FORMULATION POLICY CRIMINAL DEATH PENALTY IN …

International Journal of Humanities, Religion and Social Science ISSN : 2548-5725 | Volume 2, Issue 7, 2018 www.doarj.org

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FORMULATION POLICY CRIMINAL DEATH PENALTY

IN CORRUPTION CRIME

Syahrul Fadli*, Amiruddin

**, Lalu Parman

**

* Student of Magister Law Study Program, Postgraduate Program,

Mataram University, Indonesia **

Lecture of Law Faculty Mataram University, Indonesia

Email correspondence: [email protected]

Abstract: This research is a normative research that discusses the formulation policy of

capital punishment in corruption, where in the provisions of the legislation that is in Law

Number 31 of 1999 Law No. 21 of 2000 concerning Eradication of Corruption. Where in

Article 2 paragraph 2 it is said that capital punishment can be applied to certain

circumstances. This particular category of circumstances in the explanation is explained if

the country is in a state of danger, natural disaster, in a state of economic and monetary

crisis and repetition of corruption. But in fact until now there is still no news of the corruptor

getting a death sentence, because the policy formulation in the Corruption Eradication Act

still feels not clear enough the purpose and purpose of entering the phrase is a certain

situation, resulting in never imposed capital punishment against the perpetrator corruption.

Methods the approach used in this study is the legislative approach, reviewing the laws and

regulations related to related problems, conceptual approaches, namely assessing materials

in the form of literature books, opinions of experts and obtaining related materials from the

internet and so on. And in principle this study has the purpose, namely, to examine and

analyze the Formulation of the Death Penalty System in Article 2 paragraph (2) of Law

Number 31 of 1999 of Law Number 20 of 2001 concerning Eradication of Corruption. As

well as reviewing and analyzing the Theoretical Aspects of the Criminal System of Death in

Corruption in Indonesia. From the results of this study the formulation policy and theoretical

aspects of capital punishment although there are various views that are pro and contra, but

the national ideology of Pancasila does not prohibit the application of capital punishment as

well as the Human Rights Law which has always been an obstacle to the application of

capital punishment does not prohibit the application of capital punishment if you see the

consequences of corruption which has claimed human rights, the consequences of the crime

are categorized as extraordinary and appropriate for the application of capital punishment

by ruling out the formulation in Article 2 paragraph 2 of the Law on Corruption Restriction.

To be able to counterbalance corruption fairly and equally.

Keywords: death penalty, corruption crime

Formulation Policy Criminal Death Penalty in Corruption Crime

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I. INTRODUCTIN

The journey of the State of Indonesia from the beginning to independence has an

ideology in running the government of Pancasila and the 1945 Constitution, both of which

are the highest source of law in Indonesia, all of the life of the State of Indonesia is governed

by written law to achieve the legal objectives of justice, and benefit, as contained in the

formulation of the 1945 Constitution Article 1 paragraph (3) which states that the State of

Indonesia is a legal State.1

In connection with that the source of law in principle is the authority of the body that

makes a policy, namely the legislative body which has constitutional duties in compiling a

legal source which will later become a law and apply to carry out life in the nation and state.

The policy that I mean, is related to criminal law policy, criminal law policies are often

termed criminal law politics.

According to Sudarto, the criminal law policy is: In a narrow sense, it is the whole

principle and method that is the basis of the reaction to the violation of the law in the form of

a criminal. In a broad sense, is the overall function of the law enforcement apparatus,

including the workings of the court and police. And in the broadest sense, is the overall

policy carried out through legislation and official bodies, which aims to uphold the central

norms of society.2

The criminal policy itself is essentially a business or an effort to overcome a crime in

order to provide protection to the community in improving the welfare, in a policy, especially

the criminal contained stages named with the stage of formulation (Legislative Policy) in a

policy specifically contained in the criminal stages are named with formulation stage

(Legislative Policy).

Formulation policy is the stage of law enforcement or early stages and a source of

foundation in the concrete process for subsequent criminal law enforcement, namely the stage

of application and execution.3 The existence of capital punishment in the principal penalty in

the Criminal Code becomes a serious concern in the handling of a crime and violation in

Indonesia, as the final step to resolve a powerful criminal act as a deterrent effect to the

perpetrator.

