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97
Section 8. Science of law
https://doi.org/10.29013/ESR-21-9.10-55-63
Ariman Sitompul, Universitas Dharmawangsa, Indonesia E-mail: [email protected]
Pagar Hasibuan,
University Islam Negeri Sumatera Utara, Indonesia
E-mail: [email protected] Mhd. Syahnan,
University Islam Negeri Sumatera Utara, Indonesia E-mail: [email protected]
THE MORALITY OF LAW ENFORCEMENT AGENCIES (POLICE, PROSECUTOR'S OFFICE, KPK) IN MONEY LAUNDERING WITH THE ORIGIN OF THE CORRUPTION
Abstract. Money laundering and Corruption are classified as extra-ordinary crime that must be eradicated. Eradication of corruption should always be a priority agenda of the government to overcome. In handling must be carried out by some agencies that have the authority about it. In Indonesia, law enforcement in corruption among the Police, the Prosecutor's office and the Corruption Eradication Commission which has been formulated in the Law Number 31 year 1999 on Eradication of Corruption Jo Law Number 20 Year 2001 and Law No. 8 of 2010 on the prevention and eradication laundering money right at the 26 different kinds of criminal origin where one of them is corruption. The morality of the law enforcement Police Prosecutor's office and the Corruption Eradication Commission should create harmony because basically three institutions that has the authority respectively. The three institutions each umbrella the law is the Law. Although in fact the Corruption Eradication Commission as one of the law enforcement in a criminal money laundering with the origin of the corruption will take over the functions and tasks of the Police and the Prosecutor's office to conduct an investigation, the investigation and the prosecution in matters korupsitertentu. Constraints faced in creating the morality of good law enforcement officers in criminal acts of corruption, including from the legal factors, namely the presence of laws and regulations that are considered to overlap so that the pull of the authority, because it is considered the legislation is over-lapping (overlap).
Keywords: Morality, Corruption, Money Laundering.
Introduction
Money laundering with the origin of the corruption is a classic problem that has long existed. Corruption in Indonesia is currently still being one of the causes of the decline of the economic system in indonesia, which occur in systemic and extends to not only detrimental to the financial condition of the state but has also violated the rights of the social and economic society widely.
Corruption and money laundering, or on the contrary has become a global problem between countries, belonging to the transnational crime even on the implications of bad multidimensional economic losses and the financial state, then corruption can be classified as extra ordinary crime that must be eradicated. Eradication of corruption should always be a priority agenda of the government to overcome in serious and urgent as well as part of a program to restore the confidence of the people and the international world [1].
In order to improve the economic growth of a country is concerned, is no exception Indonesia. A variety of policy in the form of legislation in the form of: TAP MPR No. XI/MPR/1998 on the Implementation of the State That is Clean, Free of Corruption, Collusion, and Nepotism; Law No. 28 of the year 1999 on the Implementation of the State That is Clean, Free of Corruption, Collusion, and Nepotism 6; Law Number 31 year 1999 Jo Law Number 20 year 2001 on the Eradication of Criminal Acts of Corruption; Law Number 30 year 2002 on the Commission for the Eradication of Tindan Corruption; and a Special Court for Corruption. The establishment of the two institutions is one of the efforts conducted by the government and the legislature in the eradication of criminal acts of corruption. Law No. 7 of 2006 on the Endorsement of the United Nations Convention Againts Corruption 2003 as well as Law No. 8 of 2010 On the prevention and eradication of money laundering [2].
With the number of the issuance of laws and regulations related to the eradication of corruption,
not instantly make the corruptor be afraid to commit criminal acts of corruption, but the most important is how the implementation/operationalization/ implementation of all regulations in combat money laundering with the origin of corruption in Indonesia. As expressed by the Muladi that criminal law enforcement is not done only on the settings in a law, but also should be applied and implemented in the community [3].
Therefore it is no exaggeration when corruption and money laundering is a criminal offence which is chronic and difficult to heal, resulting in handling must be carried out by some agencies that have the authority about it. In practice it turns out that's not as easy as it is written in the legislation. Because in practice, either already happened or a new predicted would happen, it turns out that the implementation of the work of the KPK hit a lot of problems. These problems, among others, is a relationship of coordination between the KPK and the Police and the Prosecutor's office as a sub system of the Integrated Criminal Justice and also the task danperanan KPK itself as a super body. In order to rebuild public confidence in the role of dancitra institutions the judiciary and law enforcement agencies such as the Police, the Prosecutor's office, and the Corruption Eradication Commission, then one of the mechanisms in the sub system of criminal justice that the investigation and prosecution, it is necessary to be empowered in a more optimal [4].
