Comparison Act No.3/1971 & Act No.31/1999 jo. Act No.

20/2001 regarding Corruption Eradication

By: Flora Dianti, SH, MH.

OBJECTIVES:
The Distinctions between Act No.3/1971 Act No. 31/1999 jo. 20/2001 Review and Discussion

1. 2.

the Brief History of Anti Corruption Law

Distinguished into:

Before Old Decade  Old Decade: Soekarno  New Decade: Soeharto Act. No.3/1971  Reformation Decade: Act No. 31/1999 jo. Act No.20/2001


New Decade: Soeharto

Year 1967 Regulations Press Decree to Fight Corruption Through Prevention and Repression Agencies Corruption Eradication Team (General Attorney)

1970

Press Decree to Assess Commission of Four Corruption matters and its (M. Hatta) solution (BUMN, Pertamina, Bulog, illegal Logging). Corruption Eradication Act No.3 Year 1971 (No Transparency, Only Lower level Official offender, Military Domination) Coordination: Investigator and Prosecutors + Special Commission

1971

Anti Corruption Measures: 19981998-now

Year 1999 Regulations Clean Government Law No.28/99 Content Mandatory wealth declaration for public officials Periodic Audits Commission to audit the Wealth of State Officials Outlines charges and procedures for prosecution

1999

Law on the Eradication of Criminal Acts of Corruption No.31/1999 Amendment (Law 20/2001)

2001

Broadens and clarifies definition of corruption and increases penalties Defines criminal Corruption

Comparison
1. Formulation of Causalitet doctrine
Act No. 3/1971
Art. 1 (1) sub a & b: Direct and indirect cause Which directly and indirectly creates Direct and Indirect cause: Von Buri theory: Conditio sine qua non. Father-kid-taxi driver? Police-heart attack-people

Act No. 31/1999 jo.

Art. 2 & 3: Direct Cause which creates losses to the state finance or state economy Direct Cause: adequaat causa. Von Kries Theory. Father-kid-taxi driver=?

2. Formulation of formal & Material sense

Act No. 31/1999 jo. Act No. 3/1971
Art. 1 (1) sub a & b: illegally = formal sense. Art. 2 & 3: illegally=formal and/or material sense the word illegally covers acts that are See Constitutional Court against the law in the Decision No. No.003/PUU-IV/2006 formal and material sense, namely >< Art. 28D (1) RI Constitution. although the actions are not governed in Illegally should be= formal law, in the event that the actions are sense! considered as being punishable because they are not in line with the sense of justice or social life norms, the actions can be sentenced.

3. Formulation of formal & Material offence

Act No. 3/1971
Art. 1 (1) sub a & b: material offence No word can =material offence

Act No. 31/1999 jo.

Art. 2 & 3: Formal Offence In this provision, the word can before the phrase creating losses to state finance or state economy indicates that the corrupt act is a formal offence, namely the corrupt act s existence is adequately met with rules that have been formulated without consequence Easier to be proven

4. Formulation of intention & Negligence

Act No. 3/1971
Art. 1 (1) sub a & b: should be known as illegal.

Act No. 31/1999 jo.

Art. 2 & 3: Eliminate Should be known

Meaning= with deliberate intention

Meaning= with/without deliberate intent=negligence

5. Punishment
Act No. 3/1971
Most articles: Capital punishment of -Life imprisonment or -maximum imprisonment -& or maximum fine of Rp.30 Million

Act No. 31/1999 jo.

Most articles: Capital Punishment of: Light imprisonment Life imprisonment Minimum & Maximum imprisonment & or max fine of Rp. 1 Billion See: Art. 2: 4 years + 200 M Art. 3: 1 year + 50 M Art. 5-12: AND/OR? Art. 12 A?

6. Extent of Civil Servants definition

Art. 1 (2) jo. Art. 92 PC 2. Civil servants include: a. civil servants as referred to in Law on Manpower b. civil servants as referred to in the Criminal Code c. people receiving salaries or wages from the state finance or regional finance; d. people receiving salaries from a corporation that receives assistance from state finance or regional finance, or e. people receiving salaries or wages from other corporations which use capital or facilities from the state or from the public.

