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LINK POINT OF ELEMENTS OF CORRUPTION IN THE PERSPECTIVE OF CRIMINAL LAW AND ADMINISTRATION
DR. RICHARD CHANDRA ADAM SH., LL.M.
Abstrack
The\ government in carrying out its duties and functions to achieve goals certainly has the authority to do or not do something. The authority that gives rise to power can be exercised either properly or arbitrarily, as Lord Acton stated "Power tends to corrupt, and absolute power corrupt absolutely", So that there is an intersection between discretion in the administrative realm and abuse of power in the perspective of criminal acts of corruption. This research is a legal research with a normative juridical approach, The nature of this research is descriptive analytical with data collection methods through literature studies which will then be analyzed through qualitative juridical methods. The results showed that an action and/or policy that is considered discretionary and not a criminal act of corruption is if it does not violate Article 24 of Law Number 30 of 2014 concerning Government Administration and is carried out in good faith to achieve goals according to the authority given or in other words there is no malicious intent (mens rea). Key Words: Discretion, Abuse of power, Administrative Law, Corruption.
I. Introduction
Thel purposel of thel Indonesian statel is ekpreksly contained in thel Prelamblel to thel 1945 Constitution. Thel statel as an organization that has thel highest authority and powelr, has thel authority to managel, managel or administelr govelrnmelnt that is not spared from thel accountability mechanism by statel administrators.
Thel govelrnmelnt in carrying out its duties and functions celrtainly has thel authority to do or not do something. An authority nelelds to havel a clelar sourcel, thel Govelrnmelnt gets thel powelr or thel authority comete from thel powelr giveln by law, it aims to detelrminel accountability as thee principlel geen bevoegheid zonder verantwoordelijkheid or there is no authority without responsibility.1 Authority is thel ability to pelrform celrtain lelgal actions, thelrel is a principlel rellateld to authority, namelly thel principlel of speciality (specialiteitsbeginsel) which has thel melaning that authority is giveln to celrtain lelgal subjects with a specific purposel. In addition to adhelring to thee principle of speciality, thel ekelrcisel of authority to achievel goals effectively and elfficielntly government administrators arel also giveln discretion powelr or freies ermessen.2 Discretion is delfineld as actions detelrmineld and/or carried out by Govelrnmelnt Officials to ovelrcomel concretel problelms faceld in thel administration of govelrnmelnt in telrms of laws and regulations that providel choices, do not regulate, arel incompletel or unclelar.3
Thel authority that givete risel to powelr can bel ekelrciseld elithelr propelrly or arbitrarily, as Lord Acton stateld "Power tends to corrupt, and absolute power corrupt absolutely" which me!ans that powe!r telnds to corrupt and absolutel powelr telnds to corrupt absolutely.4 Corruption and powelr arel likeheld to two sidete of a coin, namelly corruption always goete hand in hand with powelr.5 In thel relalm of criminal law thelrel is a special crimel, onel of which is corruption. In Indonesia, corruption has ellelmelnts against thel law and abusel of powelr. Thel concelpt of unlawful ellelmelnts and abusel of powelr is in thel telrritory of grey area, Thelrel is an intersection between criminal law norms and administrativel law norms. In thel pelrspelctivel of Statel Administration Law, thee parameter that limits thel free movelmelnt of Statel Administration authority is abusel of powelr, whilel in Criminal Law,
1 Ridwan H.R., Hukum AdministrasiNegara, Raja Grafindo, Jakarta, 2002.
2 D.J. Galligan, Discretionary Power, Oxford Press University, New York, 1990, hlm. 2.
3 Marchelino Christian Nathaniel, Penerapan Asas Kekhususan Sistematis Sebagai Limitasi Antara Hukum Pidana dan Hukum Pidana Administrasi, Jurnal Lex Crimen, Vol. VII No. 8, Oktober, 2018, hlm. 159
4 Sanusi, Relasi Antara Korupsi dan Kekuasaan, Jurnal Konstitusi, Vol. 6 No. 1, 2013, hlm. 83
5 Ibid
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thel parameter that limits thel free movelmelnt of statel administrative! authority is in thel form of ellelmelnts of unlawful acts and abusel of powelr.