If you look at the application of the system of capital punishment in Indonesia, there

are still fears in the policy stage of its execution that is not so repressive in law enforcement

as a step forward so that it does not continue to be carried out by individuals or groups, as in

the case of corruption which has caused billions of trillions, this is a matter of talking in the

midst of society because it is carried out continuously until now.

Formulation of Law Number 31 Year 1999 of Jo Law Number 20 Year 2001

Concerning the Eradication of Corruption, namely: In Article 2 paragraph (2), it reads: In the

case of corruption as referred to in paragraph (1) certain, capital punishment can be imposed,

and in the explanation of Article 2 paragraph (2). What is meant by "certain circumstances"

in this provision is the circumstances which can be used as a reason for criminal liability for

the perpetrators of corruption, ie if the crime is committed against funds intended for the

1 Indonesia, the 1945 Constitution 2 Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana Perkembangan Penyusunan Kosep KHUP

Baru, Kencana, Jakarta, 2010, p. 3 3 Syamsul Hidayat, Pidana Mati di Indonesia, Genta Press, Yogyakarta, 2010, p. 69-70


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prevention of hazards, natural disasters, and the prevention of widespread social unrest,

overcoming the economic and monetary crisis, and repeating criminal acts of corruption.4

This particular situation is reaping the consideration of legal experts, as suggested by

Andi Hamzah in his book entitled Eradicating Corruption Through National and International

Criminal Law, according to him certain circumstances are not in accordance with the

Indonesian criminal law system which all formulations of offenses must be in the form of

definitions, must include in the formula not in the explanation.5

Should the members of the honorable council in formulating a policy to be more

assertive in formulating Article by Article, because according to the authors it is impossible

for someone to commit corruption as described in such circumstances, unless someone is

betrayed to the State of Indonesia.

The State of Indonesia is a legal state must uphold the values and legal norms

mandated in Pancasila and the 1945 Constitution as the philosophy of nation and state must

reflect the firmness and justice in giving sanctions firmly and seriously because the criminal

act of corruption including acts categorized as extra ordinary crime or extraordinary crime,

the sanctions applied must also be extraordinary, if necessary with the sanction of capital

punish to the author, it is okay to temporarily override the human right which has always

been the reason for the elimination of capital punishment in corruption, rather than the

corrupt perpetrators of the state and people for themselves. The authors conclude that the

greatest possibility to date has never been in the criminal case of the death of corruptors in

Indonesia is the legislative policy that is still less assertive in formulating the intent and

purpose of a legislation, so that corruptors always survive the threat of capital punishment.

Therefore, based on the description of the author feel interested to examine the Policy

Formulation of Criminal Deaths in Criminal Acts of Corruption.

Formulation of the problem:

1. Formulation of the Death Penalty System in Article 2 paragraph (2) of Law Number 31

of 1999 of Law Number 20 of 2001 concerning Eradication of Corruption.

2. Theoretical Aspects of the Death Crime System in Corruption in Indonesia.

II. RESULT AND DISCUSSION

Formulation policy in the Law of Corruption Eradication in the State of Indonesia

has been changed several times since the enforcement of Military Rule Number

PRT/PM/011/1957 on Corruption Eradication and then replaced by the Armed Forces of

Central Army Rule No. PRT/PEPERPU/013/1958 about Investigation, Prosecution and

Inspection of Corruption, Crime and Property Ownership, and subsequently exit Government

Regulation in Lieu of Law Number 1 Year 1961, subsequently replaced by Law Number 3

Year 1971 which subsequently replaced by Law Number 31 of 1999 which later changed

again, namely Law Number 20 of 2001.6

Legislative policy or also referred to as legislation policy is the first step in

functional crime prevention can be viewed as part of crime prevention was planning and

mechanism, as stated in the legislation covering:

4 Indonesia, Law Number 31 Year 1999 Jo of Law Number 20 Year 2001 on Corruption Crime 5 Andi Hamzah, Pemberantasan Korupsi Melalui Hukum Pidana Nasional dan Internasional, Raja Grafindo,

Jakarta, 2005, p.77 6 Chaerudin et al, Strategi Pencegahan & Penegakan Hukum Tindak Pidana Korupsi, Refika Aditama,

Bandung,2009, p.17


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1. Planning or policy regarding what is prohibited;

