RECONSTRUCTION OF PENAL SANCTIONSAGAINST CORRUPTION ( A DIGNIFIED JUSTICE PERSPECTIVE )

Shawal Abdulajid 1 ,Teguh Prasetyo 2 and H.Umar Ma’ruf 3 . 1. Candidate Doctor in Law at the Faculty of Law Universitas Islam Sultan Agung, Semarang-Central Java Indonesia; asscotiate professor in law at the Faculty of Law UniversitasKhairun, Ternate-Indonesia. 2. Professor of Law at the Faculty of Law Universitas Pelita Harapan, Karawaci, Tanggerang-Indonesia. 3. Asscotiate professor in law at Faculty of Law Universitas Islam Sultan Agung, Semarang, Central JavaIndonesia. ...................................................................................................................... Manuscript Info Abstract ......................... ........................................................................ Manuscript History Received: 01 October 2018 Final Accepted: 03 November 2018 Published: December 2018

Barriers to the development, peace and prosperity of the Republic of Indonesia as the consequence of ramphant criminal act of corruption has spread widely in the community and the nation as a whole. Worse than that, according to some of the what so called social science experts, the development obstacles in the form of corruption crimes are actually considered to have become a culture. Corruption has becoming a way of virtually almost every legal subject, almost every person, almost including corporate bodies, for example,to acquire and maintain, among other things political/constitutional power in the society and the nation of Indonesia. It has been a frustrated to handle. To give a factual example of the feeling of frustration in the Indonesian legal system handelling corruption, in this article we provide an overview on the findings of how the Indonesian Supreme Court tackled the ongoing policy fighting against corruption in a case occured in the Indonesian Constitutional Court.The parties used corruption as a way to achieve and, particularly maintain their political power. That was a case that attracted the attention of this study. Since in that high profile case two of the very severe criminal sanctions were imposed on the convicted criminal of corruption. But,in fact, the criminal sanctions were not able to stop perpetrators to continue use corruption as -the way of life‖. Following the explanation of corruption cases as -a way of life‖, including the way to obtain and maintaining political or constitutional power in Indonesia; in this article we analise and identifying an ideal construction (philosophy/policy) from the Dignified Justice pespective to overcome the wekness of the previous theories.
Barriers to the development, peace and prosperity of the nation as the consequence of ramphant criminal act of corruption as such has spread widely in the community and the nation of Indonesia. Worse than that, according to some of the what so called social science experts, the national development, peace and prosperity (welfare state's) obstacles in the form of corruption crimes are actually said to have become a culture. It was said that it may be, since almost no longer each of the Indonesian people would deny, that corruption has been a way of life of the nation and the people of Indonesia.
As a way to live its life as a society and nation, then of course corruption is also a way of life for almost every legal subject; every men and women in the community and nation, almost all the people and nation of Indonesia. Intended by the way of life of almost every legal subject; every human beings in the society and nation of Indonesia, namely the way of life of almost every person or the legal subject. Almost every person is to mean, including almost every legal entity and corporation to establish a life and civilization in all fields or aspects in the communities and the nation of Indonesia.
Corruption has beena way of virtually almost every legal subject, almost every person, including corporate bodies to acquire and maintain political power, cultural, economic, social and others in the society and the nation of Indonesia. Look at the example below, the finding of this research. In the field of life, i.e. in the activities to achieve or maintain and exercise political and governmental/constitutional power or authority, for example. It is clear that in the law governing a general election for instance; in this case -in the perspective of the Dignified Justice Theoryasthe manifestations of the soul of the nation (Volksgeist) Indonesia based on Pancasila, one can easily read and found a statute content banning the use of money politics as a vehicle to win a general election, with the threats of imposing tough criminal sanctions.
If it is a valid construction or believed, as the issue identified above that it is a general construction (juridical thinking) which has been existing and accepted that corruption has already become a way of life as stated above; then surely, corruption, is also a way of life of almost every person (natural and legal person) use to obtain, and to maintain or execising the governmental/political power or authorities. Including in this case, to gain the authority to formulate criminal sanction arrangements so that later it will be used as a -medication‖ in preventing or curbing corruption as a -very malignant cancer‖. It seems to suggest in this metaphore as if everything has already been caused a frustration. It appears that whatever solution is given to overcome corruption, it will always fails, whether it is the implementation of criminal sanctions and the establishment of criminal sanctions that have been set to prevent and eradicate corruptionsince it is controlled by people who gain power by means of corruption itself .