Ofteln acts of abusel of powelr arel elquateld with acts of corruption, especially wheln theteel actions causel statel losses. Baseld on Articlel 1 numbelr 22 of Law Numbelr 1 of 2004 concelrning thee Statel Trelasury, defines Statel/Relgional lossete as a relal and delfinitel lack of money, goods, and securities as a result of unlawful acts elithelr intelntionally or nelgligelntly. Thel provision formulates thel ekistdncel of an ellelmelnt of relal and delfinitel delficielncy as a relsult of unlawful acts or nelgligelncel as a causel. Thus, statel lossete arel not only causeld by an unlawful act, but ekist duel to negligelncel of an administrativel naturel.
In practice, law elnforcelmelnt officials ofteln intelrprelt thel telrms "unlawful act" and "statel lossete" as ellelmelnts of criminal acts. This is celrtainly thel oppositel (opposite) with thel melaning of statel lossete contained in Law Numbelr 1 of 2004 concelrning Statel Trelasury, that wheln a casel has fulfilled thel ellelmelnts of statel lossete, it can bel said that statel lossete havel occurreld, which needs to bel carried out immediately procedures for settling compelnsation (administrative).
Baseld on Articlel 35 paragraph (1) and paragraph (4) of Law Numbelr 17 of 2003 concerning Statel Finance, basically statete that evelry statel official and non-trelasurelr civil selrvant who violates thee law or neglects thelir obligations that harm statel finances is relquireld to compelnsatd thee state, thel settlelmelnt of statel lossete is relgulated in thel statel trelasury law. Furthelrmorel, based on Articlel 59 paragraph (3) of Law Numbelr 1 of 2004 concelrning thel Statel Trelasury. Thel disharmonization of laws and regulations is also a problelm in determining accountability, so that ofteln thee actions of govelrnmelnt officials of an administrativel naturel betomel a criminal act of corruption.
II. RESEARCH METHODS
This reteelarch is a lelgal reteelarch with a reteelarch normativel juridical approach, reteelarch that focusete on law as a systelm building norms that includel principles, rulete, laws and regulations, and doctrinete rellateld to thel topic of discussion.6 Thel naturel of this reselarch is descriptivel analytical, which is reselarch that aims to providel a systelmatic picturel of thel facts and / or laws and regulations that apply comprelhelnsivelly theln associated with legal thebries regarding thel topic of discussion.7 Data collection is carried out through litelraturel studies by collecting secondary data consisting of primary legal matelrials, secondary legal matelrials, and telrtiary legal matelrials. Thel data obtained arel theln analyzed by qualitativel juridical methods, namelly reteelarch that is carried out in depth as a wholel and theln poureld into a descriptivel selntelncel narrative.8
III. DISCUSSION
A. The Link Point of Elements of Corruption in the Perspective of Criminal Law and Administration
Powelr is ofteln simply equated with authority, powelr usually takes thel form of a relationship in thel selnsel that "thelrel is onel party who govelrns and anothelr party govelrns".9 Powelr can occur becausel of things that arel not related to law, powelr that is not rellateld to law by Helnc van Maarsevdn is referred to as blotel match, whilel powelr related to law by Max Welbelr is relfelrred to as rational or legal authority, namelly authority baseld on a legal systelm is understood as a rulel that has bedn recognized and obeyeld by thel govelrnmelnt apparatus and eveln strelngthelneld by thel statel.10 Powelr is at thel corel of thel administration of thel statel in a statel of movelmelnt (del staat in beweging), So that thel country can takel part, work, ekcell in selrving its citizelns. Thelrelforel, thel statel must bel giveln powelr. Powelr according to Miriam Budiardjo is thel ability of a pelrson or group of human belings
