Legal Analysis of the Waiver of Unlawful Elements in Corruption Cases (Study of Supreme Court Decision of the Republic of Indonesia Number 3968 K/Pid.Sus/2023)

Abstract

Corruption is a serious crime with wide-ranging impacts, where Article 2 paragraph (1) of the Corruption Eradication Law (UU Tipikor) requires the element of "unlawfully". After the Constitutional Court Decision No. 003/PUU-IV/2006, this element was limited to the formal meaning. However, in practice, there is a disregard for the unlawful element in corruption cases, with a case study of the Supreme Court Decision of the Republic of Indonesia Number 3968 K/Pid.Sus/2023 there was a difference of interpretation between the public prosecutor and the judge, such as in the Juanda Prastowo case where the unlawful element of Article 2 paragraph (1) was disregarded by the judge from the first level to the cassation (Supreme Court Decision No. 3968 K/Pid.Sus/2023 which rejected the Public Prosecutor's cassation and the Defendant was sentenced based on Article 3 of the Corruption Law.of 2018 concerning Government Procurement of Goods/Services which resulted in state losses. However, the Panel of Judges to the Supreme Court set aside this element in Article 2 paragraph (1) with the main consideration of the application of the principle of lex specialis derogate legi generalis. The Defendant's actions carried out in his capacity as a Commitment Making Officer (PPK) and involving abuse of authority, opportunity, or means inherent in his position, are considered more appropriate to apply Article 3 of the Corruption Law. This study also highlights criticism of the decision which is considered less careful because it has the potential to ignore the fulfillment of formal unlawful elements.