p–ISSN: 2723 - 6609 e-ISSN: 2745-5254

Vol. 4, No. 10 October 2023 http://jist.publikasiindonesia.id/

Doi: 10.59141/jist.v4i10.754 1775

REVIEW OF THE PUNISHMENT OF SUBSTITUTE MONEY AND ITS

CONSEQUENCES IN THE CRIMINAL ACT OF CORRUPTION (STUDY OF

2

3

*Correspondence

ABSTRACT

Keywords: corruption;

Introduction

The criminal act of corruption is a deviant behavior and is contrary to the values of

truth, morals, and ethics (Setiawan &; Jesaja, 2022), as well as acts that are hated and

prohibited by any religion (Sakinah, 2014). In the context of Islam, corruption is an act

that is contrary to the principles of justice (al-" is), accountability (al-amanah), and

of Criminal Acts of Corruption Jo. Law Number 20 of 2001 concerning Amendments to

Law Number 31 of 1999 concerning the Eradication of Criminal Acts of Corruption.

Although it is clear that both religion and the state have prohibited corruption, corruption

cases in Indonesia continue to increase. (Arifin, 2015).

Romli Mukayatsyah, Natangsa Surbakti, Muchamad Iksan

The criminal act of corruption shakes the joints of the life of the nation and state

(Sinaga, 2017), therefore the criminal act of corruption is considered an extraordinary

perpetrators of corruption crimes in addition to being sentenced to the main crime are also

sentenced to additional crimes.

Additional penalties are regulated in Article 18 of Law Number 20 of 2001

concerning Amendments to Law Number 31 of 1999 concerning the Eradication of

Criminal Acts of Corruption. Additional penalties for payment of substitute money are

imposed on corruptors to recover state financial losses due to corruption. Decision

Number 51/Pid.Sus-TPK/2020/PN. SMG is one of the corruption convictions that

imposes a criminal payment of substitute money. The verdict was related to a corruption

case using village cash land compensation money used for toll road construction not by

its designation, namely Rp 1,328,837,280 (one billion three hundred twenty-eight million

The purpose of this study is to determine and analyze the consequences of the panel of

judges imposing additional criminal sentences instead of money in Decision Number

51/Pid.Sus-TPK/2020/PN. Smg, as well as how the view according to Islam. The problem

will be studied using the theory of legal objectives, as well as corruption in the Islamic

view.

Research Methods

Method is a tool used to find answers to problems. This research is legal. The

research approach is in the form of a statute approach, and conceptual (Marzuki, Prayogo,

& Wahyudi, 2016). Legal materials are: primary legal materials; secondary legal

Results and Discussion

Of Corruption (Study Of Decision Number 51 / Pid. Sus-Tpk/2020/PN. SMG)

substitute money in decision number 51/Pid.Sus-TPK/2020/PN. Smg.

Every judge's decision must be considered correct, as in the principle of Res

Judicata Pro Veritate Habeteur, which is that the judge's decision is considered correct

until another judge's decision corrects it, or every judge's or court's decision is valid unless

money of IDR 1,253,837,280,-, although the judges' consideration was not too broad in

outlining the ratio decidendi imposed on the additional crime. According to the

researcher, although the principal criminal verdict is higher than the Public Prosecutor's

demand, the panel of judges can still use other facts in handing down additional criminal

sentences. So that in the end whether the additional criminal conviction meets the three

basic values of justice, legal certainty, or expediency, the researcher describes as follows:

a) Legal Justice

As a central point in law, justice can advance the good in human life according to

Gustav's view (Said & Nurhayati, 2021). If the decision number 51/Pid.Sus-

TPK/2020/PN. Smg is associated with Gustav's opinion, that the Majleis judge should

fulfillment of the five elements as alleged by the Public Prosecutor. According to

researchers, the truth behind the imposition of additional criminal payments of substitute

money, as stated in the consideration of the 4th element of the special judgment, namely

elements that can harm state finances or the state economy.

The panel of judges considered expert testimony that stated the state loss due to

unlawful acts from the convicted amounted to Rp. 1,328,837,280,-, so that the panel of

judges considered that the convict had harmed state finances amounting to Rp.

1,328,837,280,-, but witness TRI RAHAYU had entrusted funds of Rp. 75,000,000 to the

Prosecutor's Office so that the state loss amounted to Rp. 1,253,837,280,-. According to

researchers, the panel of judges used expert testimony to obtain conditions for the

Romli Mukayatsyah, Natangsa Surbakti, Muchamad Iksan

decision is to meet the principle of justice and uphold the principles of independence and

impartiality of the judiciary.

the panel of judges has also outlined considerations on the irresponsible use of toll money.

