We are Not Corruptors

KOMPAS/DIDIE SW

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There is an interesting old response to the assumption that corruption is deep-rooted: "Corruption is not a culture, because if corruption was a culture, then corruptors would be cultural observers".

Of course, the argument statement presents is not entirely accurate, but it cannot be said to be entirely inappropriate to today’s context.

Denny Indrayana piecem "We are Corruptors" (Kompas, 18/09/2018), represents the true feelings of quite a few parties. Corruption is rampant because we are the ones who allow it. Even though we may not be actively involved, we let it happen. The sin of allowing something to happen might indeed be equal to that of an actor, albeit passively. Interestingly, in his closing paragraph, Denny Indrayana writes, "Corruptors Are Not Us". His writing takes a stance at that point.

PKPU & anti-corruption awareness

The General Elections Commission Regulation (PKPU) that prohibits those convicted of corruption, child sexual abuse and drug crimes – particularly its anti-corruption stance –actually demarcates anti-corruption awareness and our allowance of corrupt behavior. The PKPU is a collective awareness of the anti-corruption spirit that must be upheld, and differentiates in that existing laws must be upheld in the spirit of anti-corruption ethics.

The regulation is a necessity that has been taken under a condition in which the legislation does not take sides in law enforcement and anti-corruption. The PKPU points out that ethics is the foundation of law.

The study of law makes us understand that the law, especially in the case of those closely related to political interests such as the General Election Law, infrequently takes into consideration a deep philosophical meaning of law and ethics. Frequently, it is only born as a result of political interests. Such political interests adhere to political affiliations and their various relevant needs. And, in terms of rational thought, regulations that do not prohibit formerly convicted corruptors are part of this.

The uniqueness of those who drafted the law is evident in Article 169, Letter d of the General Election Law, which includes the following provision for presidential candidates: that they had "never betrayed the state and never committed acts of corruption and other serious crimes". This provision clearly states that former corruption convicts are not permitted to run for president, but are allowed for other posts.

In fact, we know that the direct election system appoints the president, the House of Representatives (DPR) and the Regional Representatives Council (DPD) as the caretakers of sovereignty that the people grant directly through the general elections. Does this mean that voters can elect former corruptors to the House but not the president? Why should the anticorruption requirements distinguish between these two?

Even if we expand our fundamental thinking, it becomes increasingly clear that the rules do not include a ban on corruptors, not only of becoming a state official, but also of be a civil servant. The provision requires that individuals possess a certificate of good conduct and has never been imprisoned or convicted for a crime that carries a two-year sentence through on a permanent legal decision. Civil servants must be as clean as possible, but not legislative candidates?

Imagine, how naive it would be if the provision is eliminated for an institution that has a bad track record for corruption; an institution that is highly familiar with acts of corruption. It is easy to see that an article that allows former corruptors to be nominated as legislative candidates is unnatural and appears to be drafted under a corrupt state. If anyone desires to think according to legal proprieties, of course the question is whether it is important "to fight" corrupt laws or to leave them for the classic argument that “the law says so”.

The General Elections Commission (KPU) found an empty space and fought against corruption. Not because they are unaware of the legal constraints that human rights should be regulated by the appropriate laws. It is because they are aware of this that the KPU has altered its provisions so that instead of a stipulation for an individual candidate, the provision stipulates that political parties not nominate former corruptors. That is the ijtihad (independent reasoning) that I pray that, if it is correct, is rewarded twice, and if incorrect, is rewarded once.

MA: consistently inconsistent

Whatever the case, the Supreme Court (MA) has made its decision, one which clearly orders that the PKPU be amended. The court’s decision is, of course, binding. Even though it is a legal decision, this does not mean that it cannot be discussed through legal analysis.

Is it true that the MA is consistent? Yes; in some cases, the MA looks to be highly consistent in its inconsistency. Particularly with regard to this decision, the court has focused its logical reasoning by negating Article 55 of the Constitutional Court (MK) Law. Article 55 states that the norms of the law as tested by the Constitutional Court must halt legal tests at the Supreme Court on all regulations below it. Thus far, the Supreme Court has erroneously applied the provisions of Article 55. In a number of its decisions, the Supreme Court has interpreted the phrase “must halt” in Article 55 to mean that the Supreme must to issue a decision stating that the legal test is premature and therefore not accepted.

Several petitioners who have been disadvantaged by the provisions of Article 55 have tested exactly this matter, which is discussed in detail in Constitutional Court Ruling No. 93/PUU-XV/2017.