The Morality Of Law Enforcement Agencies (Police, Prosecutor's Office, KPK) In Money Laundering With The Origin Of The Corruption.
Satjipto Rahardjo, among others, stated "the Law can not upright by itself, that means not being able to embody his own values and his will stated in the regulations of the law. The law will lose its meaning if it is not enforced. In other words, the law is not able to perform its main function when not enforced".
According to Sudarto in the field of criminal law enforcement is supported by a complementary tool and regulations are relatively more complete than
law enforcement in other fields. The apparatus in question here is the police, the prosecutor's office of the court and the institution of execution of the criminal, while the regulations are said to be more complete is between the other provisions of the Law of Criminal procedure, the Law on Judicial Power, the Law on Police of the Republic of Indonesia and the Law on the Prosecutor's office of the Republic of Indonesia [5]. Law Number 31 year 1999 as amended by Law Number 20 year 2001 on Eradication Corruption, also contains ideas or concepts that must be executed by law enforcement. As a policy that is rational, the enforcement of the Law on the Eradication of Criminal Acts of Corruption has 3 elements which are related to each other, namely the Law on the Eradication of Criminal Acts of Corruption as the product of Legislation, which will then be applied by law enforcement officials (Policy Application/Judicial) and implemented by the apparatus of the executive (Policy Executive/ Administrative). In other words, that in law enforcement, including enforcement or the eradication of criminal acts of corruption related legislative policy, policy, judicial, and executive policies as a whole. Corruption eradication efforts, it should have become a priority agenda of the entire activity of law enforcement [6].
The crime of money laundering and corruption at first seen as a crime of ordinary (Ordinary Crime), the international community, agreed to put the crime of corruption as an extraordinary crime (Extra Ordinary Crime). Exceptional circumstances that requires the presence of action and handling is incredible anyway. Exceptional handling is not means it can be out of the corridors of the rule of law. Because of the nature of the crime of corruption is an extraordinary crime so that the handling had to be extraordinary. Then the law enforcement in a criminal corruption comprised of Prosecutors, Police, and the KPK.
The position and function of the police has been regulated in Law Number 13 Year 1961 on the subject of the Police Power of the State. Based on Article
2 of Law Number 13 Year 1961 on the subject of the Police Power of the State is specified as follows [7]:
a) Maintain order and ensure public safety;
b) In the field of judicial conduct an investigation on a crime and a violation according to the provisions in the law of Criminal procedure Law and other regulations of the State;
c) Oversee the flow-the flow of beliefs that may harm society and the State;
d) Carry out special tasks given to him by a rule of the Country.
Along with the passing of the reform was born Law number 2 Year 2002 on the Indonesian national Police as a form of legitimacy to the independence of the police agencies [8]. The authority possessed by the police in the run the task the investigation of the provisions ofArticle 13 of the Law was also based on the Law of Criminal procedure applicable or RBG. In terms of the status of the police in the investigation authority is as an auxiliary prosecutor.
In addition to the authority as set forth in the code of criminal procedure the police also have the duty and authority as provided for in the legislation of other scattered, one of them is the Law Number 20 Year 2001 on the Eradication of Criminal Acts of Corruption as well as Law No. 8 of 2010 on the prevention and eradication of money laundering. That conduct authority investigation of criminal acts of corruption are still owned by the police even though the two institutions the investigation of others, namely the prosecutor's office and the KPK also has the authority [9]. The provisions ofArticle 11 of the Law No. 30 of2002 on the KPK to mention that the Eradication of Corruption authorities conducting an investigation, investigation, and prosecution of criminal acts of corruption:
a) Involving law enforcement officials, state officials, and other persons in connection with criminal acts of corruption committed by law enforcement officials or state officials;
b) Got the attention of disturbing the public; and/or
c) Involves the loss ofat least Rp. 1.000.000.000,00 (one billion rupiah).
Of such provisions can be seen that the authority conducting the investigation of money laundering by criminal corruption that can be done by the institution of police investigators is Related to the loss of at least Rp. 1.000.000.000,00 (one billion rupiah). Do not Get the attention which is disturbing the public; and/or, and not Involving law enforcement officials, state officials, and other persons in connection with criminal acts of corruption committed by law enforcement officials or state officials [10].
The provisions of the authority conducting the investigation, which is owned by Police investigators give firmness that in accordance with the Law Number 2 Year 2002 on the Indonesian national Police, the position of a police investigator in the case of the task of the investigation is the holder of the role of the main conducting the investigation against all criminal acts. However, the legislation provides for the restriction that it should still be paying attention to and does not reduce the authority possessed by the investigator in accordance with the regulations that already exist [11].
