3rd Winner ALSA National Law Essay Competition 2013

Dead Penalty for Coruptor is Violation of Human Rights

Name : Milda Arierzza University : Universitas Jember

Dead Penalty for Coruptor is Violation of Human Rights Corruption is understood as the abuse of power and abuse of authority for the personal interest.

The Act of Corruption Eradication in Indonesia formulates four elements of

corruption which are abuse of authority, enrichment his or herself or corporation, lost out of financial state elements and elements of lawlessness. Corruption seems to be very difficult to clear, it’s like the latent danger.

Corruption is known as one of human right violation. The corrupt behaviour can be meant as the people’s right roberry. For example, corruption of the health fund, education or fuel subsidies which should be realized for Indonesian especially the poor people because these funds have been corrupted before it reached them, so many people can’t get education, medical treatment and can’t fulfill their daily needs.

Corruption may also affect the enjoyment of civil and political rights. Corruption may weaken democratic institutions both in new and in long-established democracies. When corruption is prevalent, those in public positions fail to take decisions with the interests of society in mind. As a result, corruption damages the legitimacy of a democratic regime in the eyes of the public and leads to a loss of public support for democratic institutions. People become discouraged from exercising their civil and political rights and from demanding that these rights be respected. Electoral fraud and corruption in the funding of political parties are other, more direct corrupt practices related to the enjoyment of civil and political rights.

Condsidering the effect of corruption, the legislative body formulated the death sentence as the best weapon to eradicate corruption. But in the other hand, we have to honor the right of life. The right of life is the most basic rights and being a right for everyone who should be protected by the state, and it has been stated in Article 28 of The Indonesia Constitution (Undang-Undang Dasar Negara Republik Indonesia Tahun 1945), that protection, promotion, enforcement and fulfillment of human rights are the responsibility of the state.

PROBLEM

At the Law 31/1999 on Corruption Eradication jo. Act 20/2001, article (2) stated that "in the event of corruption as referred to in article (1) in the specially condition, the death sentences can be applyed". But in fact, no one of the criminals has punished with death penalty. Law enforcement agencies argued that the death sentence contradiction the human rights. In accordance with our constitution, Article 28A stated, everyone has the right to live and to defend his/her life and living. Resulting there is contradiction between constitution by Law 20/2001, finally appear a new argument that there is no urgency about applying death sentence of the article, and it can be regarded as a bare section. Whereas in other countries have not imposed the death sentence for criminals, because it’s violation of human right.

REVIEW

Death penalty is not sufficient and effective for corruptors, if the penalty one is good for our government , Indonesia. So what is Indonesia waiting for ? Indonesia is a law country.

Indonesia may authorize the death penalty for corruptors anytime they want. That’s why I don’t hold with the death penalty for corruptors.

In the Law of Corruption Eradication, death sentence is threathened to everyone who violates the Article 2 Paragraph 1, Paragraph 2 of article which determined death sentence to be imposed when national emergencies, disasters national, repetition corruption, or when a state of economic and monetary crisis.

The death sentences is a heaviest form of punishment which is imposed on someone for his/her conduct. Majority of Indonesians may support this sentence because they are tired of the lengthy court procedures when dealing with corruption criminals. Some king-size corruption criminals only serve a two to five-year prison term. ICW data in 2011 in the last five years ago, the average demands of prosecutors of corruption cases was minimal 3-4 years imprisonment and punishment from the judge for corruptor is weak, average only 1-2 years imprisonment. The maximum sentences for corruptor is very low. Only Adrian Woworuntu, the convict of corruption cases on BNI lifetime and Gunawan, the convict of bribery against Artalyta Suryani, who was sent to prison for 20 years.1 Human Rights is a set of rights which attached to the essence and existence of everyone as God creature and it must be respected, upheld and protected by the state, for the respect and protection of human dignity.

Human Rights has a universal characteristic, then human rights are not only to be given all of the individual, but also there is a universal obligation for all individuals in the world to treat the each other of individual well-indivudu disenfranchised. Human rights must be given as a whole, not on the underlying cause but to see human beings as creatures with dignity. Human rights instruments developed as part of a comprehensive and international law, written or unwritten already set it.

