ne, but
declared that he need not repay the Rp 1.3 billion because he did not receive any of it (Kantaprawira case: 45).32 Further, Kantaprawira’s lawyers observed that the
profi ts obtained by the various ink suppliers were within the range of 10–15%,
which, they argued, fell well within the limits of propriety (Indarini 2007; Kanta-prawira case: 46). These estimates were not contested at trial. Nevertheless, these factors did not affect the determination of his ultimate culpability. As discussed, article 2(1) of the Corruption Eradication Law does not require that the act caus-ing loss to the state benefi t the perpetrator; the act can benefi t a third party and
still constitute corruption.
These appear to be strong arguments against Rusadi’s culpability and, ulti-mately, his conviction. Indeed, it is arguable that – as his lawyers asserted ( Kanta-prawira case: 66) – considering the success of the 2004 elections in the face of these signifi cant obstacles, the Supreme Court should more properly have employed
the concept of material unlawfulness in its negative sense. That is, even assuming that it was proper (which, this paper has argued, it was not) for Kantaprawira to have been convicted for corruption purely because he breached the 2003 Presi-dential Decree, the Supreme Court could have held that his breaches were not, in fact, culpable, in a similar manner to the arguments in the 1933 Hoge Raad veterinarian case mentioned above. Instead, however, the Supreme Court focused on his so-called ‘formal unlawfulness’ – his breach of non-binding procurement guidelines – and the ‘reprehensibility’ of not choosing one provider or the low-est quote or both, even though, if he had done so, suffi cient ink almost certainly
would not have been supplied in time for the election. The Court attributed to him criminal culpability for work that appeared to be performed in good faith in the interests of building Indonesia’s democratic traditions, by ensuring successful delivery of essential electoral supplies.
31 See footnote 17.
32 Decision 3/Pid/TPK/2006/PT.DKI of 18 May 2006.
CONCLUSION
It is impossible to account with certainty for the similarity of the Supreme Court’s passages on the material unlawfulness issue in the fi ve cases discussed in this
paper. Perhaps the similarity exists because all fi ve cases were chaired by the
same Supreme Court judge – the Chairperson for Criminal Law of the Supreme Court, Parman Soeparman.33 Perhaps he or another judge wrote the analysis and
he insisted that it be inserted in all fi ve cases, or perhaps he reproduced it purely
out of convenience.
It is, however, possible that the similarity of the decisions was a concerted effort, perhaps led by Soeparman or other senior Supreme Court judges, to put up a strong, united and consistent front against the Constitutional Court and its deci-sion in this case. (There is, after all, very little to commend the Supreme Court’s approach to material unlawfulness in these fi ve cases – from a legal perspective,
at least.) If this hypothesis is correct, then it tends to support anecdotes suggesting that the Supreme Court and the new Constitutional Court are not on particularly good terms.
A strong legal argument against the Supreme Court’s decision is that judges are not required to engage in penemuan hukum (‘discovery of the law’) unless a statute is unclear or incomplete. The Constitutional Court had erased from the Corrup-tion EradicaCorrup-tion Law the use of ‘community standards’ in the determinaCorrup-tion of culpability for corruption. This means that an act that might be reprehensible to some, but which is not contrary to a written law, cannot constitute corruption. There appears to be no lack of clarity or completeness in this. There was, there-fore, no justifi cation for the Supreme Court to disturb the effect of the
Constitu-tional Court decision.
Perhaps more signifi cant is that the Supreme Court’s decision appears to have
breached the rule of law – at least in respect of two features the rule of law is commonly said to possess. First, it is often said that the rule of law requires that laws be predictable and operate prospectively (Koopmans 1980; Sampford 2006). Clearly, as the Constitutional Court found, determining culpability, particularly for serious crimes, on the basis of vague and uncertain community standards is unacceptable: basic fairness requires that perpetrators be able to discover whether what they plan to do will breach the law.
Second, the Supreme Court appears itself to have breached the law and exceeded its jurisdiction in these fi ve decisions. The Constitution has appointed
the Constitutional Court, not the Supreme Court, to determine whether legisla-tion is constitulegisla-tional. The Constitulegisla-tion stipulates that Constitulegisla-tional Court deci-sions are ‘fi nal and binding’ (article 24C). It is the Constitutional Court alone that
has the ‘last say’ on whether a statute, or part of a statute, should remain on the books. This implies that the invalidation or deletion of a part, or all, of a statute has greater weight if performed by the Constitutional Court than if performed by the legislature itself. If this were not the case, then the Constitutional Court’s function – to protect the Constitution – would be meaningless, because the legis-lature could simply re-enact legislation that the Constitutional Court had struck
33 Different members of the judicial panel were appointed to each case, however. For more information about Parman Soeparman, see his personal website at <http://parmansoepar-man.com/>.