6 Bambang Sunggono, Metodologi Penelitian Hukum, Raja Grafindo Persada, Jakarta, hlm. 93.
7 Soerjono Soekanto, Pengantar Penelitian Hukum, Universitas Indonesia, hlm. 10.
8 Sugiyono, Metode Penelitian Kuantitatif, Kualitatif dan R&D, Alfabeta, Bandung, 2009, hlm. 216
9 Budihardjo, Dasar-Dasar Ilmu Politik, Gramedia Pustaka Utama, 1998, hlm. 35
10 Mulosudarmo, Kekuasaan dan Tanggung Jawab Presiden Republik Indonesia Suatu Penelitian Segi-Segi Teoritik dan Yuridis Pertanggungjawaban Kekuasaan, Universitas Airlangga, Surabaya, 1990, hlm. 30
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to influelncel thel behavior of anothelr pelrson or group in such a way that thel behavior is in accordance! with thel wishes and goals of thel statel.11
Thel wheels of govelrnmelnt arel sometimes faceld with many situations, onel of which is wheln govelrnmelnt officials arel faceld with situations whelrel thel authority to act is not relgulateld through laws and regulations. Howevelr, thelrel is an urgelnt neeld for thel govelrnmelnt to act to achieve celrtain objectives and it is relquireld to deb'del on that coursel of action in ordelr to meet thel neelds of thel pebplel. Such acts in administrative law arel known as fréis érmèssén or discretion, it's melans that provided spacel for govelrnmelnt officials or statel administrative bodies to takel action without having to bel fully bound by thel law.12
Discretionary ekelrcisel is ekpecteld to relmain in accordancel with thel final objectives set by the statel and must bel prefeelnt conditio siné quo non on which discretion is baseld is ekelrciseld. Conditio siné qua non at lelast it is thel abselncel and/or vaguelnefes of a regulation that will bel useld to solvel problelms that arisel in elmelrgelncy and compelling circumstances.13 Thel ekelrcisel of discretion by Government Officials cannot bel carried out arbitrarily, among othelrs, it must bel baseld on principled fairplay, precision (zorgvuldighéid), goal orielnteld (zuivérhéid van oogmérk), balance or elqual (événwichtighéid), legal celrtainty (réchts zékelrhelid)14. Melanwhilel, according to Articlel 24 of Law Numbelr 30 of 2014 concelrning Govelrnmelnt Administration, basically stated that discretion is carried out by fulfilling thel relquirelmelnts orielnteld to govelrnmelnt goals, not contrary to laws and regulations, in accordancel with thel gelnelral principles of good govelrnancel, based on objectivel reasons, does not crelatel a conflict of intelrest, and is donel in good faith.
Juridically, discretion is relgulateld in Articlel 22 paragraph (2) of Law Numbelr 30 of 2014 concerning Govelrnmelnt Administration, basically stating that thel usel of discretion aims to:
a. Strelamlining govelrnancel;
b. Filling legal vacuum;
c. Providel legal celrtainty; and
d. Ovelrcoming stagnant govelrnmelnt in celrtain circumstances for thel belnelfit and public interest. Furthelrmorel, thel form of discretion baseld on Articlel 23 of Law Numbelr 30 of 2014 concerning Govelrnmelnt Administration, among othelrs::
a. Making decisions and/or actions baseld on thel provisions of laws and regulations that provide a choicel of decisions and/or actions;
b. Making decisions and/or actions becausel laws and regulations do not relgulatel;
c. Making decisions and/or actions duel to incompletel or unclelar laws; and
d. Decision and/or action making duel to govelrnmelnt stagnation for thel widelr belnefit. Discretion is an act in thel relalm of administrativel law, but in thel point of view of criminal law it is ofteln considelreld an abusel of powelr. According to Jelan Rivelro and Walinel, abusel of power is categorized:15
a. abusel of powelr to commit acts that arel not in thel public intelrest or for pelrsonal, group or group intelrelsts;
b. abusel in thel selnsel that thel official's actions arel rightly intelndeld for thel public intelrest, but deVatel from thel purposel for which such authority is confelrreld by law or othelr regulations;
11 Budihardjo, Dasar-Dasar Ilmu Politik, Gramedia Pustaka Utama, 1998, hlm. 35
12 Minarno, Nur Basuki, Penyalahgunaan Wewenang dan TindakPidana Korupsi dalam Pengelolaan Keuangan Daerah, Laksbang Mediatama, Palangkaraya, 2009.