In Declaration Universal of Human Rights Article, paragraph 3 of th "Everyone has the right to life, liberty, and security of person". The most extreme form of violation of the right of life is killing or injuring of physical or spiritual person or group (Leah Levin, 1987: 45). The death sentences was a clear violation of this article, where those sentenced to death 1

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have been deprived of life, liberty, personal security. However the death sentences is a punishment that really violates the right of life for man as a creature of God. The death sentences to be reviewed under the International Covenant On Civil Rights Political namely Article 6 paragraph (1) In every human being inherent right to life.This right shall be protected by law. No one human being who should be deprived of his life recklessly. Just as described in Declaration Universal of Human Rights Article 3 of that executions, in violation of Article 6, paragraph (1), the execution basically cause physical pain and take away the rights of one's life, and this is contrary to Article 6, paragraph (1) of the ICCPR and Article 3 Declaration Universal of Human Rights. 2 In other parts of the world or other countries the death sentences is not applying, feel of them to respect human rights to each others are very high. If the death sentences is still applied in Indonesia, it will cause stigma if the state of human rights in Indonesia is very weak or it could be very bad. Not only in the death sentences for corruption, but also a lot of problems or other tragedies are considered still can not respect human rights for instance in terms of freedom of religion, and others. Whereas in Indonesia constistusi already mentioned in article 28A that every person has the right to live and to defend life and living.

The right of life is also set firmly in article 4 of the Law (UU) No. 39 Year 1999 on Human Rights which states: "The right to life, the right not to be tortured, the right to freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the public, and the right not to be prosecuted based on retroactive laws are human rights can not be reduced under any circumstances and by anyone ".

Indonesia signed the Declaration Universal of Human Rights and president Indonesia also has ratified the International Covenant on Civil and Political Rights, both of them clearly states the right to life is the right of every human being under any circumstances and is the state's obligation to guarantee it. Unfortunately ratification of the ICCPR is not followed by the ratification of the Second Additional Protokal International Covenant on Civil and Political Rights on the elimination of the death penalty. This shows clearly that there is a contradiction between UUD RI 1945 as Indonesia Constitution by Act No. 30 of 2001 Article 2 paragraph (2) that "in the event of corruption as referred to in article (1) applying in certain circumstances, the death sentences can be imposed".

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According to the principle of Lex Supoerior derograt Legi inferiori that the Act has a higher standing aside existing legislation under it. UUD RI 1945, as the Indonesia Constitution

has the highest posision compared to other Act. Imposition of the death

sentences is not in accordance with the state constitution should not be enforced, because it resulted in corruption legislation to be unconstitutional. In addition, the enactment of the death sentences is tantamount depriving another person's life that can be regarded as a form of human rights violation. To make the perpetrators of corruption it is not necessary deterrent death sentences, but a good attitude and professional law enforcement

enough in my

opinion. They all have an obligation to work in accordance with the duties and powers that have been given by law, by providing appropriate penalties in accordance with the deed is done, and uphold moral and ethical in carrying out duties and responsibilities. In accordance with the main aim of the law that the law as a means of settling disputes or conflicts, in addition to the other functions as a tool of social control.

Although corruption is one of extraordinary crimes, we should not conduct the death penalty for corruptors. The death penalty doesn’t matter with the decreasion of corruptors in Indonesia .If the government target death penalty for corruptors , they will do it for nothing.

The corruptors maybe do that manners for thinking only their family. They sacrifice themselves to their family. They don’t care about punishment or they will be known as the judgement the suspect of corruption, they do it because of affliction of their family to be prosperous. Its really absurd if there is death penalty for corruptor in Indonesia. Indonesia holds every human rights up well. Eventhough there is a rule about the death penalty for corruptors, but there is no the death penalty for corruptor until now . Recently , most of the corruptors are from DPR and DPRD its elf. Make UUD and authorize it, That’s DPR’s responsibility as legislative . Maybe its so hard to deal the death penalty for corruptors in Indonesia. In Korea and china , corruption still reign supreme eventhough the country has death penalty for their people. China occupies rank 78 in eradicating of corruption on the world, meanwhile Denmark who doesn’t place the death penalty for convicting corruptors , it occupies the number one on the world.