Other institutions which is the law enforcement in a criminal money laundering with the origin of the corruption is the attorney general. The prosecutor's office is a state agency implementing the power of the state in the field of prosecution as well as in a criminal corruption prosecutor's office is given the authority to conduct the prosecution, in addition ke-jaksaanpun given the authority to conduct investigations as the embodiment of the Law Commission of Corruption Eradication.
In the Legislation Numbers 16, 2004 on the Prosecutor's office of the Republic of Indonesia Article 2 of the Attorney general of Indonesia is a government agency that carries out the state power in the field of prosecution and other authorities under the Act. The prosecutor's office as the controlling process of the case (Dominus Litis), has a central position in law enforcement because of the prosecutor's only institu-
tion that can determine whether the matter pidanaini can be submitted to the court or not [12].
The powers and duties of the prosecutor's office provided for in Article 30 of Law No. 16 of2004 on the Prosecutor's office of the Republic of Indonesia, namely:
a) Conduct the prosecution;
b) Carry out the determination of the judge and the verdict of the court which has obtained the force of law;
c) monitoring the implementation of the verdict of the criminal on parole, the verdict of the criminal supervision, and decision off parole;
d) Conduct an investigation of specific criminal acts under the law;
e) Complete case files and it can perform additional checks before delegated to the courts in the implementation is coordinated with the investigator.
In the Explanation of Article 30 of Law No. 16 of2004 on the Prosecutor's office of the Republic of Indonesia, explained that Kewewenangan in these terms is kewewenangan as set out for example is Law Number 26 Year 2000 on Human Rights Court and Law Number 31 Year 1999 on the Eradication of Criminal Acts of Corruption, as amended by Law Number 20 Year 2001. Law Number 30 Year 2002 on the Corruption Eradication Commission.
In the provisions of the act that the attorney general is given the authority of another that is doing the investigation of specific criminal acts. The authority of the prosecutor's office conducted the investigation of criminal acts of corruption together with the authority possessed by the investigators, the police and the KPK, with the provisions set forth in Article 11 of the Law No. 30 of2002 on the Corruption Eradication Commission.
The functions of the KPK, as the Super agency Body of the institution of law enforcement corruption crime has been gaining justification of the juridical. So the presence of the KPK, generally tend to cause controversial in the practice of law enforcement corruption at the level of the field. Concerns
about the credibility of the KPK as a new institution is a natural thing, given in the hands of the body is the last hope for the eradication of corruption in Indonesia. Article 43 of Law No. 31 Year 1999 to mention that the duties and authority of the KPK is to conduct coordination and supervision, including conducting investigations, investigation, and prosecution in accordance with the provisions of the regulations. legislation yangberlaku.
The provisions of Article 6 of Law Number 30 Year 2002, set about the task performed by the KPK, namely:
a) Coordination with the relevant authorities to do the eradication of criminal acts of corruption;
b) Supervision of the competent authority conducting the eradication of criminal acts of corruption;
c) Conduct investigations, investigation, and prosecution of criminal acts of corruption;
d) Do the actions of the prevention of corruption; and
e) monitor the implementation of the state government
The tasks carried out by the KPK then the Commission was given the authority to:
a) In carrying out the task of supervision, the KPK is authorized to conduct surveillance, research, or review of the agency that runs the tasks and responsibilities related to the eradication of criminal acts of corruption, and agencies in carrying out public services.
b) In carrying out the authority of the then KPK authorities also took over the investigation or prosecution of the perpetrators of criminal acts of corruption that is being done by the police ataukejaksaan.
c) In the event the KPK took over the investigation or prosecution, the police or prosecutor's office shall submit the suspect and all the case files and evidence and other necessary documents in a maximum of14 (fourteen) working days from the date of receipt of the request of the Corruption Eradication Commission.
d) the Submission referred to in paragraph (3) is done with the make and sign the minutes of the ceremony so that all the duties and authority of the police or the prosecutor's office at the time of submission of the switch to the Corruption Eradication Commission.
On the other hand, the role of law enforcement institutions, such as the Police, the Prosecutor's office, and the Court is reduced, because in the last time is the authority with the Police, Prosecutors and the General Court. However, since the release of Law Number 30 Year 2002 on the Corruption
Eradication Commission, the crime of corruption, in certain size (over 1 billion) is the jurisdiction of the competence of the KPK.