Civil Servants Definition

  

1. Art. 2(1) Act No. 43/1999 2. Art. 92 Penal Code 3. Art. 1(2) Act No. 31/1999

Act. No.43/1999 Civil Servants: 1. PNS (District & Central) 2. TNI 3. POLRI

Corporation as a Subject
 

Art. 1 (1) Corporation constitutes an organized collection of people and/or wealth. It can be in the form legal bodies and non legal bodies

7. Additional Punishment
Act No. 3/1971
No Additional Punishment. Why? Bill of Penal Code: No light imprisonment

Act No. 31/1999 jo.

Article 18 (1), (2) (3) : 1. In addition to the additional sentence as referred to in the Criminal Code, the additional sentences are: a. confiscation of mobile goods or immobile goods b. the compensation paid shall be to a maximum of twice the wealth obtained from the criminal act of corruption. c. whole or partial closing of the company for maximum period of 1 (one) year. d. revocation wholly or partially of rights or abolishment wholly .. which have been or can be given by the government to the accused.

7. Additional Punishment
Act No. 3/1971
No Additional Punishment. Why? Bill of Penal Code: No light imprisonment

Act No. 31/1999 jo.

Article 18 (1), (2) (3) : 2. In the event that the accused does not pay the compensation as referred to in paragraph (1) letter b in maximum period of 1 (one) month after the verdict of the court has obtained legal permanent power, the wealth can be confiscated by the prosecutor and auctioned to cover compensation.

7. Additional Punishment
Act No. 3/1971
No Additional Punishment. Why? Bill of Penal Code: No light imprisonment

Act No. 31/1999 jo.

Article 18 (1), (2) (3) : 3. In the event that the accused does not have adequate wealth to pay the compensation as referred to in paragraph (1) letter b, the accused is merely sentenced to a period that does not exceed the maximum sentence the main crime, in accordance with the provision in this law, with the period of the sentence having been determined in the court verdict.

8. Coordination of Investigation
Act No. 3/1971
No Coordination of investigation.

Act No. 31/1999 jo.

Article 39:

The Attorney General coordinates and controls the indictment, interrogation and prosecution of the corrupt act, which are conducted jointly with other persons, who abide by the Public Justice and Military Justice.

9. Public Participation
Act No. 3/1971
No Public Participation See: Endin Case=whistle blower?

Act No. 31/1999 jo.

Article 41 & 42: Article 41 1. The public can play a role and assist with the efforts to avoid and eradicate corrupt acts. 2. Public participation as referred to in paragraph (1) is realized in the following forms: a. the right to seek, obtain and provide information on the allegation that a corrupt act has taken place.

9. Public Participation
Act No. 3/1971
No Public Participation See: Endin Case=whistle blower?

Act No. 31/1999 jo.

Article 41 & 42: Article 41 2b. the right to obtain services in viewing, obtaining and providing information on the allegation that a corrupt act has taken place, to the law enforcers who handles the corruption case. 2c. the right to convey recommendations and opinions responsibly to law enforcers who handle the corruption case. 2d. the right to obtain replies to their questions to law enforcers within a maximum period of 30 (thirty) days.

9. Public Participation
Act No. 3/1971
No Public Participation See: Endin Case=whistle blower?

Act No. 31/1999 jo.

Article 41 & 42: 2d. the right to obtain replies to their questions to law enforcers within a maximum period of 30 (thirty) days. 2e. the right to obtain legal protection in the following matters: (1) exercising the rights as referred to in letters a, b and c. (2) asked to be present in the processes of indictment and interrogation in the court session as whistleblowers, witnesses, or expert witnesses in accordance with me existing legislations.

9. Public Participation
Act No. 3/1971
No Public Participation See: Endin Case=whistle blower?

Act No. 31/1999 jo. Act No.20/2001

Article 41 (2e): (3) The public as referred to in paragraph (1) has the right and responsibility in the efforts to prevent and eradicate corrupt acts. (4) The right and responsibility as referred to in paragraphs 2 and 3 are exercised by adhering to the principles or provisions governed in the existing legislations and by abiding to the norms of society. (5) The provision on the procedure for the public participation in preventing and eradicating corrupt acts as referred to in this Article, is further governed by a Governmental Regulation.

9. Public Participation
Act No. 3/1971
No Public Participation See: Endin Case=whistle blower?

Act No. 31/1999 jo. Act No.20/2001

Article 42: 1. The government gives tokens of appreciations to members of the community who has assisted the efforts to prevent and eradicate corrupt acts. 2. The provision on the appreciation as referred to in paragraph (1) is further governed in the Government Regulation.