Corruption in the Indonesian Constitutional Court:-
To give a factual example of the feeling of frustration in the Indonesian legal system handelling of corruption, let us look at a brief description asthe findings of how the Indonesian Supreme Court undertaking the ongoing fighting corruption in a case occured in the Indonesian Constitutional Court. In the findings there has been a legal fact that while legal subjects, who are parties in the political competition to obtain, and maintain power, among others, power to formulate criminal law formulations in the form of regulation of criminal sanctions in the local government; including to ensure the absence of criminal acts of corruption has collaborated with internal elements of the Constitutional Court used corruption as -a way of life‖. The parties used corruption as a way to achieve and maintain political/constitutional power. This is a case that attracted the attention of this study. Because, in this case two very severe criminal sanctions have been imposed on convicted criminal corruption, but in fact, the criminal sanctions were not able to cope with the perpetrators to continue use corruption as -the way of life‖.
The criminal act of coruption carried out by the perpetrator who was not the main criminal offender (AM) originated from an incident, among others, on September the 4th, 2013. On that date the Election for Regional Heads (Pilkada) of Gunung Mas District of Central Kalimantan Province was held. The election was a political arena of four candidate pairs (Paslon) strugling to gain power. The four candidates are referred to, namely (JSM-D) as

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On the same day at around 12:47 local time (CN) sent an SMS to (AM) notifying that in the evening (CN) will come to the official house of (AM) to hand over money from (HB). Then (AM) answer -Yes the witness (AM)will wait, but please ome not too late at nights, tks‖. It was around 21:00 pm (CN) taking the money from (CNA) in the Apartment Mediterranean Tanjung Duren, West Jakarta and later (CN) together (CNA) ent to the Chief Justice's Cnstitutional Court official residence in JalanWidya Chandra III No. 7 South Jakarta to submit the money to (AM) .
Moments after (CN) and (CNA) were in the official house of (AM), KPK (the Corruption ErradicationCommision) arrested (CN), confiscating a brown paper envelope that read -SG Dollar 79,000 to buy Rp. 9,284.00‖. The envelope containing seventy nine thousand Singapore dollars. Acting for (AM) as a Constitutional Justice who receives money worth approximately three billion rupiah through (CN) provided by (HB) and (CNA), and it is known or reasonably suspected that the money was given to influence the court case for the objection of the Gunung Mas District Election results for the period 2013-2018 was submitted to (AM) as a Constitutional Justice to be tried so that in its decision it stated that it rejected the application submitted by the applicants.

Failure of the Underliying Theories Justifiying Criminal Sanctions to Prevent or Erradicate Corruption in Indonesia:-
Following the explanation of corruption cases as a way of life, including the way to obtain and maintaining political or constitutional power in Indonesia as mentioned above, then in the following there has been needs to analise and identifying an ideal construction (idea/policy), its formulation policy for criminal sanctions for corruption perpetrators. In this case what is ideally reconstructed policy behind the formulation of the the types/forms of penal sanctions of, for example, as described above, thee life sentence sanctions and the withdrawal of political rights from perpetrators of corruption.
If observed the Supreme Court decision on corruption in the criminal case involving (AM) which strenghtened the decission of th High Court as described above, it can be seen that the policy of criminal formulation or regulatory principles; in this case the purpose of punishment that has been known so far, is creating a deterrent effect. This criminal policy or theory is actually failed to achieve its purpose. The same goes for the theory or principle of regulation which forms the basis for the arrangement suggested bu Kant and Smith, i.e the criminal sanctions based on the construction or idea of retributivism. Tese two underlying theories of criminal policy seems to failed, if one does not want it to be said completely undermined by the corruptors in the Indonesian system.