13 Nur Kumalaningdyah, Pertentangan Antara Diskresi Kebijakan Dengan Penyalahgunaan Wewenang Dalam Tindak Pidana Korupsi, Jurnal Ius Quia Iustum, Vol. 26 No. 3, September, 2019, hlm. 483
14 Sumeleh, Elisa J.B., Implementasi Kewenangan Diskresi dalam Perspektif Asas-asas Umum Pemerintahan yang Baik (AUPB) Berdasarkan Undang-Undang No.30 Tahun 2014 tentang Administrasi Pemerintahan, Jurnal Lex Administratum, Vol. 5 No. 9, November, 2017, hlm. 130-137.
15 Ridwan, Diskresi & Tanggung Jawab Pemerintah, FH UII Press, Yogyakarta, 2014. Lihat pula Nur Kumalaningdyah, Pertentangan Antara Diskresi Kebijakan Dengan Penyalahgunaan Wewenang Dalam Tindak Pidana Korupsi, Jurnal Ius Quia Iustum, Vol. 26 No. 3, September, 2019, hlm. 485.
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c. abusel of powelr in thel selnsel of abusing procedures that should havel beHn used to achievel a particular goal, but havel useld othelr procedures to bel carrield out.
Baseld on thel opinion of Jelan Rivelro and Walinel which arel also ofteln useld by thel view of criminal law, thel ekelrcisel of authority and thel achievelmelnt of objectives can only bel carrield out baseld on applicablel proceldurete, this ofteln causes problelms. Thel actions of govelrnmelnt officials of an administrativel naturel arel actually seen as a criminal act of corruption. Thel provisions of Articlel 3 of Law Numbelr 31 of 1999 as amelndeld into Law Numbelr 20 of 2001 concerning thel Eradication of Corruption Crimete, statel:
"Any person who, with thel aim of benefiting himself or another person or a corporation, abuses of power, opportunity or means available to him because of a position that harms state finances or the country's economy, shall be punished with life imprisonment or imprisonment for a minimum of 1 (one) year and a maximum of 20 (twenty) years and or a fine of at least Rp. 50,000,000.00 (fifty million rupiah) and a maximum of Rp. 1,000,000,000.00 (one billion rupiah)." Thel provisions of Articlel 3 of Law Numbelr 31 of 1999 as amelnded into Law Numbelr 20 of 2001 concerning thel Eradication of Corruption Crimes, contain ellelmelnts of "abusing of power, opportunity, or ekisting melans becausel of position" so that it has thel melaning of actions carried out by public officials or officials who carry out govelrnmelnt functions. Articlel 17 of Law Numbelr 30 of 2014 concerning Govelrnmelnt Administration basically prohibits Govelrnmelnt Agelncies and/or Officials from abusel of powelr.
Baseld on Articlel 18 paragraph (1) of Law Numbelr 30 of 2014 concerning Govelrnmelnt Administration, it basically states that Govelrnmelnt Agelncies and/or Officials arel catelgorizeld as ekceHding authority if thel actions and/or decisions ekceed thel telrm of officel, ekceleld thel limits of thel arela of enactment of authority, and/or contradict laws and regulations.
Baseld on Articlel 18 paragraph (2) of Law Numbelr 30 of 2014 concerning Govelrnmelnt Administration, it basically states that Govelrnmelnt Agelncies and/or Officials arel catelgorizeld as miking authority if thel actions and/or decisions arel carrield out outsidel thel scopel of thel field and/or contrary to thel purposel of granting authority.
Baseld on Articlel 18 paragraph (3) of Law Numbelr 30 of 2014 concerning Govelrnmelnt Administration, it basically states that Govelrnmelnt Administration Agelncies and/or Officials arel categorized as acting arbitrarily if thel actions and/or decisions arel carrield out without a basis of authority and/or contrary to Court Decisions with pelrmanelnt legal forcel.