2. Planning or policy on what sanctions can be applied to the perpetrators (whether in the

form of criminal or acts)

3. Planning or policy concerning procedure or mechanism of criminal justice system in the

framework of law enforcement7

That the cause of the amendment in the Act is because the previous Law still views

the Criminal Act of Corruption only has systemic impact on the economy of the State

violating the constitutional mandate of Pancasila and the 1945 Constitution alone, and the

legal basis used in formulating the formulation policy the authors think is still less perfect

because of the inclusion of executive policy to legalize the formation of a law but the

executive position is only given the right to draft the Act, even though both tasks have been

mandated expressly in the constitution and should be the legal basis.

Different after the amendment of Law Number 20 Year 2001, the interpretation of

corruption crime is studied more broadly, the meaning here is the impact of the various

aspects of the life of the nation and the state, and the legal basis used has a good coordination

line between the policies legislative and executive branches in order to create and enact the

Corruption Eradication Act better and directed the duties and authorities of both policies.

When associated with the Theory of Criminal Policy. Whereas the policy or

efforts to overcome crime in their rights is an integral part of the efforts to protect the

social defense community and efforts to achieve a prosperous social welfare community.

Therefore, it can be said that the ultimate goal or the ultimate goal of criminal politics is,

the protection of society to achieve prosperity.

Following are the forms and types of corruption, including the following:

1. Against law to enrich themselves, others or corporations and may harm the State's

finances and the economy of the State;

2. Abusing authority for self, others or a corporation that may harm the State's finances or

the economy of the State;

3. Bribe public servants;

4. Giving gifts to civil servants because of their position;

5. Civil servants accept bribes;

6. Civil servants receive gifts related to their position;

7. Bribe a judge;

8. Bribe advocates;

9. Judges and Advocates accept bribes;

10. Civil servants embezzle money or allow embezzlement;

11. Civil servants falsify books for administrative checks;

12. Civil servants undermine evidence;

13. Civil servants help others damage evidence;

14. Civil servants extorting;

15. Civil servants extort other employees;

16. Contractors cheat;

17. Project supervisors allow fraud;

18. The TNI / POLRI counterparts cheat;

19. Supervisors of the TNI / POLRI counterparts commit fraud; 7 Muladi dan Barda Nawawi Arief, Teori-Teori dan Kebijakan Pidana , Alumni, Bndung, 1994, p. 198.


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20. Recipients of TNI / POLRI goods allow fraud;

21. Civil servants grab land of the State so as to harm others;

22. Civil servants participate in the procurement they administer;

23. Civil servants receive gratuities and do not report to the KPK;

24. Block the examination process;

25. Banks that do not provide information on the suspect's account;

26. Witness or expert who does not provide information or give false information;

27. Persons holding secret positions do not provide information or provide false

information;

28. Witnesses who disclose the reporter's information.8

The existence of the death penalty in the Act on Eradicating Corruption, according to the

author has a goal in the effort to tackle corruption crimes in Indonesia. As the purpose of

punishment put forward by Wirjono Prodjodikoro, are:

a. To frighten people into not committing crimes, both to scare people (generale

prevantie). Nor does it scare certain people who have committed crimes, so that in the

future they do not commit crime again (special preventive).

b. To educate or improve people who have indicated that they are committing crimes in

order to be good people, so that they are beneficial to society.9

Based on the opinion of the expert if the author associate with the theory of

punishment has a resemblance to the explanation of Relative Theory, as the explanation is the

purpose of punishment is to prevent the occurrence of violations of the law. Prevention or

prevention is aimed at the community with the aim that the community does not commit a

crime or violation. In addition to being shown to the community, prevention has a purpose so

that the convict does not repeat the actions he has done.

The author's analysis has the main objective of applying capital punishment to

corruptors, namely to destroy or to kill the corrupt character inherent in the elements of

government who have betrayed the oath of office obtained from the people and if the death

penalty is really applied as a law enforcement solution explicitly, in essence will have a

significant impact on the reduction of corruption in Indonesia.