There is an interesting aspect that needed to be revealed from within the legally binding Decision No. 336 K/Pid.Sus/2015 as described above. The aspect is an ideal construction or philosophy use to improve the regulatory principles which failedd to achieve their purposes as staated above. The opposit fact that followed the the verdict of the Supreme Judged, in this case above, despite the fact that the Supreme Court (MA) has imposed severe criminal sanctions of life imprisonment and the lifting of political rights of (AM). Not very longafter the Decision No. 336 K/Pid.Sus/2015 described above, appeared again, repeated corruption done by another person but having the same position at the Constitutional Court. Therefor it could be said that there has been a reofending of corruption. A contitutional court judge, namely (PA) also convicted as a criminal for his act of corruption.
That is what is called an indicator which is behind the view that no matter how severe the sanctions imposed on corruptor as a -medication‖ to cure the State from its -diseas‖ called corruption it is still failed to serve the regulatory principle, preventing other people, even in the same capacity that constitutional judges no longer commit the same crime, namely Tipikor. So that, in accordance with the title of this research, it is necessary to do a reconstruction of criminal sanctions that have been imposed on the perpetrators of corruption. The goal is to find the 160 theoretical basis of existing and the future of the Indonesian criminal sanctions for corruptors. With the new theory it is hoped that failures are no longer be found in the purpose of punishment or punishment. Thus an ideal theoretical basis is found, namely the basis of the value of the Dignified Justice.
Retributivism or Kantianism is a theory that is quite consistent with the theory of Dignified Justice, except the reconstruction dimension in Dignity Justice which is more orienting to humanizing humans (nguwongke uwong) failed in the case (AM) above. Likewise, there is an impression that in the case of (AM), it appeared that the prevention theory or resocialization theory proposed by Bentham to fix the theory of retributivism as a basis for the regulation and imposition of criminal sanctions also failed to achieve its purpose. Bentham failed, because the life sentence sanction imposed on (AM) as described above is visible does not allow people to return for a reintegration with the community anymore, he (a convicted individual) can be said to die in prison once and for all.
Based on the dignified justice, the general view that dominating the basis of criminal law sancrion, including the setting of criminal sanction whic seemed as unquestionable that the policy formulation on sanctions should be oriented to rehabilitation after and before the crimes were committed, including the extraordinary crime like Tipikor has failed. In fact, so far, in the construction it is believed that rehabilitation will produce the next result, namely the maintenance of national or community integration. It has been coined as social integration,because in a criminal case as experienced by (AM), the matter concerns was not only related to (AM) itself. Behind (AM) there are also his many sympathizers who are also litigants and affected by high sanctions imposed on (AM).
Then back to what has been stated above, it has been sait that there has been risen the frustrated construction or thinking that corruption was so harm Indonesia, its society and nation including all humanswithin the Sate as the creatures of God Almighty. It has been arisen a general way of belief/construction/thinking was in Indonesia that corruption was like an incurable disease. In another words, it has been said that corruption has become a very malignant cancer in -the body‖ of the Indonesian people and nation which is no longer possible to be treated. Because it can no longer be treated, it has become a culture or a just way of life. Within that believe contained a great sense of frustration for the Indonesia criminal law, including frustration with the principle of regulating criminal sanctions.
However, Kantian's die hard insisted; for them since corruption is a dangerous disease, or -a very malignant cance‖, therefore it is justified as wellan awareness that the disease of corruption should called an extraordinary disease. As an extraordinary disease it potentiality causing imediate death to -the body‖ or the nation. Intended by -body‖ is the Unitary State of the Republic of Indonesia (NKRI). NKRI is said to be a -body‖, because it is analogous to an intact micro system, namely the body and soul of a human being (a people). Emerge the Kantian ideas within some criminal jurists in the country the Kantian philosophy/construction behind heavy criminal sanctions are now commonly understood and at the same time justifying the idea/construction that corruption must be treated in away that is extraordinary or with-medications‖ which is also extraordinary as well. In criminal law , the -medication‖ or the extraordinary criminal sanction is including the death penalty.
