Official Orders As A Ground Eliminating Liability For The Criminal Offense Of Corruption

 

Written by : Yogi Arie Rukmana

Managing Partners Rukmana & Partners Law Firm

Introduction

 

In political discourse, the term “corruption” is widely used to refer to anything dysfunctional or detrimental to the public interest. Within the context of governmental governance, corruption is attributed to government officials who make decisions motivated by money or other forms of personal gain, unlawfully enriching other individuals or corporations. On this understanding, corruption may be construed as the abuse of public office for personal gain, encompassing not only economic benefits such as money and goods but also other forms of unfair advantage (Lisa J. Danetz and Eric Petry: 2025).

 

In Indonesia, corruption involving public officials has increased and become widespread across various sectors of government. The impact of such corruption gives rise to a crisis of public trust in government and impedes the inflow of foreign capital investment into Indonesia. Indeed, corruption involving public officials – particularly senior political elites – may trigger national political instability. It should nonetheless be noted that not all public officials charged with corruption act with criminal intent (mens rea); rather, some act on the basis of official authority/policy or an order issued in their capacity as public officials.

This paper discusses corruption and official orders as a ground for the elimination of criminal liability. Its principal focus is a review of public officials’ policies in relation to official orders that are deemed to constitute acts of corruption. The discussion herein centers on the issue of official orders as a ground eliminating liability for the criminal offense of corruption.

 

 

Qualification and Types of Corrupt Conduct by Public Officials

 

Corruption may occur in every sector of government – executive, legislative, and judicial – as well as in the business world. This makes corruption a genuine threat to the rule of law and human rights, weakens good governance, distorts competition, impedes economic development, endangers democracy and the stability of democratic institutions, and undermines the moral foundations of society and social justice.

 

 

As modern states evolve, corruption may likewise evolve in response to changes in society and legislation. Corruption can even adapt to technological advances, meaning that it is capable of adapting to a wide range of changing contexts and circumstances. The actors involved in corruption may include anyone – government officials, civil servants, politicians, police officers, prosecutors, judges, businesspeople, and members of the public alike. Corrupt conduct likewise takes a wide variety of forms. In the context of public officials, corrupt conduct by public officials may be distinguished into several types, as follows:

• Public officials who breach public trust;
• Public officials who abuse their office as public officials;
• Public officials or former public officials who misuse information obtained in their capacity as public officials;
• Public officials who engage in conduct that adversely affects the honesty or objectivity of a public official in exercising authority or carrying out official duties.

 

 

Under the Indonesian legal system, the anti-corruption criminal law regime refers to the legal framework, institutions, and law-enforcement capacity to prevent, detect, and prosecute corruption. Pursuant to Law Number 31 of 1999, as amended by Law Number 20 of 2001 on the Eradication of Corruption Crimes, there are at least thirty (30) types of acts qualified as corruption offenses, which are simplified into seven (7) categories of criminal offenses (Zainal Arifin Mochtar & Eddy O.S. Hiariej: 2018: 21–26):

• Corruption offenses relating to state finances;
• Corruption offenses in the form of bribery;
• Corruption offenses relating to embezzlement in office;
• Corruption offenses relating to extortion;
• Corruption offenses in the form of fraudulent acts;
• Corruption offenses relating to the procurement of goods and services; and
• Corruption offenses in the form of gratification.

 

The above categories of corruption offenses cannot be treated uniformly in law-enforcement practice, because each category formulated under the Anti-Corruption Law contains different elements of the offense (bestanddeel delict), such as the legal subject, the requisite degree of fault or mens rea, the elements of the act, and the applicable criminal sanctions. For example, Article 2(1) of the Anti-Corruption Law carries a minimum sentence of four years, whereas Article 3 of the Anti-Corruption Law carries a minimum sentence of one year (now regulated under Articles 603 and 604 of the Criminal Code).

 

In practice, law enforcement authorities more frequently rely on Article 2 Paragraph (1) of the Anti-Corruption Law (now Article 603 of the Criminal Code) than on other corruption-related provisions, such as those concerning bribery, extortion, fraudulent acts, embezzlement in office, gratification, and corruption in the procurement of goods and services. Reliance on this provision reflects a more subjective approach on the part of law enforcement authorities, as it facilitates the process of proof and enforcement. This practice has consistently been a subject of debate among criminal law scholars.