The system of capital punishment policy in the formulation of the Article can be

applied on condition, carried out under certain circumstances. This particular situation is

divided into several sections, as the author obtains in the explanation of Law Number 31 Year

1999 Jo of Law Number 20 Year 2001 explanation of this particular situation has previously

been amended from the previous Law, namely:

Specific State Explanations, in Act Number 31 of 1999, are:

Article 2 paragraph (2)

What is meant by "certain circumstances" in this provision is intended as a weighting for the

perpetrators of corruption if the offense is committed when the State is in a state of danger in

accordance with applicable law, in the event of a national natural disaster, as a repetition of a

criminal act of corruption, or when the country is in a state of economic and monetary crisis.

Explanation of certain circumstances, in Law Number 20 of 2001, is:


8 Agus Mulya Karsona, “Pendidikan Anti Korupsi”, Kemendibud, 2011, p. 27-28. 9 Wirjono Prodjodikoro, Asas-Asas Hukum Pidana Di Indonesia, Eresco, Bandung, 1998, p. 18.


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What is meant by "certain circumstances" in this provision is the circumstances that can be

used as a reason for criminal liability for the perpetrators of corruption, ie when the crime is

committed against funds intended for the eradication of hazards, natural disasters, the

prevention of widespread social unrest , overcoming the economic and monetary crisis, and

repeating criminal acts of corruption. 10


What is meant by "certain circumstances" in this provision is intended as a weighting

for the perpetrators of corruption if the offense is committed when the State is in a state of

danger in accordance with applicable law, in the event of a national natural disaster, as a

repetition of a criminal act of corruption, or when the country is in a state of economic and

monetary crisis.

Explanation of certain circumstances, in Law Number 20 of 2001, is:


What is meant by "certain circumstances" in this provision is the circumstances that

can be used as a reason for criminal liability for the perpetrators of corruption, ie when the

crime is committed against funds intended for the eradication of hazards, natural disasters,

the prevention of widespread social unrest, overcoming the economic and monetary crisis,

and repeating criminal acts of corruption....11

If the author is synchronized with Wiyono's opinion in his book entitled Discussion of

Corruption Eradication Act, he states that what is meant by "hazard" in the explanation of

Article 2 paragraph (2) is of course the danger as specified in Law Number 23 PRP Year

1960 concerning Hazard Conditions. Whenever there is a state of a national disaster or

widespread social unrest or economic and monetary crisis as mentioned in the explanation of

Article 2 paragraph (2), until now there is no legislation that can be used as a legal basis to

state the existence of such circumstances. According to him, based on Article 4 Paragraph (1)

of the 1945 Constitution, it is sufficient to issue a decree of the President of the Republic of

Indonesia declaring a national natural disaster or widespread social unrest or a monetary

economic crisis.12

In connection with the description of Article 1 paragraph (1) section (a) of Law

Number 23 Year 1959 concerning the Withdrawal of Law no. 74 of 1957 (State Gazette

No.160 of 1957) and the Determination of Hazard Conditions, as well as the opinions of

Wiyono above, the author believes that the danger situation classified in the Corruption

Eradication Act is not sufficiently clearly linked to the legislation which as a reference of the

danger situation, because the danger state group is categorized as a situation such as riots, and

natural disasters constitute a unity. And the state of danger the authors consider inappropriate

to be separated by riots and natural disasters.

Unlike the repetition of corruption, according to the author the repetition of a crime or

often referred to as recidive, or a person who has been convicted of something offense,

commits another act that may be punished.

10 Indonesia, Elucidation of Law Number 31 Year 1999 Jo of Law Number 20 Year 2001 Concerning the

Eradication of Corruption. 11 Surachmin dan Suhandi Cahaya, Strategi dan Teknik Korupsi, Sinar Grafika, Jakart ,p. 153. 12 Wiyono, Pembahasan Undang-Undang Pemberantasan Tindak Pidana Korupsi, Sinar Grafika, Jakarta, 2006,

p. 55.


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Likewise the opinion of Wiyono "Repetition" in the explanation of Article 2

paragraph (2) according to him is the same as residency in criminal law, but a period of 5

years as stipulated in Article 486,487,488 of the Criminal Code does not apply to repetition

of corruption as determined in Article 2 paragraph (1).13

The application of the system of capital punishment against corruption actually can be

applied if you see the formulation contained in Article 2 paragraph 2, but it is difficult to

happen because of the exception, namely that certain conditions in the explanation of the Act

certain circumstances are very impossible happens, so that more progressive efforts in the law

enforcement process run by law enforcement officers in eradicating corruption gradually

experience weakness.

