Corruption Offenses in the Law on Corruption Crimes

Law Number 31 of 1999 is a law that regulates corruption crimes after the reformation and revokes Law Number 3 of 1971 which was a product of the New Order (Orba). Law Number 31 of 1999, hereinafter referred to as the Corruption Law, formulates corruption as "Every person who unlawfully commits an act of enriching himself or another person or a corporation that can harm state finances or the state economy". If the elements of the article are broken down, it will be seen that the formulation of the article uses a formal offense. This article formulates that state losses as a result do not have to "exist" but are only potentially (potential loss). This can be seen from the word "can" in the article which indicates that the element of state loss as a result of corruption can be "there" or "not" because it is only a potential. Because the formulation of this article does not highlight the aspect of consequence of a criminal act, it is categorized as a formal offense. However, in its dynamics, this article was tested to the Constitutional Court (MK) with Decision Number 25/PUU-XIV/2016. In the decision, the Constitutional Court stated that the word "can" in the formulation of Article 2 paragraph (1) of the Corruption Law is unconstitutional and has no binding legal force. The Constitutional Court assesses that by formulating the Corruption Law article in the form of a formal offense that uses the concept of potential loss, it will be very easy to criminalize even though the state loss has not been proven. In other words, the Constitutional Court assesses that this formulation of formal offense does not bring legal certainty. The implication of the decision is the transformation from a formal offense to a material offense. Regarding this material offense, the Constitutional Court assesses that legal certainty can be better guaranteed. This is because state losses as a result of corruption must be proven first (actual loss). Thus, the proof of corruption crimes becomes stricter so that the potential for criminalization can be avoided. The existence of an element of state financial loss that must be proven makes the mechanism of proof not only the proof of formal elements such as the perpetrator, the act, and the intention, but also the consequences of the act itself.