The Jakarta Post
In the end, the House of Representatives ethics council decided against punishing House Speaker Setya Novanto after finding him guilty of an ethical violation ' namely trade in influence. The decision not to sanction Setya came after the speaker stepped down.
Setya's resignation was an end to his efforts to hold onto power, but for law enforcers it should mark the start of an investigation into his alleged attempt to use his position to gain shares, an act punishable by law according to the United Nations Convention against Corruption (UNCAC).
The Attorney General's Office (AGO) has, in fact, already launched a probe to find out whether the meeting between Setya, fuel importer Muhammad Reza Chalid and PT Freeport Indonesia president director Maroef Samsuddin, the focus of the ethics council's two-week hearing, could be classified as an initial step toward conspiracy, which is a crime under Indonesian law.
There are at least two interesting points to be observed in the Setya case.
First, based on the principles of trading in influence and UNCAC, the AGO can prosecute Setya, provided that the taped conversation of him, Riza and Maroef is valid.
Trading in influence is not specifically mentioned in Law No. 20/2001 on corruption, but it is clearly stipulated in Article 18 of the UNCAC, which Indonesia has ratified.
The world's criminal law experts are divided over the applicability of UNCAC. One camp says that as the provisions of the UNCAC have not been tailored into national law in the form of criminal legislation, it is not justifiable to prosecute an individual under its provisions.
The other camp maintains that once the UNCAC is ratified, it stands as a self-executing treaty, which means the provisions contained therein automatically apply to combat corruption. Indonesia ratified the UNCAC under Law No. 7/2006, but the provisions have not been embodied in corruption laws.
Charging Setya with trading in influence would set a hugely significant precedent for investigations into politicians.
Second, it will not be easy for law enforcers to prove a conspiracy in the Setya case based on the recorded conversation.
According to the Criminal Code, conspiracy is criminalized only when it is involves state security or treason, the President and Vice President, the legitimate government and the Unitary State of the Republic of Indonesia.
The Criminal Code does not recognize recordings as evidence, but there are exceptions in the event of special crimes like corruption.
A conspiracy does not need words indicating the explicit consent of the parties.
Article 26 of the 2001 Corruption Law says that 'any recorded data or information that can be seen, read or heard that may be issued with or without the help of a facility, either on paper or any physical material other than paper, or recorded electronically in the form of writing, sound, pictures, maps, plans, photographs, letters, signs, figures or perforations that have meaning' can be considered evidence.
The AGO should therefore investigate whether the substance of Setya's taped conversation led to alleged conspiracy or constituted an attempt to perpetrate corruption in the form of passive bribery or extortion as stipulated in Article 11 of the Corruption Law.
Article 88 of the Criminal Code defines a conspiracy as two or more persons agreeing to commit a crime. It should be examined whether there was mutual agreement, mutual assent or consensus ad idem of the parties that attended the meeting.
It should be noted that in the context of conspiracy to commit bribery or extortion, consensus ad idem of two or more people does not mean there should be an agreement between the briber and bribed but an agreement between two or more people to solicit a bribe, or to bribe.
In addition, a conspiracy does not need words indicating the explicit consent of the parties ' body language or other forms of indirect agreement suffice.
As such, Attorney Gen. M Prasetyo's statement that the substance of Setya's conversation indicated a conspiracy can be followed up with an investigation into the parties involved in the meeting.
President Joko 'Jokowi' Widodo, who fell victim to apparent attempts by Setya to exploit his name, should therefore encourage a thorough investigation into the case.
A tough response from the President would send a message that he is committed to corruption eradication.
Rather than remaining silent, the President should take legal action and report the case to law enforcement agencies. Doing so would be simply a move to uphold the law and set an example in eradicating corruption.
The writer is a PhD student at the School of Law at Sebelas Maret University, Surakarta.
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