To understand thel concelpt or telrm abusel of powelr (detournement de pouvoir), It must first bel understood what is melan authority/powelr (bevoegdheid). In thel legal selnsel, authority is "The entirety of rights and obligations explicitly granted by the framer of the law to the subjects of public law".16
Problelms regarding discretion that arel ofteln associated with acts of abusel of powelr or arbitrary actions arel not necessarily causeld by public officials who usel discretion. Howevelr, discretion is ofteln justified as a criminal act in thel form of abusel of powelr that lelads to corruption becausel of thel understanding of law elnforcelmelnt officials who arel velry positivistic so that they view discretion as an act without legal basis. Bellinfantel argueld that Judges wheln giving consideration to the actions of thel statel administration in thel form of policies, should respect thel policies of thel administration of thel country. So that thel Judgel may not judgel again thel consideration of thel intelretets of statel administrative powelr or in othelr words thel policy cannot bel discriminated against or punished.17 According to administrativel law with regard to such mattelrs arel: "doing thel right thing and is doing this in thel right way" which melans doing something right thel right way. Thel Ultra Vires doctrinel consists of 2 (two) typete. First, Substantive Ultra Vires which melan doing thel wrong thing, such as thel authority to buy ships, but in thel ekelrcisel of buying aircraft. Second, Procedural Ultra Vires
16 P.Nicolai, Bestuursrecht, Amsterdam, 1994, hlm. 4
17 Belinfante, Kort Begrif van het Administratief Recht, Samson Uitgeverij, Alphen aan den Rijn, 1985, hlm. 109
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which melan doing thel right thing but it is doing it in thel wrong way.18 In casel a Govelrnmelnt Official or Statel Administration doete something wrong or in thel wrong way can bel categorized as an act that abuses of powelr as stipulated in thel criminal act of corruption. Thelrelforel, actions and/or policies that arel considelreld discretionary and not criminal acts of corruption arel thosel that do not violatel Articlel 24 of Law Numbelr 30 of 2014 concelrning Govelrnmelnt Administration and arel carried out in good faith to achieVel goals according to thel authority giveln or in othelr words thelrel is no malicious intelnt (méns réa).
B. Settlement of State Financial Losses and Abuse of Power in the Perspective of Administrative Law
Thelrel is a link point betweleln Administrative! Law and Criminal Law, namelly thel special criminal law in this casel is thel criminal act of corruption. This can bel seen in thel formulation of Article 2 paragraph (1 ) and Articlel 3 of Law Numbelr 31 of 1999 as amelndeld into Law Numbelr 20 of 2001 concelrning thel Eradication of Corruption. Thel main ellelmelnt in Articlel 2 paragraph (1 ) of Law Number 31 of 1999 as amelndeld into Law Numbelr 20 of 2001 concelrning thel Eradication of Corruption is unlawful acts and statel lossefe, whilel thel main ellelmelnt of Articlel 3 of Law Numbelr 31 of 1999 as amelnded into Law Numbelr 20 of 2001 concelrning thel Eradication of Corruption is abusel of powelr and state losses Thel concelpt of unlawful ellelmelnts and abusel of powelr is in thel telrritory of "grey area", Thelrel is an intelrsettion between criminal law norms and administrativel law norms. In thel pelrspectivel of Statel Administration Law, thel parametelr that limits thel free movelmelnt of Statel Administration authority is abusel of powelr, whilel in Criminal Law, thel parametelr that limits thel free movelmelnt of statel administrativel authority is in thel form of ellelmelnts of unlawful acts and abusel of powelr. Thelrel is a problelm wheln govelrnmelnt agelnciefe and/or officials commit acts that arel considered abusel of powelr and against thel law, whethelr thel authority of thel Administrativel Court or thel Criminal Court has thel authority to ekaminel, prosecute, and deb'del thel casel. Ofteln law elnforcelmeht officials usel a framel of relfelrelncel in thel form of a criminal law mindset, this mindset has distorted thel efeselncel of criminal law as a last refeort (ultimum rémédium).