There are some way to penalize corruptors in Indonesia . Actually, if all of police are good, and all of judges are fair and have responsibility to take a case about corruption. The corruptors can be more minimize than before time by time. Unfortunately, its apart for the fact that the system of law in indonesia is bad, weak and mess. So many judges in Indonesia are affected by KKN. And I suspect lots of dirty work in every case of making judgement for

corruptors. I think we should focus to the law of Indonesia at first . We need to control and do surveillance for all of police and judges in indonesia . So that there are will no the suspect of corruption who gets the jail out before they have time to depart. And there are no inmates who feel good inside prison. We know that the jail for corruptors are different to any others right ? their jail are too good and lavish. The sytem of law in Indonesia have to be repaired and reviewed. The Kpk should check and inquire anyone who are reported and accused by the suspect of scandal corruption. I don’t understand its right or not that “maybe” the kpk itself has influenced by dirty politic. We should not reside the death penalty as the number one. We have to seek another logical punishment .

For example take all of wealth from corruptors and their family then get the corruptors in the jail 15 years minimally.

Second komisi yudisial should track down then chastises the judges who get involved in liberating corruptors.All of police who accept some money from corruptors have to be fired and should pay compensation.

There are some contry in Scandinavia were able to prove themselves as a country free from corruption without having to apply the death sentences for corruptors. Support and a strong awareness of the government, parliament, law enforcement and the community to be key to the success of the country in the fight eradicate corruption.

Even though the system is bad, if it is filled with good people then it would be a good system. Instead the best of a system if it is filled with bad people if can be Destroyed the system, as well as just nonsense.

Surely there is another way of providing a deterrent for criminals should be put to death someone without impoverishing corruptors as corruption or expropriation of assets, removing remissions, parole and pardon and the provision of special facilities for criminals while in prison, maximizing demands and imprisonment for corruption and sanctions social for criminals3 With the establishment of the KPK was also given authority over other alternatives in order to eradicate corruption in the absence of the death sentences, for example, the KPK has the authority to break through all the alibi of the criminals who had not previously owned by prosecutors and police. See, the arrest of prosecutor Gunawan the KPK to intercept his car in the street. In addition, examination of the Commission on corruption suspect Al Amin Nasution, no hesitate KPK doing researched to the offices of members of the House of

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Representatives. It can be a shock to the political elite and officials. Eradicate corruption can be done in three attempts, the preventive, repressive, and community participation Examples of preventive measures: • building an ethos of officials and employees of a clear separation between private and company-owned or state-owned.

• Improved income for officials and civil servants in accordance with economic progress, so that officers and employees are not carried away by the temptations and opportunities provided by the authority.

• foster understanding and open political culture for control, correction and warning, because the powers that tend to be abused.

• Planting of good morals also very important to do not only on the officials alone but for the whole society from as early as possible.

• Maximizing the duties and authority of the institution and enforcement of existing laws, to eradicate corruption Example repressive efforts: • publication of face corruptor on television.

• re-registration (re-registration) of the official property.

• Refunds are corrupted state • Introduction of a verdict in kind Examples of people participation: • Giving support to law enforcement agencies in curbing corruption.

• Always supervise the performance of officials and law enforcement officers.

• Provide guidance and moral penanamam for families For law enforcement officers, especially for the legislatif should be more attention to legal aspects of humanity in terms of making a law that contains the death sentences, and also against the law enforcement officers should pay more attention to aspects of the future and the reasons for the application of the death sentences. For all the people should obey the law

that aims to achieve justice dal order, due to the smooth conduct of the law may create a condition that comfortable, as well as the provisions of international human rights in the application of capital punishment.

So that prevention an d eradicate corruption will be done properly and optimally, without human rights violation.

Fighting corruption, Yess. The death sentences, No.

CONCLUSION

Indonesia is a law state which obliged to protect and recognize the human rights. The application of the death sentences for any crime or corruption, can not be justified because it is kinds of human rights violation. In international and national laws both written and unwritten already set, it is necessary for the improvement of both preventive and repressive as well as the role of the community to fight corruption without death penalty.

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