The low absorption rate of the Regional Revenue and Expenditure Budget (APBD). â as a result of legal constraints faced by the Head of Regions, causing fear ...
Existence of Discretion in the Corruption Case of the Head of Regions that Handled by Corruption Eradication Commission in the Period 2004-2010 Teguh Kurniawan, Eko Prasojo, Gunadi Faculty of Administrative Science, Universitas Indonesia
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Problematic Situation • The low absorption rate of the Regional Revenue and Expenditure Budget (APBD) as a result of legal constraints faced by the Head of Regions, causing fear in the use of local budgets The fear of criminalization • 2004-2013: 213 Head of Regions who are involved in corruption cases either as witnesses, suspects, defendants, or convicted including Heads of Regions who are considered innovators I Gede Winasa & Untung Wiyono
• Raise a number of questions: what exactly the case? How are these cases criminalizing the policies? • According to a number of literatures about corruption in Regional Government: • • • •
More power in financial management monopoly Weak accountability Uncontrolled dsicretion is not balanced by supervision C=M+D-A 2
Problematic Situation • Discretion as one cause! What kind of discretion causes corruption? when misuse of discretion occurs • Cases in KPK 2004-2010 that already inkracht 6 out of 30 cases are very likely related to discretion • The possibility of linkage with discretion is seen from the substance of corruption acts committed by the Head of Regions based on the indictment charged to them by the Prosecutor
• Discretion is urgently needed but can also cause problems including corruption • Need a study to see if the corruption case contains discretion
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What is discretion? • Discretion according to Robbins is the use of personal judgment officials to make policy (Robbins, 2005). Meanwhile, according to Davis (1969 in Sainsbury, 2001), a public official may exercise discretion when the effective limits of the power he possesses have the freedom to make choices in whether or not to act. According to Sullivan (2009) discretion is the authority to make choices or judgments about how to implement a program or law. Discretion is a necessary and inevitable matter in the effective implementation of tasks and in ensuring public trust in government (Burke, 1901 in Haque, 2004). Therefore, discretion involves almost every aspect of public administration (Holzer & Yang, 2005) • Although important, the concept of discretion is not well defined, and the factors that influence its application are not explicitly studied (Scott, 1997 in Holzer & Yang, 2005). Discretion, therefore, faces a great dilemma in the Public Administration, which is both indispensable and problematic (West, 1984 in Holzer & Yang, 2005) 4
When discretion becomes corruption? • One of the problems arising from the application of discretion is corruption. This can be seen from the opinions of Gould and Amaro-Reyes (1983 in Quah, 1999) and Glaeser and Goldin (2006). Concerning the linkage between discretion and corruption, according to Klitgaard (1998a, 1998b), corruption is a monopoly of power over goods or services coupled with discretionary power over who will or is entitled to receive such goods or services but without offsetting accountability • Some other literature also explains that discretion will result in corruption when abuse occurs in applying it. According to Williams, abuse against discretion refers to a situation in which a discretion is done by (1) unreasonable; (2) irrationality; (3) ulterior motives; (4) improper objectives; (5) failure to account for relevant considerations; (6) consider irrelevant considerations; and (7) bad faith (Williams, 1994) 5
Research question and objective • Is there discretion in various corruption cases which are handled by the KPK and is indicated because of the discretion or indeed the case is purely a crime? • To explain the true situation of various cases of corruption of the Head of Regions handled by the KPK to provide clarity about the presence or absence of discretion as well as criminalization in such cases
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Research methods • This research is more based on the constructivist paradigm that views knowledge as a social construction and can change depending on the circumstances • This research uses qualitative research method with the case study. The effort to build the reality of the discretion issue in the case of corruption by the Head of Regions is done normatively because the researcher relies more heavily on the Court Decision which has had the permanent legal force (inkracht). Court Decisions are analyzed normatively, ie, an analysis of the rule or substance of the law that becomes the norm in some laws and regulations related to various cases of corruption as a case study • Based on the method of choosing the case, the five cases of corruption discussed in this research are Abdullah Puteh (Governor of NAD 2000-2005 - Procurement of Goods and Services); Ismunarso (Regent of Situbondo 2005-2010 – Use of APBD Usage); Arwin AS (Regent of Siak 20012011 - Licensing); Mochtar Mohamad (Mayor of Bekasi 2008-2013 - Use of APBD and Bribery); and Amran Abdulah Batalipu (Regent of Buol 2007-2012 - Bribery)
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Violation of Rules Conducted by the Head of Regions and It Sources of Authority Convicted
Action Considered to Violate the Rules of Law