In connection with this matter, if the authors compare with the principle of mono-

dualistic balance, in the sense of paying attention to the balance of two interests between the

interests of society and individual interests. This mono-dualistic view is usually known by the

term "Daad dader Strafrecht", namely the criminal law takes into account the objective

aspects of action (daad) and also the subjective aspects of the person making (dader).14

But

unlike corruption crimes that are categorized as extraordinary or serious crimes, the fact is in

law enforcement process in every case that is being tried in the TIPIKOR trials, far from the

realization of the balance between the quality of the act and the type of criminal sanction, due

to the game individuals who put aside the occurrence of the monodualistic balance.

Meanwhile, if the authors link back with the opinion of Satjipto Rahardjo who said,

realizing legal ideas such as justice that became the core of law enforcement. For Satjipto,

law enforcement is not the work of applying law to concrete events, but it is a human activity

with all its characteristics to realize the expectations desired by law.15

Having analyzed thoroughly that in the framework of law enforcement in applying

capital punishment often hindered the cause, is because still formulation policy, that is certain

state phrase in Article 2 paragraph 2 of Law Number 31 Year 1999 Jo of Law Number 20

Year 2001 About Restriction Corruption Crime. In the process of law enforcement that is

more preventive as an effort to overcome a crime, not necessarily by following the provisions

that have been formulated in the legislation in imposing sanction, because in principle the

criminal law enforcement in the judicial system does not seek formal truth, as wide as

possible, for the realization of what is the goal of the law, namely justice, certainty and

benefit to society.

2.1 Theoretical aspect of the system of capital punishment in corruption in Indonesia

Speaking of Aspects, according to a large Indonesian dictionary is the appearance or

interpretation of ideas, problems, situations, and so as to be considered from a certain point

of view. With regard to that aspect that the author will discuss is related to aspects of theory.

The theoretical aspect is born of a hypothesis which is the formulation of the provisional

proposition which must be proved or applied to factors or also compared with other factors

for general conclusion. The study of Theory lies between philosophy and political theory,

and is therefore dominated by the contradictions between the two. The theory takes its

intellectual categories from philosophy, and its ideals of righteousness from political theory.

13 Ibid, 14 Barda Nawawi Arief, Kebijakan Hukum Pidana, Kencana Prenada Media Group, Jakarta, 2008, p. 97. 15 M. Ali Zaidan, Menuju Pembahruan Hukum Pidana, Sinar Grafika, Jakarta, 2015, p. 110.


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The typical contribution of legal theory is in formulating political ideals pertaining to legal

principles.16

In this connection the purpose of the theoretical aspects according to the author is the

way of an expert in providing ideas or ideas that are related to a problem and if related to the

theoretical aspects of the death penalty system is a view of legal experts related to the

criminal system die itself.

The issue of capital punishment has been debated for hundreds of years by scholars

of criminal law and criminology. Death penalty is one of the oldest types of crime, as old as

humanity. Death penalty is also the most interesting criminal form studied by experts

because it has a high value of contradiction or contradiction between those who agree with

those who disagree.17

As for the various views of experts who the author got linked to capital punishment,

there are two views of the pros and cons, following the exposure of such experts, including:

1. Lambroso and Garfalo, argue that capital punishment is an absolute tool in society to

eliminate an irreversible individual;

2. Hazewinkel Suringa, argues that capital punishment is a radical purifier which in every

revolutionary period we can quickly use it;

3. Hartawi A.M. , views the threat and imposition of capital punishment as a social

defense, capital punishment is a social defense to prevent the general public from the

disaster and the danger or threat of great harm that might happen to the community

which has or will result in the distress and disruption of the law in a certain part, then a

good relationship will be recovered by excluding or involving the criminal in society

and realizing it by seizing independence, taking his property and so on;18

While the opinions of experts who contradict capital punishment, among others, are:

1. Beccaria, argues for a contradiction between capital punishment and the state view in

accordance with Contra Social doctrine. He opposes the existence of capital punishment

that is contrary to the Contra Social, because life is something that cannot be legally

removed and killing is reprehensible, because any murder that permits capital

punishment in the Contra Social is immoral and therefore invalid;