The reconstruction in this study suggests that the idea behind -medication‖ or criminal sanctions have been offered and has been used to be directed towards eradicating the main target, namely corruption as -a cancer‖ which is very malignant in the -body‖. The human being (corruptors) has been, in this case the perpetrators of criminal acts corruption is the disease. This is not in line with the believe in the Pancsila system, and in the Dignified Jisticephlilosophy.
As has been stated many times, the Dignity Justice philosophy is the Indonesia Indonesian jurisprudence. In the perspective of dignified Justice offered here, the efforts made are not just to eradicate corruption by injecting extraordinary medicine into the -body‖ to control, or if necessary to kill the causes of malignant cancer solely. But, within the perspective of Dignity Justice, the handling of corruption (the focus of criminal sanctions) must be based on the values of justice according to the law.
Intended by the values of justice according to the law, among other things with the spirit in the soul of the nation (Volksgeist) Indonesia, namely the spirit of law in the soul of the nation (Volksgeist) which is called maintaining balance and proportionality in or according to law. This balance is needed so that the most malignant causes of -cancer‖ are lost, and do not create feelings of frustration or bankruptcy against criminal law, then corruption is 161 made into culture. Nor does it cause an effect that is equally dangerous, or criminogen towards the -body‖ as a whole and actually counter productive, including turning off the -body‖ and the soul that must be built.
Reconstruction according to theory/philosophy of Dignified Justice contains the purpose of criminal law based on the spiritual balance of values in the concept of justice. Justice that is understood in the theory of Dignified Justice is a justice that humanizes humans (nguwongke uwong). This includes the concept of justice that humanizes human beings, namely the value of justice itself, the value of benefits and the value ofcertainty according to the law.
This clearly is a different ways with the concep of justice which contained antinomy with certainty and utility in the construction stated by Radbruch. 2 According to Radbruch, if justice is intended, then there is the possibility of certainty and usefulness beignored. But in Dignity Justice philosophy, in justice there is a balance and maintained proportionality in the law. Law here including regulatory principles behind the criminal sanctions on ciminals in generals, including for perpetrators of corruption which is expected to be used to overcome the problem of corruption in Indonesia.
The desired balance includes legal protection to the public interest (victim) without sacrificing the interests of individuals, especially perpetrators of criminal acts. This is among other things the dimension of balance in justice that humanizes humans. Dignified justice suggest a human dignity orientation (nguwongke uwong). Men, even he is a criminal must be treated as the creation of God Almighty; humans are Pancasila creatures, not a desease.
The thought or construction behind the current Penal Code (KUHP), which regarded as still a product of Dutch colonial heritage, has been in Indonesia for more than 100 years old. Today there should be a comprehensive renewal in order to avoid a paradox in enforcing criminal law. As is known, the Penal Code was adopted from a country that adheres to the principles of liberalism and capitalism, this has already been perceived as less in line with the law source of all laws in Indonesia, i.e. Pancasila in as the constitutional provision in its Preambule.
Evidently, in the Criminal Code, including in the law of Eradication of Corruption Crime regarding the criminal system stipulated in Article 10 of Law No. 1 of 1946 one may find the death penalty. In fact, there is an opinion that in essence the death penalty (capital punishment) it is no longer relevant to be applied in Indonesia, after the amendment to the 1945 Constitution. Meanwhile, it is argued that the death penalty is considered contrary to Article 28, namely on human rights which states: -Everyone has the right to life and the right to maintain life and life‖. Because of this they argue that the death penalty should be abolished.
The research also found that there was a view that there was inconsistency behind many regulatory principles, including the principle of regulating criminal sanctions for perpetrators of corruption.According to that opinion, the Stufenbau theory from Hans Kelsen, it has been followed as the source of the Republic of Indonesia legal order and the order of the Indonesian legislation as stated in The link between Kelsen's stufenbau theory and the principle of regulating criminal sanctions against perpetrators of corruption in an effort to eradicate corruption should be put forward. According to Kelsen, an applicable law in certain aspects mus not contain contradiction within. The determinant that there is no conflict is that every arrangement must be based on higher-level regulations. 162 harms state finances, is obliged to return the intended loss.‖ That is, according to this Act, the return of state finances is not followed by punishment.