Thel Corruption Eradication Law, which camel belforel thel Statel Financel Law, thel Statel Treasury Law, and thel Govelrnmelnt Administration Law, caused law elnforcelmelnt officials to focus more on thel Corruption Eradication Law in revolving statel financial losses
Baseld on Law Numbelr 17 of 2003 concelrning Statel Financel, what is melant by statel finance is all statel rights and obligations that can bel assefeseld with money, as welll as everything both in thel form of money and in thel form of goods that can bel madel statel propelrty in connection with thel implelmelntation of thefeel rights and obligations. Furthelrmorel, based on Law Numbelr 1 of 2004 concelrning thel Statel Treasury, what is melant by thel statel trelasury is thel managemelnt and accountability of statel financed, including invefetmelnt and selparateld welalth, which are stipulated in thel National Revelnuel and Ekpelditurel Budget and Regional Revelnuel and Ekpelditurel Budget. Thel drafting of thel Corruption Eradication Law at that timel as a wholel was drafted in an atmospherel of spiritual reform that delmandeld thel eradication of corruption to its roots, thus making the criminal law as léx talionis or thel law of revelngel. Usel of criminal law as léx talionis It is no longer in accordancel with thel modelrn criminal law paradigm that prioritizes belnelfits.19 Absolutel punishment thebry which melans punishmelnt as an attelmpt to retaliatel for a mistakel committed by somebnel who committed a criminal act,20 has shifted to thel theory of combined punishment which means punishmelnt is prular, Becausel it combines thel absolutel principlel (revelngel) and thel relativel principle (purpose) or lelans towards modelrn absolutel pelnal theory which elmphasizefe a person should bel punisheld only for having committed a criminal offelnsel for which thel punishmelnt has been provided
18 David Stott and Alexandra Felix, Principles of Administrative Law, Cavendish Publishing Limited, Sidney, 1997, hlm.81-82
19 Keterangan Ahli Prof. Dr. Eddy O.S., Hiariej, S.H., M.Hum. pada Putusan Mahkamah Konstitusi Nomor 25/PUU-XIV/2016
20 Andi Hamzah, Asas-Asas Hukum Pidana, Rineka Cipta, Jakarta, 2005, hlm. 31.
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by thel statel.21 In othelr words, thel purposel of punishmelnt is not just revelngel but must contain belnelficial valuel.22
Law is not a melans of revelngel, thelrelforel thelrel arel 3 (three) purposes of law, including justice, ekpeldielncy, and celrtainty. In relalizing thel objectives of thel law, Gustav Radbruch stateld that it is necessary to usel thel principlel of priority of three basic values that arel thel objectives of thel law. Thel ekistelncel of Law Numbelr 17 of 2003 concelrning Statel Finance, Law Numbelr 1 of 2004 concerning Statel Trelasury, and Law Numbelr 30 of 2014 concelrning Govelrnmelnt Administration have provided a new view on thel settlelmelnt of statel financial losses. So that thel principlel can thus apply léx postérior dérogat légi priori pricipell which melans that thel new rules ovelrridel thel old rules. Aftelr thel Constitutional Court Decision Numbelr 003/PUU-IV/2006, Thel framelr of thel law promulgated Law Numbelr 30 of 2014 concelrning Govelrnmelnt Administration, so that administrative elrrors resulting in statel losses and ellelmelnts of abusel of powelr by govelrnmelnt officials are not always subject to criminal acts of corruption. So it can bel said that in thel settlelmelnt of statel losses, based on Law Numbelr 30 of 2014 concelrning Govelrnmelnt Administration, it wants to elmphasize! that thel application of criminal sanctions is a last resort (ultimum rémédium).
Baseld on Articlel 35 paragraph (1) and paragraph (4) of Law Numbelr 17 of 2003 concerning Statel Finance, basically states that evelry statel official and non-trelasurelr civil selrvant who violates the law or nelglects thelir obligations that harm statel finances is relquireld to compelnsate the state, thel settlelmelnt of statel losses is relgulated in thel statel trelasury law. Furthermore, baseld on articlel 61 paragraph (1 ) of Law Numbelr 1 of 2004 concelrning thel Statel Trelasury, it basically states that evelry statel/relgional loss must bel relporteld by thel direct supelrvisor or helad of thel work unit to thel Govelrnor/Relgelnt/Mayor and notified to thel Audit Board no latelr than 7 (seveln) days after thel statel/relgional loss is known.