2. Ferri, argues that in order to protect people who have had pre-disposition for crime, it is

sufficient to face life imprisonment, not necessary with capital punishment;

3. Roling, argues that capital punishment actually has destructive power, that is if the state

does not respect human life and considers it appropriate to calmly kill one's life, then

there is a great possibility and will also reduce people's respect for human life.19

Then, when referring to Article 6 of the ICCPR, international human rights law still

opens the opportunity for the death penalty especially for the most serious offenses. The

phrase "very serious crimes" brings up a serious debate when the covenant is designed,

because there is no definite measure of even the final definition of what is serious or not.20

16 Ibid, p. 3. 17 Mahrus Ali, Dasar-Dasar Hukum Pidana, Sinar Grafika, Jakarta, 2012, p. 195. 18 Ibid, p. 29-30. 19 Ibid, 20 Abdur Rahim Et al, HUKUMAN MATI Problem Legalitas & Kemanusian, Transisi Institue, Malang, 2015, p.

69.


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In terms of legislation that regulates human rights issues in Indonesia, the regulation

of capital punishment of certain crimes belonging to the most serious crime category in the

Act is clearly not a violation of human rights because both the 1945 Constitution and the Law

No. 39 of the Year 1999 concerning Human Rights recognizes the limitations in the

implementation of human rights. In his case serious perpetrators of crimes with capital

punishment constitute a form of implementation of such restrictions. Their right to life is

limited because in committing crimes they have violated the human rights of others,

especially violating the rights of others. The restriction is exercised solely to ensure the

recognition and respect for the rights and freedoms of others.21

So that if capital punishment can be carried out, it can fulfill the main aspects of the

purpose of punishment, namely:

a. Aspects of community protection

In essence, capital punishment is a crime of taking the life of a convicted person, so by

eliminating the life of the perpetrator, it means stopping the perpetrator from committing

a crime. This means that the death penalty of the community feels that they are protected

and protected from the evil interference of the perpetrator.

b. Aspects of Individual Protection

The aspect of protection against the individual is an implementation of the criminal

philosophy that is now embraced. Ing Oei Tjo Lam argues that the purpose of the

criminal is to repair individuals who have committed criminal acts in addition to

protecting the community.22

Then Criminal dead after the author review of aspects of Pancasila can be obtained

several aspects including the following:

1) The death penalty in the One Godhead aspect

To decipher the matter of capital punishment and the One Supreme God is impossible

without first understanding the Supreme Godhead. According to Muhammad Hatta that

the Almighty Godhead memimipin ideals of our country to organize all that is good for

the people and society. Notonagoro argues that the almighty Godhead is causa prima.

Recognition and belief in God Almighty is practiced by the people of Indonesia, for

almost the entire nation of Indonesia.23

The following Dead Criminal on the teachings of Religion embraced in the State of

Indonesia, including:

(a) In Religion Islam recognizes Qishash, in Al-Quran Surah Al Baqarah verse 178,

which reads: '' If those who believe, are obliged upon you according to qishash

because murder, independent with freedom, sahaya with sahaya;24

(b) In Christianity Hazewinkel-Suringa justifies the death penalty of Christianity by

basing its views on the Old Testament Scriptures, where it is said oog om oog, tand

om tand (Ganesius 9: 6; Exodus 21, 24);25

21 Satya Arinanto, Sejarah HAM dalam Presfektif Barat, dalam E. Shobirin Nadj dan Naning Mardiniah

(Editor), Diseminasi Hak Asasi Manusia : Prespektif dan Aksi, Cesda LP3ES, Jakarta , 2000, p. 6. 22 Syamsul Hidayat, Op.cit, p. 70 23 Andi Hamzah dan Sumangelipu, Loc.cit, p. 70 24 Ibid, 25 Ibid, p. 71.


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(c) In Buddhism, contained in Samyutta Nikaya I: 227, it is stated that: "In accordance

with the seed which has been sown, so the fruit which he shall harvest, the maker of

good will obtain good, the evil-doer will he pluck the evil also, seed-seed and you

too will feel the fruits of it ''. Based on the Buddhist teachings it contains an

understanding that people who kill will get karmanya, ie capital punishment.

