MK Rejects Test of Materiality of Tipikor Article, Financial Losses in the Spotlight

Constitutional Court Building (Diah Ayu/VOI)

JAKARTA - The Constitutional Court (MK) rejected the material test of the Corruption Tipikor Law which questioned the element of state financial losses, while confirming that financial losses remain a key element. This decision concerns the PT Merpati Nusantara Airlines case regarding aircraft leasing which is considered a business risk without the element of bribery or personal gain.

The Constitutional Court (MK) rejected a request for a material test against Article 2 paragraph (1) and Article 3 of Law Number 31 of 1999 concerning the Eradication of Corruption. Although it was still declared constitutional, the Constitutional Court acknowledged the potential for multi-interpretation in the application of the norm.

The decision on cases No. 142/PUU-XXII/2024 and 161/PUU-XXII/2024 was read in a plenary session in Jakarta, Wednesday, December 17. In its consideration, the Constitutional Court recommended that the law-makers reformulate the two articles. This step is considered necessary to ensure legal certainty and consistency of implementation at the law enforcement level.

The applicant's lawyer, Maqdir Ismail, considered the decision to be ambivalent. He highlighted the substance of the article, which has now been adopted into Articles 603 and 604 of the new Criminal Code (KUHP) which will come into force next year.

"One side of the application was rejected, but on the other side the Constitutional Court asked for improvements. Without legal political clarity, this debate on state losses will continue to repeat itself," Maqdir said in Jakarta, Thursday, December 18.

According to him, the focus of eradicating corruption should be on the elements of bribery or abuse of authority, not just financial losses which often do not include evidence of evil intentions.

Hotashi Nababan, one of the applicants and a former senior BUMN official, expressed his concern about the risk of criminalization of public officials. He assessed that a person could be charged with corruption based solely on the calculation of state losses without proof of evil intent (mens rea).

This decision was colored by a different opinion (dissenting opinion) from constitutional judge Arsul Sani. Arsul argues that the Constitutional Court should grant a portion of the application by inserting the phrase "with the intention". The addition is considered crucial to confirm the element of evil intent in a corruption crime.

This material test was previously submitted by a number of figures, including former Governor of Southeast Sulawesi Nur Alam and former Director of PT Perikanan Indonesia (PT Perindo) Syahril Japarin. They urged that the phrase state loss should no longer be an absolute element without any real evidence of bribery.