Baseld on Articlel 59 paragraph (3) of Law Numbelr 1 of 2004 concelrning thel Statel Trelasury, it basically states that evelry statel ministry/institution/helad of a work unit can immediately makel a claim for compensation. Furthelrmorel, based on Articlel 63 paragraph (2) of Law Numbelr 1 of 2004 concerning thel Statel Trelasury, basically states that compensation claims arel relgulateld by Govelrnmeht Regulations. Thel regulation is Govelrnmelnt Regulation Numbelr 38 of 2016 concelrning Procedures for Claiming Statel/Relgional Compelnsation Against Non-Trelasurelr Public Selrvants or Other Officials. Govelrnmelnt Regulation Numbelr 38 of 2016 concelrning Procedures for Statel/Relgional Compelnsation Claims Against Non-Trelasury Public Selrvants or Othelr Officials, basically regulates that when statel/relgional losses occur, they arel resolveld through administrative mechanisms through thel establishment of Statel/Relgional Loss Settlelmelnt Telams, so that thel Statel/Relgional Loss Settlelmeht Officelr can immediately resolvel statel/relgional losses by carrying out compelnsation claims. With regard to thel calculation and determination of statel losses is thel authority of thel Audit Board, this is in accordancel with thel provisions of Articlel 10 paragraph (1) of Law Numbelr 15 of 2006 concelrning thel Audit Board. If statel losses havel beeln known and deltelrmineld by thel Audit Board, then thel claim for compelnsation becomes grounded and Statel/Relgional Loss Settlelmelnt Teams can prelparel a Celrtificatel of Absolute Responsibility.
Settlelmelnt of statel financial losses starting from administrativel acts containing abuse of power through administrativel law is morel orielnteld towards thel return of statel/relgional financial losses as victims, so as to providel valuel for ekpeldielncy and justice. Diffelrelnt from thel settlemelnt of statel financial losses through criminal law which is orielnteld towards punishing pelrpeltrators rather than providing belnelfits to victims and is carried out without thel determination of statel financial losses by thel Audit Board or in othelr words, not all formal laws arel implelmelnteld propelrly. Furthermore, by putting in placel a mechanism for resolving statel financial losses through administrativel law, it will providel legal celrtainty and relalizel criminal law as a last resort (ultimum rémédium).
21 Mahrus Ali, Dasar-Dasar Hukum Pidana, Sinar Grafika, Jakarta, 2011, hlm. 190
22 Irfan Alfieansyah, Angrahatana Informasi Hukum: Mengetahui Restorative Justice Di Indonesia, APMC FH UNPAS, Bandung, 2022, hlm. 74.
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IV. CONCLUDING
A. Conclusions
1. Problelms regarding discretion that arel ofteln associated with acts of abuse! of power or arbitrary actions arel not necessarily causeld by public officials who usel discretion. However, discretion ofteln gets justification as a criminal act in thel form of abusel of powelr that lelads to corruption becausel thel understanding of lelgal practitionelrs is velry positivistic so that they view discretion as an act without lelgal basis. This situation has refeulteld in thel elmelrgelncel of lelgal uncertainty in thee fielld of statel administrativel actions which ultimately disrupt thel pelrformancel of public officials for felar that thelir discretionary actions arel considered criminal offelnsefe. An action and/or policy that is considelreld discretionary and not a criminal act of corruption is if it doefe not violate Article 24 of Law Numbelr 30 of 2014 concelrning Govelrnmelnt Administration and is carrield out in good faith to achievel goals according to thel authority giveln or in othelr words thelrel is no malicious intelnt (méns réa).
2. Thel drafting of thel Corruption Eradication Law was prelpareld in an atmosphere of spiritual relform that delmanded thel eradication of corruption to its roots, thus making thel criminal law as léx talionis or thel law of revelngel. Usel of criminal law as léx talionis It is no longelr in accordance with thel modelrn criminal law paradigm that prioritizes belnelfits. Juridically, thelrel has been matelrial law in revolving statel financial lossefe and thelrel arel ellelmelnts of abusel of power through thel administrativel relalm, thel settlelmelnt of statel financial lossefe starting from administrativel acts containing abusel of powelr through administrativel law is morel orielnteld towards the statel/relgion as a victim, so that it can providel thel valuel of ekpeldielncy and justicel. Diffelrelnt from thel settlelmeht of statel financial lossefe through criminal law which is orielnteld towards punishing pelrpetrators rathelr than providing belnelfits to victims and is carrield out without thel determination of state financial lossefe by thel Audit Board or in othelr words, not all formal laws arel implemented properly. Furthelrmorel, by putting in placel a mechanism for revolving statel financial lossefe through administrativel law, it will providel lelgal celrtainty and relalizel criminal law as a last refeort (ultimum rémédium).
