Constitutional Court Re-Examines New Criminal Code Provisions on 'Catch-All' Corruption Articles

Provisions in Law Number 1 of 2023 on the Criminal Code (KUHP) are once again facing a challenge at the Constitutional Court (MK). This time, the petitioners are contesting Articles 603 and 604 of the KUHP, deemed “catch-all” clauses that could lead to criminalisation by law enforcement officials.

The lawsuit was filed by a business actor and taxpayer currently embroiled in a corruption case at the Medan District Court. The petitioner views the articles as causing legal uncertainty and norm conflicts.

Potential Norm Conflicts

The petitioner’s legal representative, Muhammad Deni Rambe, explained that his client was accused of intervening with local officials regarding the manipulation of a company’s building area reduction. This led to charges under corruption provisions.

“The petitioner is an Indonesian citizen accused of intervening with officials in the regional revenue body, thus charged with violating Article 2 paragraph (1) of the Corruption Eradication Law,” Deni stated during the plenary hearing at the MK building in Jakarta on Tuesday (1/4).

In his arguments, the petitioner highlighted the phrases “benefiting oneself or others or a corporation” and “causing loss to state finances or the national economy” contained in Articles 603 and 604 of the KUHP. These phrases are considered open to multiple interpretations and prone to misuse.

“The application of Articles 603 and 604 faces complex norm conflicts, both vertically and horizontally, and even has the potential to be misused as a tool for criminalisation,” Deni said.

Regulatory Asynchrony

Furthermore, the petitioner assessed that there is a lack of synchronisation between the new national KUHP and the existing Corruption Eradication Law (Tipikor). Deni exemplified the use of the element “benefiting oneself,” which often overlaps in legal practice in the field.

“The petitioner was found to have benefited himself, even though that element is explicitly only contained in Article 3 of the Tipikor Law,” he said.

The petitioner also criticised the shift in the concept of “causing loss to state finances,” which is seen as creating uncertainty following previous MK decisions. Therefore, the petitioner requests that the MK declare both articles contrary to the 1945 Constitution.

“The petitioner requests that the Court declare Articles 603 and 604 of the KUHP contrary to the 1945 Constitution and without binding legal force,” Deni emphasised.

Response from Constitutional Court Justices

In response to the petition, Constitutional Court Justice Adies Kadir reminded the petitioner to strengthen the argumentation, as the MK has repeatedly issued decisions on similar norms.

“The petitioner must thoroughly study the existing MK decisions and clearly explain the differences,” Adies said.

In agreement, Constitutional Court Justice Saldi Isra emphasised that this petition should not get trapped in the principle of nebis in idem or repeated testing of the same material. He stressed that the MK’s focus is to test norms, not the concrete case being faced by the petitioner.

“What must be explained is why Articles 603 and 604 are contrary to the 1945 Constitution, not the story of the concrete case anymore,” Saldi clarified.

He added that without new, stronger argumentation, it would be difficult for the Court to change its legal stance. “If there is no stronger reason, it will be difficult for the Court to shift from previous decisions,” he concluded.