(d) In Hinduism, in Vishnu Smriti, the Ancient Law of Hinduism, it is stated that:

''Great criminals should be beats to let the king put to death those who forge royal

edicts, and those who forge (private) documents. Likewise poisoners, incendiares,

robbers, and killer, of women, children, or men. (Free translation: '' Serious crimes

must be punished by death, allow the king to execute people who falsify royal

decrees, and personal documents. Likewise, those who purify, burn buildings,

robbers and people who kill good women, children or men). The above explanation

shows that the teachings of Hinduism recognize the existence of capital punishment

as a punishment for serious crimes.26

2) Death Penalty in Humanitarian Aspects

The death penalty can be used as a radical tool to prevent acts that are beyond the

boundaries of humanity for the realization of the ideals of Indonesian socialism society.

Rachmad Djatmika argues that capital punishment does not contradict humanity,

because the basis of criminal justice is a humanity that guards arbitrary bloodshed.27

3) Dead Criminal in Aspect of Nationality

Notonagoro argues that nationality is a limited unity in Indonesia in the sense of politics

or state. While Muhammad Hatta felt that our country Indonesia is one or can not be

divided. The unity of Indonesia reflects the composition of the national state which has

the pattern of Bhineka Tunggal Ika (Unity in Diversity), united in various tribes whose

limits are determined in the Proclamation of Indonesian Independence on August 17,

1945. If the two accounts of nationalism are connected with the matter of capital

punishment, it can be deduced that capital punishment can be used a tool to prevent

rebellion that threatens Indonesian unity.28

4) Death Penalty in the Aspect of Democracy (Democracy)

Drijarkoro views democracy as a principle that causes citizens to respect each other,

respect, accept, and cooperate in unity, so that society can act as a subject, which

organizes common interests. According to Mohammad Hatta democratic principles

(Democracy) create a just government that is done with a sense of responsibility, to

make the best possible Indonesian Democracy covering Political Democracy, and

Economical. Any leader who runs a dictatorial government that tramps upon popular

principles, so that society can not act as a subject that holds common interests, and no

just government is created, if the government is overthrown always people demand that

it be sentenced to death. That the death penalty is not in conflict with the people, since it

was a criminal code used to suppress democracy, must be used against the remnants of

anti-democratic groups.29

5) Death Penalty in the Aspect of Social Justice

26 Rodliyah, Pidana Mati Terhadap Perempuan (Suatu Kajian Perbandingan), Arti Bumi Intaran, Yogyakarta,

2014, p. 155. 27 Andi Hamzah dan Sumangelipu, Op.Cit, p. 73-74. 28 Ibid, p. 75 29 Ibid, p. 77.


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According to Mohammad Hatta Social Justice is justice that is evenly distributed in all

fields of life, in the economic, social and cultural fields that can be felt by the people.

Between capital punishment and social justice is not a conflict because the principle of

capital punishment is social justice based on equality of rights. 30

In connection with the above description, if the author analyzes that the aspect of

capital punishment is in essence, is a sorrow imposed on the perpetrators of crimes that are

categorized very extraordinary because it has a very significant impact on the survival of the

nation and state, so that Represif efforts as a solution to give effect deterrent in handling the

crime in question.

From the aforementioned problems, it would be urgent to reformulate the theoretical

approach to the death penalty that has so far developed in Indonesia, which should also be

answered by scholars and legal practitioners. One that can be used as a reference in this

problem is combining a progressive legal approach that puts the interests of society as the

goal of the application of the law.31

Progressive law places an emphasis on the importance of legal actors to recover

against the application of law. The perpetrators of the law must have empathy and concern for

the suffering experienced by the people and this nation, so that the interests of the people

become the point of orientation and the ultimate goal of the implementation of the law. In the

context of the death penalty, it becomes very important when it turns out its implementation is

seen as not providing a solution to the crimes that exist. In the absence of a correlation between

the deterrent effect and the death penalty, the extent of legal abuses in execution, as well as

attempts to reform the penal system in Indonesia, it is important to include progressive law as a

tool of policy analysis and formulation. The progressive legal approach becomes relevant

because it necessitates the law to be at a constantly changing point in accordance with the needs

of society, in addition to its nature which is also relevant to the interests of the people who are

the subject of the law.32

Progressive law aims to answer the problem of "elitism" in law, so that answers to the

many cases of capital punishment that still hold discrimination and selective cuts can be

overcome by this legal approach. The tendency is later, whether the death penalty is still flat or

does not have to be collided with the interests of the community itself, as much as the demands

of the community for the resolution of corruption cases, then the law should then answer the

claim by carrying out fair and equal prosecution. For that reason, in an effort to build a good

and effective criminal system, especially related to the death penalty, it is not enough to focus

only on the weight of a crime, but more than that, law enforcement is needed that can capture

the meaning of the rule of law in a good and intelligent way.33

III. CONCLUSION

Whereas the intent of the legislative policy establishes a formulation on the Corruption

