Transformation of Offenses in the Anti-Corruption Law

Background

As explained in the previous two articles that offense in criminal law offenses are classified into formal and material offenses. This classification not only impacts the different formulations of offenses but also affects the evidentiary mechanisms. The evidentiary mechanism is highly dependent on the formulation of the offense and cannot be generalized across different offenses. The evidentiary mechanism for material offenses is highly dependent on the aspect of consequence or impact as a further element of a criminal act. If the consequence of an act is not fulfilled or cannot be proven, then the criminal act is considered incomplete or imperfect. An example is the offense of murder, which uses a material offense. If someone shoots another person but the person shot does not die, then the criminal act of murder is considered incomplete. In other words, the act of shooting cannot be categorized as murder as formulated in Article 338 of the Criminal Code (KUHP). Each criminal act has been formulated in such a way that each formulation has its own characteristics of offenses, which are divided into these two types. However, in its dynamics, a criminal offense can transform or move from one type of offense to another. This is very possible to happen, and in reality, it has happened. This transformation occurred in the formulation of corruption offenses regulated in Law Number 31 of 1999, which was last amended by Law Number 20 of 2001.

Corruption Offenses in the Law on Eradication of 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 "Any person who unlawfully commits an act of enriching himself or another person or a corporation that may harm state finances or the state economy." If the elements of the article are dissected, 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 "may" in the article which indicates that the element of state loss as a result of corruption may "exist" or may "not" because it is only limited to potential. Because the formulation of this article does not highlight the aspect of the consequences 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 "may" in the formulation of Article 2 paragraph (1) of the Corruption Law was unconstitutional and had no binding legal force. The Constitutional Court assessed that by formulating the Corruption Law article in the form of a formal offense that uses the concept of potential loss, it would be very easy for criminalization to occur even though the state loss has not been proven. In other words, the Constitutional Court assessed that the formulation of this 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 this corruption crime 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 proof mechanism not only limited to proving formal elements such as the perpetrator, actions, and intentions, but also the consequences of the act itself.

Conclusion

The types of offenses in criminal law are divided into formal and material offenses. In its dynamics, the transformation of offenses is very possible and has occurred. This transformation occurs due to changes in the law itself. In the Indonesian context, this change occurred in the Anti-Corruption Law, which changed due to a decision of the Constitutional Court. The Constitutional Court's decision to remove the word "may" in the formulation of Article 2 paragraph (1) of the Anti-Corruption Law juridically changes the nature of the offense from formal to material.