 

According to the ICW Report (2024), in nearly 90% of corruption prosecutions in Indonesia, defendants are charged under Article 2(1) (Article 603 of the Criminal Code) or Article 3 of the Anti-Corruption Law (Article 604 of the Criminal Code). One reason is that these two provisions – particularly Article 2(1) of the Anti-Corruption Law – are comparatively easy for public prosecutors to prove, owing in part to their vague legal norms, which render them readily usable (as a “rubber article”) by law enforcement authorities to ensnare virtually anyone. The construction of these two provisions functions like a double-edged sword: first, they are highly effective in prosecuting state officials, politicians, and businesspeople who, individually or in collusion, plunder public funds through sophisticated schemes for personal, group, or political-party gain; second, these same provisions are not infrequently used by law enforcement officials entangled in judicial-mafia practices to extort prospective suspects or to eliminate political rivals (Eddy O.S. Hiariej: Kompas, 7 May 2015).

 

Official Orders and the Elimination of Criminal Liability

 

As a matter of legal doctrine, criminal law recognizes grounds for the elimination of criminal liability. First, an excuse (alasan pemaaf) is a ground that eliminates the culpability of the perpetrator of a criminal act. Second, a justification (alasan pembenar) is a ground that eliminates the unlawfulness of a criminal act. One such justification is an official order. Criminal law theory recognizes the maxim id damnum dat qui iubet dare, eius vero nulla culpa est, cui parrere necesse sit, meaning that criminal liability is not imposed on those who dutifully carry out an order, but rather on the party who issued the order. Provisions concerning offenses related to official orders are set out in Article 51 of the Criminal Code (Moeljatno) and Article 32 of the National Criminal Code. To avoid any ambiguity, the text of both provisions is reproduced below:

 

Article 51 of the Criminal Code (Moeljatno):

(1) A person who commits an act in order to carry out an official order given by a competent authority shall not be punished.

(2) An official order given without authority does not eliminate criminal liability, unless the person ordered, acting in good faith, believed that the order was given with authority, and its execution fell within the scope of that person’s duties.

 

Article 32 of the National Criminal Code:

“Any person who commits a prohibited act shall not be punished if the act is committed in order to carry out an official order from a competent official.”

 

Under these provisions, an official order constitutes a justification eliminating criminal liability. Nevertheless, not every official order may be relied upon as such a justification. Article 51 of the Criminal Code and Article 32 of the National Criminal Code require that there be a relationship governed by public law between the person giving the order and the person receiving it. In other words, this provision does not apply to relationships of a private (civil) legal nature.

 

There are at least three preconditions, or parameters, under which a person may be relieved of criminal liability for corruption on the basis of an official order: first, the person giving the order and the person receiving it must be situated within the sphere of public law; second, there must be a relationship of subordination, or an employment-based relationship, between the person giving the order and the person receiving it; third, the official order must be carried out in a proper and proportionate manner so as not to exceed the bounds of reasonableness (Eddy O.S. Hiariej & Topo Santoso: 2025: 39). These three parameters provide a sufficiently clear picture of official orders as a ground eliminating criminal liability. On this basis, it may be concluded that a public policy issued without criminal intent (mens rea), aimed at addressing matters of public interest and the livelihood of the wider community, which nonetheless results in a financial loss to the state, should not, in principle, be subject to criminal punishment. Even where such a public policy involves maladministration, the appropriate remedy should be to correct the administrative error. Although this remains open to debate, it at least provides a clear boundary between policies that fall within the category of corrupt acts and those that do not. Accordingly, the element of criminal intent (mens rea) is of critical importance and must be proven in the course of trial.

 

Application in Judicial Decisions

 

According to Eddy O.S. Hiariej (2011), three parameters may be used to determine whether a policy has entered the domain of criminal law: first, the policy is used as a gateway to commit a crime, which must be established through the doctrine of causality in criminal law, showing that the policy and the crime form a single chain of events constituting a criminal offense; second, there must be moral hazard in the making of the policy – moral hazard being closely related to a person’s state of mind in performing an act, a matter that is far from easy for the public prosecutor to prove, and which may be established through the theory of objectified intent, based on the correspondence between trial facts and valid evidence; third, the policy must violate applicable regulations. These three parameters are cumulative in nature. On this basis, it may be concluded that where a public official issues a decision or policy on the basis of an official order, without criminal intent, but which nonetheless results in a financial loss to the state, that official should not, in principle, be subject to criminal punishment. Meanwhile, public policy that is unlawful in nature may also be assessed by reference to the principles of good governance.