It appears from the description that there are weaknesses in the arrangement. With the imposition of -sanctions‖ or those stated above -cancer killer medicines‖ returning state losses, the perpetrators of corruption do not need to be sentenced to prison again. The -cancer killer mediines‖ tool in the regulation of Article 4 of Law No. 31 of 1999 seems paradoxical or contradictory (contains weakness), and potentially criminogenic, can create new problems when faced with Article 35 of Law No. 17 of 2003 concerning State Finance.
The ideal reconstruction of sanctions arrangements for the perpetrators of the value-based corruption of dignified Justice is offered here. Among other things the regulatory principle must be oriented (postulated) the system. If the regulatory principle is used that if there are conflicts in the arrangement as above, then the law dictates so that from the two regulations regarding criminal sanctions for corruption it is sought which regulations are more appropriate to be used as the basis for suing someone. Dignified Settlement (Systemic) is sought in the legal principle, namely the principle oflex posteriori derogate legi priori.
The ideal reconstruction is used if there is a conflict between the old law and the new law and the new law does not revoke the old law, then the new law applies. Still in the perspective of most ideal theory of dignified Justice, in law enforcement according to the soul of the nation (Volksgeist) even the money corrupted is returned, still the perpetrators must be punished according to the law. That is, the principle of regulation of lex specialis (Law on Corruption Crime) derogate legi generali (Law No. 17 of 2003 concerning State Finance).

Conclusion: -
It is still known in the legal system in Indonesia the principles of regulating criminal sanctions for perpetrators of criminal acts of corruption, both in the Corruption Law and other legislation. It's just found that there are weaknesses, among others, the overlap or paradox of general regulations with special regulations regarding criminal sanctions on corruption.
Reconstruction based on the Dignified Justice philosophy can be offered, namely by paying attention to the dimensions of justice that humanize human beings in every type of criminal sanction, including criminal sanctions for perpetrators of corruption. Likewise, a system-oriented Dignity Justice postulate can be offered to fix weaknesses in regulating criminal sanctions for perpetrators of corruption. In this case the principles of law are used. For example, if there is a conflict between the Corruption Law and other laws, then in the system postulate, which is also adhered to in a special regulation of dignified justice (lex specialist ) overrides (derogat) general rules (legi generali).
It seems that the Dignified Justice theory, except the emphasis on values in Pancasila, fixes the theory of imposing criminal sanctions directed at rehabilitation, or what is often also known as organic theory (the organic theory). Men sequence the organic theory the community is a living organic society, with life that is free from and controls the members who are part of the formation of the organism.
According to the vision of the theory of providing criminal sanctions that are organizational in nature, the perpetrator of the act, as is the criminal, has no benefit at all for the community, so that is the reason for him not being in the system. His incompetence has caused him to be separated from his community. As someone who is separated from his community is a situation that is empty and nonsense for people who hold a strong stance on the conception of an organic society, therefore a great effort must be made to return to the normal situation again, integrating the already separated into the body where he has become a part of it.
The approach that underlies the views as stated above presupposes that there are no other truths that might exist outside a community, so that when a possibility against the community has been ruled out, the perpetrator of the crime is the person who made a mistake, and that is why the road to redeem himself is through education (or reeducating, as seen in the case stated above) by separating the perpetrator from error, he will be guided by the truth to values and self-sufficiency. This view, in the Dignified Justice Theory, is called humanizing humans (nguwongke uwong). Rehabilitation and integration into the community are produced together and immediately. Therefore sometimes people are as if 163 looking at a theory of criminal sanctions from the view of a society which is an organism; further than that, there are times when society can also be understood in relation to the meaning of selected people. 3 Regarding what has just been stated above, the Dignified Justice theory builds a construction that may be said to be new or original and authentic, namely that in regulating criminal sanctions for perpetrators of criminal acts of corruption, humans are not seen as -cancer‖ or disease. Humans are seen as noble creatures of God. Whatever sanctions are formulated and brought down on humans must be seen as an attempt to reshape that age in its original nature as a noble creature of Godhead.