The Constitutional Court\'s decision discusses the meaning of the word "must halt" in detail, that it was inappropriate to interpret this to mean that Article 55 would apply only in the event that the norms tested in the Supreme Court and the Constitutional Court were interrelated, so that the Constitutional Court\'s decision could affect the Supreme Court\'s ruling. The Constitutional Court\'s decision does not distinguish whether the tested articles are related or not. Logically, the Constitutional Court has tested only a single article of a law in several cases, but this does not mean that the court could not abolish the entire law.

Should the Supreme Court continue its test even if the Constitutional Court abolishes the entire law? This is the reason why tests at the Supreme Court must be halted, regardless of whether the article being tested is related or not.

However, this is of course not the crucial issue, because it is a technicality. The bigger debate is how is it possible that in testing the PKPU, which presents formal provisions, the Supreme Court has breached the legal procedures? Of course, this article does not intend to say that the Supreme Court is pro-corruptor by making such a decision. However, at the very least, the sense of a greater anti-corruption ethical stance has been absent. Instead, there is a sense of allowing it to pass. In fact, we understand that a classical philosophy of the law is that ethics is the foundation of law.

Let\'s go back to the classic debate between natural law and positivism. The two schools are very old in the development of legal science. Divinity and rationale in natural law, which manifests in "irrational" and "rational" streams, always idealizes ethical and moral teachings as complementary to legal justice.

This is different from positivism, which omits morality and ethics in judicial perspective. Jeremy Bentham, one of its main thinkers, views the law is neither a moral nor ethical reflection that is imposed entirely on the basis of human ethics, but that the law is a direct order from a sovereign ruler, an extension of the contractual relationship between the people and their ruler, and thereby negates taking an abstract metaphysical approach.

This is similar with Austin, who progressed positivism as legal thought, and includes Kelsen who, with his puritan theory on law, sees law as a fixed thing and thus postulates that law is hierarchical. The famous adage says the law is arranged vertically, and should not be hierarchically contradictory.

Of course, I am not in a position to accept natural law and reject legal positivism, or vice-versa. I accept both as schools of legal thought. However, what I find difficult to accept is the inconsistency and pragmatism in their application.

If Article 55 of the Constitutional Court Law and the Constitutional Court\'s decision on it are rejected according to an ethical awareness that something greater is to be achieved, why then, has the same stance been taking in the context of the PKPU? Why then, has the testing procedures and the material being tested treated differently, and the distinction made without a clear reason? In short, why have the Supreme Court justices chosen to be "tempeh" with regard to Article 55 of the Constitutional Court Law, while they chose to be "tofu" for the PKPU?

The problem is the inconsistency in the legal application. And this symptom is often seen in both judges and law scholars. The Constitutional Court frequently does the same thing in its decisions, without presenting an adequate context or explanation as to why it must be rejected on the one hand, while it must be accepted on the other. In fact, that is where strong rulings are expected through legal discourse and discovery. The more prescriptive laws resolve problems, while considering the concept of the Indonesia’s rule of law, of course.

It must be remembered that the concept of "Indonesia’s rule of law", as mentioned in Article 1, Paragraph 3 of the 1945 Constitution, does not merely refer to a legal state in terms of legislation or formal regulations, but also the sense of justice that lives and grows in the society (material). And that is where the demand for anti-corruption as a concept of ethical and moral teachings exists in the regulatory context.

‘They are not us’

In the context of the widespread war against corruption, we must be bold in declaring that “they are not us”. Not because we have never made mistakes. “To err is human” is a statement that we all understand. However, when an individual has promised to the people not to do harm but then commits corrupt acts, I am fully convinced that he is inappropriate and should never hold public office again. Such a person must be distanced from public office.

Please think whether such individuals must be prevented from ever running for public office again or be given a reasonable time limit, as one of the characteristics of holding public office is the public’s trust.

If the legislators do not raise this issue, it is critical that other state institutions point it out and turn it into a great opportunity for the public. Unfortunately, they did not take this opportunity and instead let it go. Their act of letting it go is not our responsibility, but it is our responsibility to make an appropriate choice at the polling stations. Don\'t vote for the corruptors on the ballots, because we are not corruptors!

Zainal Arifin Mochtar, Lecturer, Law School, Gadjah Mada University (UGM); Researcher, the Center for Anti-Corruption Studies (PUKAT), UGM Law School