The complexity of the crime of corruption let alone the continued money laundering impossible can find a way out with only a partial approach. In terms of international law, in addition to corruption as an extraordinary crime due to the abuse of authority (abuse of power) that has destabilized the joints of the life of the state. The urgency of the establishment of the KPK, through the Law Number 30 year 2002 on the Corruption Eradication Commission is expected to realize a just and prosperous society and a prosperous society based on Pancasila and the 1945 constitution.
The position of the KPK as the institution of the law who want therefore has the authority more credible and professional Law Number 30 year 2002 on the Corruption Eradication Commission.
Functional relationship and coordination between the Prosecutor's office and Police department with the KPK can be clearly seen in the translation of the Article 6 of Law Number 30 Year 2002 as already referred to above. In the article look how big the role, duties and powers of the KPK in the eradication of criminal acts of corruption. Furthermore, for this is explained dalamPenjelasan General ofLaw Number 30 Year 2002, the KPK:
a) Can compile a working network (networking) a strong and treat the existing institutions as "coun-
terpartner" choice so that the eradication of corruption can be implemented efficiently and effective;
b) do Not monopolize the duties and powers of inquiry, investigation, and prosecution;
c) Serve as a trigger and the empowerment of institutions that have been there in the eradication of corruption (trigger mechanism);
d) it Serves to supervise and monitor the existing institutions, and in certain circumstances can take over the duties and powers of investigation and prosecution (superbody) which is being implemented by the police and/or prosecutor's office.
General explanation of this, it was concluded that the corruption eradication commission should make the Police and the Prosecutor's office as a 'counter partner' choice so that the eradication of corruption can be implemented efficiently and effectively. This can be understood given the existence of the KPK did not get on these areas, especially the Counties and Municipalities. If the KPK conduct an investigation, the investigation and prosecution will result in the onset of various difficulties and swelling of the financing are very large. So for the investigation and prosecution conducted by the State Prosecutor or the Prosecutor's office [13].
Similarly about the function KPK to not monopolize the investigation and prosecution as well as other functions, namely as a trigger and empowering institutions and the functions of the supervision and monitoring agencies who have been there, signaling that the functional relationship between the KPK with the Prosecutor and/or the Police will continue to provide a major role to both institutions earlier it is to carry out investigation and prosecution.
In addition, the Legislation also granted the requirements of the case that can be taken over by the KPK, namely:
a) Reports from the public about the corruption was not followed up;
b) The Process of handling corruption in protracted or delayed without reason that can be accounted for;
c) The Handling of corruption aimed at protecting the perpetrators of criminal acts of corruption is real;
d) The Handling of corruption contains elements of corruption;
e) Barriers to the handling of corruption due to interference from the executive, judicial, or legislative; or
f) Any other Circumstances which, according to the consideration of the police or the prosecutor's office, the handling of corruption difficult to implement and can be accounted for.
In carrying out the task of the inquiry, investigation, and prosecution of criminal acts of corruption, the KPK the authority to conduct investigations, investigation, and prosecution of criminal acts of corruption:
a) Involving law enforcement officers, state officials and others that there was a relation to the criminal acts of corruption committed by law enforcement officials or state officials;
b) Got the attention of disturbing the public; and/or
c) Involves the loss ofat least Rp. 1.000.000.000,00 (one billion rupiah)
The approach in the criminal justice system according to Ramli, Atmasasmita focuses on the coordination and synchronization, accompanied by the supervision and control of the use of power by the components of the criminal justice (police, prosecutors, courts and correctional institutions) and using the law as an instrument to strengthen The administration of justice. [14].
According to Bertalanffy Kennct Building and Shorde and Voice that the legal system containing keintegrasian, regularity, integrity, organization, connectedness and dependence of the components to each other disertaiadanya orientation on the purpose [15].
Although essentially the Corruption Eradication Commission which is the institution superbody that is regulated in Law Number 30 Year 2002 on the
Corruption Eradication Commission, but the KPK was on the limit in that case, the KPK during the run of the task and the authority, the KPK does not have the authority to issue warrants the termination of the investigation and prosecution of criminal acts of corruption. The judicial process against the criminal acts of corruption carried out by using the Law 31 Year 1999 on about the Eradication of Criminal Acts of Corruption, as amended by Law Number 20 Year 2001 on the amendment of Law Number 31Tahun 1999 on the Eradication of Criminal Acts of Corruption, Law No. 30 of2002 On the Corruption Eradication Commission and the Law No. 8 of 1981 On Criminal Law (criminal procedure code). Law Number 30 Year 2002 is the special provisions of the law of the court of criminal acts of corruption. While the criminal procedure code the provisions that are common in the law of criminal procedure in the courts of general jurisdiction. In practice, the third such Laws complement each other. It is expressly stated in Article 26 of Law No. 31 Year 1999, Article 38ayat (1) of Law Number 30 year 2002 and in Article 39 paragraph (1) and Article 62 of the Law Number 30 year 2002.