down. If this interpretation is correct, then the Supreme Court has – by reference to jurisprudence and doctrine, both clearly subservient in status to statutes as sources of law within any legal tradition, including the civil law tradition (see, for example, Glendon, Gordon and Osakwe 1985; Merryman 1984) – re-instated the terms of a statute in the face of an explicit declaration of a contrary intent by an authority higher than that of the legislature. In so doing, the Supreme Court has also breached the Constitution: the Constitutional Court’s interpretation as to what the constitutional right to legal certainty requires of legislation is formally binding, including upon the Supreme Court. This appears to breach a fundamen-tal tenet of the rule of law contained in article 1(3) of Indonesia’s Constitution, which declares that ‘Indonesia is a state based on law’. Neither the government nor the Supreme Court may act arbitrarily and in breach of the law; they must act in accordance with the law. These cases, then, expose a fl aw in Indonesia’s
constitutional order: constitutional defects contained in Supreme Court decisions are not remediable.
One further issue, not touched upon, to the knowledge of the author, by the Constitutional Court or the Supreme Court, is the propriety of determining ‘for-mal unlawfulness’ within the meaning of article 2(1) of the Corruption Eradica-tion Law, to include the breach of mere guidelines for procurement. In the 1983 Supreme Court case mentioned above, unlawfulness was found to exist in the breach of a written policy of Bank Indonesia. Is a guideline or a policy, with no sanctions applicable – or intended – for breach, really a law? And is its breach, therefore, really an ‘unlawful’ act? How does one distinguish between a rule the breach of which is not ‘unlawful’ and a rule the breach of which is ‘unlawful’? Could a person who breaches traffi c rules and damages a car owned by the state,
for example, stand accused of corruption? Could breach of a school rule by a student ground a corruption conviction? Surely, acts that attract serious penal-ties – including imprisonment and even death, as do acts of corruption under the 1999 Corruption Eradication Law – must be specifi cally defi ned, in some detail,
by statute, after substantial open parliamentary debate.
For some commentators, and perhaps much of the Indonesian general public, corruption in Indonesia, particularly during Soeharto’s 32 years in power, devel-oped into a problem so large and so detrimental to Indonesia’s governance that ‘shock therapy’, administered by the KPK and the Tipikor Court, is acceptable, even required. Legally shaky convictions of some along the way might be consid-ered acceptable ‘collateral damage’ in the effort to build the momentum necessary for the anti-corruption drive to have a tangible impact on the behaviour of a sig-nifi cant proportion of government offi cials. However, to the extent that the KPK
continues to prosecute, and the Tipikor Courts continue to convict, on grounds declared invalid by the Constitutional Court, they, like the Supreme Court, are compromising the rule of law. It is ironic that in this endeavour they have been shown the way by what is now regarded as one of the most corrupt institutions in Indonesia – the Supreme Court.
The Tipikor Court’s 100% conviction rate raises another signifi cant rule of law
question. Indonesia’s version of the rule of law (negara hukum), contained in arti-cle 1(3) of the Constitution, means, fundamentally, that the government, including institutions such as the KPU, must abide by the law. Necessarily, the rule of law requires that there be independent judges to determine whether the government
has, in a particular instance, broken the law. In the face of the Tipikor Court’s perfect conviction rate, some lawyers and commentators have claimed that it lacks this judicial independence: they claim that it is biased against defendants and has forgone the presumption of innocence in its zeal to convict (Syamsuddin 2007). Further, by overly vigorously enforcing the ‘rules’ – in some of the cases discussed above, non-binding guidelines – the KPK and the Tipikor Court may be hindering efforts to address governance problems in Indonesia. Rather than improving governance by punishing and deterring corruption, these institutions are perhaps, in fact, deterring ‘governing’ – that is, they are dissuading govern-ment offi cials, through fear of prosecution, from taking action to achieve
impor-tant ends, especially in relation to the improvement of economic infrastructure, the attainment of which requires state funds.
In this context, perhaps the rules need to be changed. A defi nition of corruption
requiring the prosecution to prove that the defendant has received at least some benefi t would be a good starting point. This need not be a direct fi nancial benefi t
to him or herself; but if the alleged ‘benefi t’ is received by a third party in the fi rst
instance, then the prosecution should be required to show the benefi t, monetary
or otherwise, the defendant has received. Without this element, breaching regula-tions inadvertently might be mere negligence; breaching regularegula-tions to achieve a greater purpose, such as successful general elections, might be a real necessity.
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