Eradication Act, more precisely in the formulation of Article 2 paragraph 2 which says that the

Criminal of Dying may be imposed in certain circumstances, has a reason that is because its

30 Ibid, 31 Rahardjo, Satjipto, “Menjalankan Hukuman dengan Kecerdasan Spiritual”, Kompas December 30, 2002. 32 Samsudin. “Hukuman Mati di Indonesia Studi Perbandingan Hukum Positif dan Hukum Islam dalam

Tinjauan Humanisme,” Jurnal Kajian Hukum Islam. vol. 1, no. 2 (Desember 2016) : p. 29-30. 33 Ibid,


56 www.doarj.org

actions are categorized as extraordinary crimes (extra ordinary crime), so the most serious

sanction in the form of capital punishment is the most appropriate step applied as an effort to

overcome it. However, the death penalty cannot occur if the criminal act of corruption is not

done under certain circumstances, and vice versa, so that this becomes one of the obstacles in

the application of capital punishment due to factors of certain circumstances. The authors

assume this particular situation should not be a benchmark in giving penalty sanctions against

corruptors who have harmed the State's finances by grabbing the people's right to be enjoyed by

him and his own family without considering the things worthy of busy who are competing to

earn a fortune with hard-nosed tired. The legislative body should in making and amend a

formulation from Article one to other Article in a law so as to more consider again the sequence

of consequences caused by the actions of corrupt, so as not to seem futile in using the people's

mandate to take advantage of personal interests and groups alone without seeing the significant

impact of corruption itself, if the death penalty can actually be imposed on criminal acts of

corruption by disregarding the "certain circumstances" in Article 2 paragraph 2, the hope of

legal certainty and the implementation of the death penalty policy against corruptors will be

realized to achieve the ultimate legal objectives as mandated in Pancasila and the Constitution

of the Republic of Indonesia.

Based on various Theoretical Aspects of capital punishment system in corruption crime

among others that is terrorist aspect in Human Rights which most assume that capital

punishment is contrary to human rights, but international human rights itself does not question

the capital punishment for serious crime category, and it must be ratified by the State Indonesia

that if a serious crime is appropriate to be given the punishment of capital punishment as well

as corruption crimes that have been much harm to the State and not because the human rights

factor of capital punishment against corruptors is reluctant to be implemented. Although many

domestic and foreign legal experts who are pros and cons of the threat of capital punishment

system, is a natural thing because the doctrine of expert opinion is not always the same between

one another. The death penalty when viewed in the aspect of Pancasila as the ideology of the

nation itself justifies and acknowledges that after the author of the analysis of the five values of

Pancasila, namely divinity, humanity, justice, populist and unity is not found a prohibition to

apply death penalty. Similarly, in the Criminal Code (KUHP), capital punishment is still kept in

the main crime, namely in Article 10 of the Criminal Code and the Draft of the Criminal Code

(RKHUP), the death penalty is considered as the maximum solution in the handling of a crime,

in words other death penalty as the last drug as an exception if other sanctions are not effective,

such as the handling of corruption, because it is categorized as an extraordinary act or

commonly known as an exstra ordinary crime, the criminal act of corruption deserves to be

applied a special or eksepsional threat that is, with the application of capital punishment as is

the case in the developed countries out there, it is necessary to be firmly stressed by the

stakeholders of the law enforcement apparatus to prioritize a more progressive legal system in

order to narrow the space for corrupt people to flourish, which in turn will have implications

for, this is needed it is a serious concern in addressing the problem of corruption in the State of

Indonesia because if it is left without serious attention, it is feared that it will continue to drag

on without clarity.


57 www.doarj.org

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