The researchers' different analyses focused on the incomplete description of the

amount of state losses contained in the 4th element, namely elements that can harm state

finances or the country's economy. According to researchers, the description of the

consideration of state financial losses based only on expert testimony is very detrimental

to the convict. The non-elaboration of the details of state financial losses used by the

convict in the 4th element, of course, is very contrary to the principle of the verdict,

namely that the verdict must contain a clear and detailed basis for reasoning. Thus, the

judge's description of judgment that only mentions state financial losses based on expert

opinion and does not fully elaborate on the details of state losses makes additional

had been purchased by the convict. According to researchers, the replacement of village

cash land assets that have been successfully purchased by convicts, when measured from

an economic point of view, the value of land that will continue to increase from year to

year will provide economic benefits for village assets. According to the researcher's

analysis, the panel of judges has missed the condition that 12 plots of land have been

recognized instead of village coffers, which still allows for a name reversal process.

The researcher's analysis is that the convict should not be sentenced to payment of

substitute money of Rp. 1,253,837,280,-, but the amount should be reduced by the

nominal money spent on each piece of replacement land. In addition, it did not elaborate

in detail the amount of state money used or could not be accounted for either by the

both by the state and the convict. The brief explanation is that the state benefits greatly

from the additional criminal payment of substitute money, while for the convicted it is

Of Corruption (Study Of Decision Number 51 / Pid. Sus-Tpk/2020/PN. SMG)

very disadvantaged because there is an incorrect calculation of the loss figure which

ultimately creates a sense of injustice. Kadi Sukarna mentions justice in his book The

Rule of Law and Political System (Sukarna, 2016, p. 24):

"a constant and persistent willingness to give everyone what should be received"

Against this opinion, the constant willingness to give everyone what should be

to researchers, the panel of examining judges has placed convicts in the same position,

and in applying the law is also the same. The enactment of additional criminal payments

instead of money is by applicable legal norms. In addition to numerical similarity,

proportional similarity must also be achieved. Proportional equality gives everyone what

is rightfully his/her according to his abilities and achievements. According to the

researchers, there was no proportional similarity in the additional criminal punishment of

payment of substitute money for convicts. The non-consideration of replacement land

assets that have been recognized and controlled by the Village Government as assets that

increase every year, until in the end the replacement land can cover state financial losses.

The factor of availability of replacement land should be able to reduce the amount of state

for services performed by the convict causes proportional conditions not to be created.

This condition is very detrimental to convicts who have provided replacement land for

the village government even though administratively it cannot be accounted for. The

panel of judges sought improvements due to the occurrence of criminal acts of corruption.

However, what happens is a law that repairs or provides compensation for the occurrence

of state financial losses. Thus corrective justice has been fulfilled through such criminal

convictions, but distributive justice is far from expected.

b) Finality or Legal Expediency

The nature of finality or expediency is relative, motivated by the goal of justice in

the content of the law that fosters good values for humans (moral values in law). The

Romli Mukayatsyah, Natangsa Surbakti, Muchamad Iksan

people's lives. Similarly, the judge's decision, when the judge thinks of benefits or benefits

to everyone, the decision reflects expediency. So the judge's decision number 51/Pid.Sus-

Given the judges' consideration for the calculation of the number of state losses due

to corruption committed by the convicts is still counted jointly and the criminal

punishment for the payment of substitute money of IDR 1,253,837,280 is only imposed

on the convicts, so according to researchers, the additional criminal punishment should

be borne jointly as stated in the judges' decision, namely "CORRUPTION CRIMES

JOINTLY AND CONTINUOUSLY" as in Primair's indictment. The additional criminal

punishment for the payment of substitute money becomes useless because the amount of

money used by the convict is not as much as the state loss so if the convict bears a larger

amount, it is feared that the convict will not be able to pay the substitute money that has

been charged to the convict.

state receivables so that all additional criminal convictions for the payment of substitute

money can be said to be state receivables. The amount of Rp 1,253,837,280, - which

becomes a substitute money automatically becomes state receivable, therefore the public

prosecutor must be able to execute the verdict. State receivables from substitute money

for state financial losses if they cannot be collected certainly cause the country's financial

status to become uncollectible state receivables. According to the researcher's analysis,

although the finance minister's regulation is known as a step to eliminate state receivables,

state receivables must still be executed so that efforts to save lost state finances through

the punishment of substitute money can be useful.

The penalty of payment of substitute money to the convict will be useless when the

The panel of judges in case number 51/Pid.Sus-TPK/2020/PN. Smg said that the

Convicted had enriched himself as evidenced by a luxurious lifestyle in daily life, besides

Of Corruption (Study Of Decision Number 51 / Pid. Sus-Tpk/2020/PN. SMG)

that the Panel of Judges also considered if the Convicted Person's wealth increased, but

the judges' considerations regarding the actions that enriched the Convicted were not

perfect. The imperfection of the judges' consideration is that the criminal act of corruption

does not clearly describe the increase in assets or personal wealth owned by the convict.