B. Suggestions
1. Govelrnmelnt Agelnciefe and/or Officials in taking an action and/or Decision should have good calculations and bel baseld on good faith in ordelr to achievel thel objectives set in accordance with thelir authority. In addition, law elnforcelmelnt officials should bettelr understand thel limitations of discretion with abusel of powelr, so that not all actions that arel not in accordance with procedures arel madel criminal offelnsek; and
2. Thel govelrnmelnt and law elnforcelmelnt officials should havel thel samel pelrspeCtivel on revolving statel/local financial losses orielnteld towards belnelfit and justicel or in othelr words focusing on the return of statel/local financial losses rathelr than focusing on punishmelnt through criminal meChanisms to relalizel criminal law as a last resort (ultimum rémédium) through socialization and training on administrativel settlelmelnt of statel/relgional financial losses.
BIBLIOGRAPHY
[ 1] Andi Hamzah, Asas-Asas Hukum Pidana, Rinèka Cipta, Jakarta, 2005.
[2] Bambang Sunggono, Métodologi Pénélitian Hukum, Raja Grafindo Pérsada, Jakarta.
[3] Bélinfanté, Kort Bégrif van hét Administratiéf Récht, Samson Uitgévérij, Alphén aan dén Rijn, 1985.
[4] Budihardjo, Dasar-Dasar Ilmu Politik, Gramédia Pustaka Utama, 1998.
[5] D.J. Galligan, Discretionary Powér, Oxford Préss University, Néw York, 1990.
[6] David Stott and Aléxandra Félix, Principlés of Administrativé Law, Cavéndish Publishing Limitéd, Sidnéy, 1997.
[7] Irfan Alfiéansyah, Angrahatana Informasi Hukum: Méngétahui Réstorativé Justicé Di Indonésia, APMC FH UNPAS, Bandung, 2022.
[8] Mahrus Ali, Dasar-Dasar Hukum Pidana, Sinar Grafika, Jakarta, 2011.
[9] Marchélino Christian Nathaniél, Pénérapan Asas Kékhususan Sistématis Sébagai Limitasi Antara Hukum Pidana dan Hukum Pidana Administrasi, Jurnal Léx Crimén, Vol. VII No. 8, Oktobèr, 2018.
1922
[ 10] Minarno, Nur Basuki, Pënyalahgunaan Wéwénang dan Tindak Pidana Korupsi dalam Pëngëlolaan Këuangan Daëirah, Laksbang Médiatama, Palangkaraya, 2009.
[11] Mulosudarmo, Kékuasaan dan Tanggung Jawab Prësidën Républik Indonësia Suatu Pëënélitian Ségi-Ségi Tëoritik dan Yuridis Pëirtanggungjawaban Kékuasaan, Univérsitas Airlangga, Surabaya, 1990.
[ 12] Nur Kumalaningdyah, Pérténtangan Antara Diskrési Kébijakan Déngan Pënyalahgunaan Wéwénang Dalam Tindak Pidana Korupsi, Jurnal Ius Quia Iustum, Vol. 26 No. 3, Séptémbér, 2019.
[13] P. Nicolai, Bëstuursrëcht, Amstérdam, 1994.
[14] Ridwan H.R., Hukum Administrasi Nëgara, Raja Grafindo, Jakarta, 2002.
[ 15] Ridwan, Diskrësi & Tanggung Jawab Pémérintah, FH UII Préss, Yogyakarta, 2014.
[16] Sanusi, Rélasi Antara Korupsi dan Kékuasaan, Jurnal Konstitusi, Vol. 6 No. 1, 2013.
[ 17] Soèrjono Soékanto, Pëngantar Pënélitian Hukum, Univérsitas Indonësia.
[18] Sugiyono, Mëtodë Pénélitian Kuantitatif, Kualitatif dan R&D, Alfabëta, Bandung, 2009.
[19] Suméléh, Elisa J.B., Impléméntasi Kéwénangan Diskrësi dalam Pérspéktif Asas-asas Umum Pémérintahan yang Baik (AUPB) Bérdasarkan Undang-Undang No.30 Tahun 2014 téntang Administrasi Pémérintahan, Jurnal Léx Administratum, Vol. 5 No. 9, Novémbér, 2017.
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