Academic journal article Journal of Legal, Ethical and Regulatory Issues

Abuse of Authority by Government Officials: Controversy between Administrative and Criminal Sanctions

Academic journal article Journal of Legal, Ethical and Regulatory Issues

Abuse of Authority by Government Officials: Controversy between Administrative and Criminal Sanctions

Article excerpt

INTRODUCTION

According to the Indonesian Criminal Law, corruption is a serious criminal offense punishable under Law No. 31/1999 on the Eradication of Corruption as amended by Law No. 20/2001 on the Amendments to Law No. 31/1999 on the Eradication of Corruption, or Undang-Undang Tindak Pidana Korupsi (UU TIPIKOR, as it is commonly referred to in Indonesia). An article 5 section 2 of this law says that there is corruption within the administration when civil servants or state administrators receive gifts or money in exchange for their actions or inactions which are not only contrary to their duties and obligations but also to the law. Corruption within the administration in Indonesia has strongly been criticized since the advent of the Reformation Era or Era Reformasi in 1998. The prosecution of corrupt government officials is seen by the public as a success of the Corruption Eradication Commission or Komisi Pemberatasan Korupsi (KPK) in the fight against corruption in Indonesia (Isra et al., 2017). Throughout the year 2013 alone, there were at least 290 Heads of the region (Governors, Regents, and Mayors) involved in corruption scandals by abusing their powers in providing administrative services to their population.12 In addition to Law No. 30/2002 establishing the Corruption Eradication Commission or KPK, several measures have also been taken by the government to combat corruption in Indonesia. These measures include the Presidential Decree No. 5/2004 on Steps and Concrete Programs to Accelerate the Eradication of Corruption, the Presidential Decree No. 9/2011 on the Action Plan for the Prevention and Eradication of Corruption, the Presidential Decree No. 2/2014 on Corruption Prevention and Eradication.

However, despite the enactment of these regulations however, corruption continues its rapid expansion from the highest level of the government all the way down to the lowest level of the Indonesian society (Isra et al., 2017). The attempt to fight corruption has also been backed by the passing of Law No. 30/2014 on Government Administration, which adds more polemic to the already complex war on corruption in Indonesia by prescribing that a loss of state finance as the result of alleged abuse of authority does not necessarily imply corruption. This law goes on to say that if the loss/damage suffered by the state is restored by the accused government official, then the act may not be deemed as corruption. In other terms, an abuse of authority is punishable as an act of corruption if the offender fails to rectify/restore the wrongdoing. But even proven guilty, the law still maintains that the matter shall be resolved through administrative courts instead of criminal courts. This is the point where lies the contradiction between administrative sanctions and criminal sanctions with regard to the prosecution and punishment of corrupt government officials. Many criminal lawyers and scholars consider this as one of the weakening points of the fight against corruption in Indonesia as they believe that the enactment of Law No. 30/2014 is at odds with one of the important corruption eradication laws, i.e., Law No.31/1999 on Corruption, which clearly stipulates that if there is a financial loss in the management of public funds as a result of an abuse of authority, then there definitely is an act of corruption. The same law on government administration also stipulates that either criminal sanctions or administrative sanctions can apply to such conduct after an investigation by Government Internal Supervisory Apparatus.

This paper begins by explaining what abuse of authority means the role of administrative law so as to point out its importance in strengthening the eradication of corruption in Indonesia. In so doing, the paper argues that although authority itself is not always corruptive, and that not all government officials are corrupt, it is important to note that the greater the authority of government officials, the greater the possibility for them to abuse their power in dispensing public services to the people. …

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