According to the researcher, it is very important that the panel of judges also consider the

(Witono, 2021), so if you consider decision number 51/Pid.Sus-TPK/2020/PN. SMG has

found imperfections, automatically resulting in no efforts to recover state financial losses

and the state again incurs losses.

c) Legal Certainty

Indonesia as a State of Law must prioritize the creation of legal certainty (Priyatno,

2012). The implication is consistent law enforcement (Herdjiono & Damanik, 2016).

Gustav said the consequence is that positive laws should not change easily (W, 2015).

The law can only change if the law is felt to be out of step with the times (McGreal, 2021).

Positive laws related to the payment of substitute money in corruption have been

known since 1960 with Perpu Number 24 of 1960 concerning the Prosecution,

regulation does not clearly explain the meaning of substitute money but only mentions

the relationship between substitute money and property "obtained" from corruption.

Referring to criminal decision number 51/Pid.Sus-TPK/2020/PN. Smg, according

to the researcher, the substitute money is interpreted by the panel of judges by Article 18

paragraph (1) b, so that the criminal sanction of substitute money is equated with the

amount of state financial losses. Researchers disagree with the judge's consideration of

the substitute money imposed on the convict because the panel of judges did not describe

in full the amount of money used by convict Joko Sarjono Bin Sudarman Gitodiharjo.

Researchers believe that the calculation of the money used by convict Joko Sarjono Bin

Sudarman Gitodiharjo is not as large as the replacement money charged to him.

Romli Mukayatsyah, Natangsa Surbakti, Muchamad Iksan

The convicts were convicted of corruption jointly and continuously. The panel of

judges in its consideration considered that the replacement money for land affected by

individual, if the substitute money cannot be calculated or proven, it cannot be punished

(Herdjiono & Damanik, 2016).

The opinion expressed by Iskandar Kamil is in line with that conveyed by Sudikno

Mertoksumo, namely legal certainty as a real strength for justice seekers against arbitrary

acts to get something expected. According to the researcher, the convict as a justice seeker

should get legal protection for the sentencing efforts carried out by the panel of judges by

not clearly outlining the considerations in the verdict, the verdict on the occurrence of

corruption crimes together in which the punishment of payment of substitute money is

only borne by the convict. So it is increasingly clear that there should be a clearer

description in the judge's consideration of the amount of money used by Joko Sarjono Bin

another party the substitute money can still be imposed on the accused as long as the other

party is not prosecuted either in the criminal act of corruption, or other criminal acts such

as money laundering, very contrary to the phrase of Article 18 paragraph (1) point b the

payment of substitute money can be made as much as the same as the property obtained

from the criminal act of corruption. According to the Researcher, the State has tried to

provide legal certainty from Article 18 paragraph (1) point b through the phrase

mentioned above, requiring substitute money that is "equal to" all profits from corruption.

The word equal can be interpreted as the situation of a balanced calculation with the

amount of state financial losses. So when the judges' deliberations only contain

concurrence but do not clearly describe the property obtained from the criminal act of

Verse 188, the prohibition of corruption is also in QS. Al Maidah Verse 38, QS. Ali Imron

Verse 161, QS. An Nisa Ayar 29.

Of Corruption (Study Of Decision Number 51 / Pid. Sus-Tpk/2020/PN. SMG)

The proceeds of corruption are haram, as the Prophet (peace and blessings of Allaah

be upon him) once advised Ka'ab's companions:

his sustenance, even if it is too late. So fear Allah, and take a good path in seeking

sustenance. Take the streets in search of halal sustenance and leave the haram. (HR. Ibn

Majah No. 2144, said to be shahih by Shaykh Al Albani).

According to ijma‟ (opinion of fiqh scholars), corruption is haram because it is

contrary to the maqashid principles of sharia. The haram seen in terms of corruption is a

fraudulent and fraudulent act that has the potential to harm state finances and public

interests (society) which is condemned by Allah SWT with appropriate punishment in the

hereafter (Utomo, 2003).

Based on the severity of the sentence, Islamic criminal law recognizes three types

of offenses, namely hudud; Qisas &; Diyat; and ta‟zir. (Rusian, 2012). Regarding the law

authority to decide the case with ijtihad. The judge's ijtihad includes the imposition of

additional criminal payments instead of money, looking at state financial losses due to

corruption. The judge in handing down the verdict must also provide justice, both fair to

the defendant and fair to the state (as a victim).

Justice in determining the law is said by Allah SWT in QS. An Nisa verse 58:

Meaning: Truly, God commands you to deliver commissions to those who deserve