The issue of restorative justice for small corruptors

Human Rights

Attorney General Sanitiar Burhanuddin’s statement during the Opinion Hearing Meeting (RDP) with Commission III of the House of Representatives (DPR) in January has triggered a debate among Indonesians.

During the meeting, Burhanuddin said that corruption cases that cause the state a loss of less than Rp50 million and whose perpetrators are categorized as small corruptors can be resolved with the return of the misappropriated funds alone.

This means small-scale corruptors would not need to face the criminal punishment of imprisonment.

The resolution of corruption cases through the administrative method of returning state funds would only apply to non-repeat offenders and cases where the quantum of loss is small.

The resolution provided by the attorney general has sparked a debate. The notion of people indulging in graft, no matter how small, walking free has led to much public concern and has become a highly contentious issue.

Indonesia Corruption Watch (ICW) researcher Kurnia Ramadhana expressed concern that there will be a surge in corruption cases if an exception is made for small-time corruptors.

Moreover, Article 4 of the Law on Eradicating Corruption states that returning the funds the state has lost does not eliminate punishment for the corrupt, Institute for Criminal Justice Reform (ICJR) researcher Iftitah Sari highlighted.

Hence, while the focus on the return of state funds is aimed at fast, simple, and cheap legal process, the decision to do away with the penalty for small-time corruptors is still not quite correct, she argued.

However, a flood of vocal rejections by observers has not deterred the Office of the Attorney General to further consider abolishing punishment in corruption cases with losses of less than Rp50 million.

Junior Attorney General for Special Crimes, Febrie Adriansyah, explained that the decision to abolish sentencing of small-time corruptors is a form of restorative justice currently being pushed by the Office of the Attorney General.

Restorative justice

Adriansyah informed that the implementation of the Office of the Attorney General’s regulation on restorative justice is still limited, especially in cases that involve small communities.

Considering that the goal of restorative justice is to provide legal benefits to as many people as possible, the next step is to implement it comprehensively in every strata of society, which includes its application to corruption cases.

Restorative justice is very suitable for corruption handling, as stipulated by Article 2 and Article 3 of Corruption Law, he explained.

The Junior Attorney General cited an irregularity in several corruption cases that the Office of the Attorney General has handled.

Specifically, the quantum of the state’s loss that the corruptors had to return did not match the expenses that the state had to pay in prosecuting the perpetrators.

Thus, rather than retrieving the misappropriated state funds, the state experienced a loss from pursuing legal action against small-time corruptors.

This shows that the amount of money spent exceeded the amount that was retrieved through the handling of corruption cases with small losses.

Based on this, the Law on Eradicating Corruption that has been implemented in Indonesia all this time has tended to utilize retributive justice, Ardiansyah said.

The law is not yet capable of fulfilling the purpose of its existence since it does not fully make up the state’s financial loss.

In fact, as a result of the retributive justice approach, what has become the primary concern is the punishment of corruptors, and not the recovery of the state’s financial loss.

This awareness has led the Office of the Attorney General to promote restorative justice in prosecuting corruption cases. The office has expressed the desire to optimally focus on retrieving the misappropriated state funds.

The existence of Article 4 of the Corruption Eradication Law, in fact, hinders the corruptors’ effort to expedite the return of state funds.

This situation is what has made progressive steps necessary.

Progressive steps

The Office of the Attorney General has realized that not all corruption cases can be resolved through restorative justice.

There are several considerations that the office has to pay special attention to before determining whether administrative or criminal sanctions need to be applied.

For instance, corruption cases involving less than Rp50 million can have a severe impact on the surrounding community.

Hence, progressive steps are necessary to guide the attorneys’ discretion (their authority to make a decision) in stopping corruption cases.

Adriansyah highlighted six progressive steps that can be taken to achieve this.

The first is implementing restorative justice in handling corruption cases where the amount of misappropriated funds is small as they can potentially cause a loss for the state due to the high case handling cost.

The next step involves creating a parameter to determine certain classifications to serve as guidelines for carrying out corruption discontinuation discretion.

The third step concerns observing 10 corruption-prone areas that have been mapped out since 2012. Through this step, areas where discretion is not possible can be determined.

The fourth step is determining which discretion concept can be adopted by the Office of the Attorney General.

With this, the recovery of state funds can be expedited and still ensure perpetrators and the public are deterred from corruption. Thus, people will not commit the same act in the future.

The fifth progressive step is public communication to minimize debate concerning the restorative justice policy in corruption cases.

This is important considering that the implementation of restorative justice is not just for legal purposes, but to also provide higher justice and benefit to the nation.

The last step relates to determining the method for monitoring the attorneys’ discretion to prevent them from misusing the authority or deviating it from its intended purpose.

For instance, monitoring can be done through strict limitations and determining the guide for the practice’s implementation.

Attorneys’ discretion in discontinuing corruption cases is an effort by the office for ensuring justice to the people, Adriansyah stressed.

Source: Antara News