Abdullah Puteh Payment of money for procurement at the time when the fund has not been budgeted Governor of NAD (2000Direct appointment of provider of goods while not a sole provider of goods, in addition 2005) to the provision of providers by the Governor when the value of goods is not up to 50 billion rupiah
Ismunarso Regent of Situbondo (2005-2010)
Arwin AS Regent of Siak (20012011) Mochtar Mohamad Mayor of Bekasi (20082013) Amran Abdulah Batalipu Regent of Buol (20072012)
The Rules are being Violated Article 7 (4) Presidential Decree 18/2000
Authority Analysis Binding
Article 12 (2) c and Article 11 number 1 and 3 Presidential Decree 18/2000
Binding
Signing as the buyer on the agreement / contract of sale and purchase
Article 7 (3) f Presidential Decree 18/2000
Binding
Placement of APBD funds in personal accounts
Binding
Directly deducting Regency / Municipality special treatment funds
Article 4 and Article 11 Government Regulation 105/2000 Article 1 Minister of Finance Decree 451/2001
The withholding fund is not included in the APBD revenue entry
Article 7 Government Regulation 105/2000
Binding
The reasons for urgent need are not by the provisions Placement of Regency Government funds to private parties is not done through the issuance of Regional Regulations Authorization to unauthorized parties
Article 16 Law 25/1999 Article 41 (5) Law 1/2004
Binding Binding
Article 2 (2) Government Regulation 105/2000
Binding
Interest on deposits and investment returns are not entirely left to the treasury of the Regency Government
Binding
Issuance of Business License for Utilization of Wood Forest Products in Industrial Plantation Forest (IUPHHK-HT) as opposed to the rules
Article 193 (2) Law 32/2004 jo Article 24 Government Regulation 105/2000 jo Article 58 (2) Government Regulation 58/2005 Minister of Forestry Decree 10.1/Kpts-II/2000 and 21/Kpts-II/2001
Order subordinates to conduct fictitious activities and sign fictitious memos in the framework of fictitious activities
Article 3 (3) Law 1/2004, Article 28 Law 32/2004, Article Binding 132 (1) Minister of Home Affairs Regulation 13/2006
Binding
Binding
Receiving bribes to move it to publish and sign some letters (letter to Central Sulawesi Article (4) Law 28/1999, Article 28 letter d Law 32/2004, Binding Governor for recommendation of issuance of Mining License/IUP and letter to Head of Article4 (1) c and Article 6 (2) Minister of Agrarian National Land Agency/BPN for issuance of Cultivation Rights/HGU) whereas applicant of Regulation 2/1999 IUP and HGU do not fulfill requirement 8
Existence of Discretion Authority • The acts of corruption committed by the Heads of Regions are not caused by discretion because the acts committed by the Heads of Regions should be bound by various applicable laws and regulations. Discretion can occur when the legislation gives freedom to the Head of Regions to vote because it is given a choice, because there is no rule of law governing, because the norms of existing rules are unclear, and because of the urgency • Acts that violate or contradict various provisions in the legislation can be categorized as official actions that exceed the authority when referring to the Law 30/2014 so that the actions taken by the Head of Regions become invalid. Also, the decisions taken by the Heads of Regions are decisions that are made by not following the procedures contained in various laws and regulations. Disobedience to the procedure is one of the forms of abuse of authority from the Heads of Regions as referred to in Article 18 paragraph (1) letter c of Law 30/2014 on Government Administration namely the decision is made in contravention of the provisions of the legislation 9
Implication on corruption and discretion theory • Related to discretion as one of the causes of corruption as stated by Klitgaard that C = M + D - A (1998a, 1998b), the results of this study indicate that discretion is not the cause of corruption cases by the Head of Regions in Indonesia. Various cases of corruption studied in this study indicate that the cause is an abuse of authority and not discretion because in many cases it seems unavailable discretion because the various actions undertaken by the Head of Regions is bound by various arrangements that exist. The various acts committed by the Heads of Regions are an abuse of authority that goes beyond the authority possessed by taking actions contrary to various laws and regulations • The results of this study also show that the monopoly as intended by Klitgaard is something that should be done. Various acts committed by the Head of Regions, in this case, is an action that should be taken by officials and can not be done by others. Meanwhile, the study also confirmed that the absence or inadequacy of accountability mechanisms is one of the factors that cause corruption to occur • Thus, this study proposes an improvement of corruption formulation by Klitgaard to C = M + AP - A (corruption = monopoly + abuse of power - accountability) or corruption equal to monopoly plus abuse of authority minus accountability 10
Conclusion • There is no discretion in the act of corruption committed by the Head of Regions which became the case in this study. The Head of Regions are proven to have acted in violation of various laws and regulations, whether jointly or assisted by other parties, and conducted to provide personal benefit and not for the public interest • Violations of the various laws and regulations when analyzed using the norms contained in Law 30/2014 is an abuse of authority because it exceeds the authority he has
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Thank You
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