The provisions of the above signifies the entry into force of the legal principle of lex specialis derogatlegi generalists, because the provisions are not specified in the Legislation that are special to this (Law Number 31 Year 1999 and Law No. 30 of 2002) will continue to use the provisions in the legislation of a general nature (criminal procedure code). To it in terms specified by the Law Number 31 Year 1999 and Law No. 30 of2002, then the same thing which is regulated in the criminal procedure code does not apply. But if it is not specified then the effect is the terms set forth in the code of criminal procedure. The exclusion of certain provisions through the use of the legal principle of lex specialis derogat legigeneralis.
Based on the foregoing, we can see that the morality of the law enforcement police prosecutor's office and the KPK should create harmony because
basically three institutions that has the authority respectively. The three institutions each umbrella the law is the Law. Although in reality the KPK as one of the law enforcement in a criminal corruption will take over the functions and tasks of the Police and the Prosecutor's office to conduct an investigation, the investigation and prosecution in cases of corruption particular.
The morality of law enforcement in a criminal corruption this did not materialize because of differences in the target of each institution so that the result of the selfishness of each institution
Constraints-What Obstacles Faced By Law Enforcement Agencies (Police, Prosecutor's Office, The KPK) As The Enforcement Of Law In The Handling Of Money Laundering With The Origin Of Corruption In Order To Achieve The Morality Of Good Law Enforcement Officers.
Conceptually, then, the essence and meaning of the law enforcement situated on the activities of harmonizing relationship values outlined in the rules of the steady attitude and acts as a summary of the translation of the value of the final stage, to create, to maintain and defend the peace of the association alive.
Robert B. Seidman stated that any action to be taken either by the role holder, the implementing agencies and lawmakers are always within the scope of the complexity of the social forces, cultural, economic and political and so on. All social forces always come to work in any attempt to enable the applicable regulations, implement the sanctions. (Satjipto, Ra-harjo;1981;31) Finally, the role of which is run by the institutions and legal institution that is the result of the operation of a wide variety of factors.
According to Soerjono Soekanto, that the main problem of law enforcement is actually located on the factors that may influence it, namely:
a) Legal Factors (Laws).
b) The Law Enforcement.
c) The means or facilities that support law enforcement.
d) Community.
e) Cultural Factors.
The constraints in law enforcement corruption eradication In the practice of law enforcement corruption eradication of the Low commitment of the government towards the eradication of corruption and that the eradication of corruption is not a top priority of government policy, which reflects the weak political will of the government for the efforts to eradicate corruption.
Barriers the first deals with the laws and regulations. Laws and regulations concerning efforts to combat corruption have some weakness which is located on the substance of the legislation, both from the aspect of content and technical aspects of its implementation, thus allowing the occurrence of lameness in the eradication of corruption. Barriers that are both related with the lack of transparency of the executive and legislative branches to the various irregularities in the financial management of the country. The mechanisms for investigation against officials of the executive and the legislature also seem very bureaucratic, especially if it concerns the permission checks against the officials who indicated corruption [16].
The obstacles that the third deals with the morality of the moral law enforcement officers as well as the availability of facilities and infrastructure supporting their success in the efforts to eradicate corruption. The obstacles that the fourth deals with the problems of culture, where most people have looked at corruption as something that is commonly done
for generations, the strong culture are reluctant to implement a culture of shame [17].
The process of law enforcement by law enforcement agencies (police, prosecutors and judges), in particular with regard to the cause of corruption in these areas can be said to have undergone significant progress compared to previous years. This is indicated by the increasing number of corruption cases that can be revealed by the apparatus-the apparatus of law enforcement in the area. This success can not be separated from the role of the public and independent institutions which concentrated on efforts of law enforcement and combating corruption
Conclusions
1. The morality of law enforcement in a criminal corruption terformulasikan in the Legislation of the Eradication of Corruption where the investigator in a criminal corruption comprised of the Police, the Prosecutor's office and the KPK. The three institutions have qualifications authority respectively. So in the hope that such integration will be realized. But in fact the integration of law enforcement in the follow-pidan corruption did not materialize because of differences in the target of each institution so that the result of the selfishness and pull the authority of each institution.
2. Constraints faced by law enforcement in order to create a good integration in criminal acts of corruption, including from the legal factors, because it is considered the legislation is over-lapping (overlap), so there is a pull of authority between the three institutions.
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