Disparitas Pidana dalam Pemidanaan terhadap Pelaku Tindak Pidana Korupsi Pengadaan Barang dan Jasa

Abstract

Corruption in the procurement of goods and services has occurred numerously in Indonesia. Obviously, according to criminal law, the perpetrators of corruption in the procurement of goods and services must be held accountable for their actions through imposing criminal sanctions by the Panel of Judges, based on the court ruling that has permanent and definite legal force. There is a conspicuous disparity in sentencing on the legal facts in imposing criminal sanctions (sentencing) towards perpetrators of corruption in the procurement of goods and services in Indonesia. This research discusses the conspicuous criminal disparities in the sentencing of suspected perpetrators of corruption in the procurement of goods and services. In regard to it, this research is focused on assessing and analyzing the correlation between judicial independence and the occurrence of conspicuous sentencing disparity in corruption cases in the procurement of goods and services, the causing factors of sentencing disparity in corruption cases in the procurement of goods and services, and also regarding efforts to minimize the occurrence of sentencing disparity of corruption cases in the procurement of goods and services. The theory used as an analytical tool is the Theory of Penalty proposed by Pallegrino Rossi, the Theory of Justice proposed by Aristotle, and the Theories of Proportionality proposed by Herbert L. Packer. This is prescriptive analysis research using a normative method which refers to legal norms contained in laws and regulations and court rulings. The research uses the case approach and the law approach methods. The data are analyzed qualitatively. The research results conclude that there is a close judicial correlation between judicial independence and the occurrence of conspicuous sentencing disparity in corruption cases in the procurement of goods and services. The judicial independence, based on the provisions of Article 24 paragraph (1) of the 1945 Constitution, Article 1 paragraph (1), and Article 3 paragraph (1) of Law Number 48 of 2009, provides legal legality in the form of freedoms for Judges that have the potential to create conspicuous sentencing disparity in the case of procurement of goods and services. This is also added by the unknown application of precedent (as in Common Law) in the judiciary in Indonesia, as well as the element of the Judge's belief based on the provisions of Article 183 of the Criminal Code and Article 6 paragraph (20) of Law Number 48 of 2009. The causing factors of the occurrence of sentencing disparity in the corruption case in the procurement of goods and services include the different philosophies of sentencing adopted by the Judges in proving the defendant's guilt, the presence of elements of the Judge's belief based on the provisions of Article 183 of the Criminal Code and Article 6 paragraph (2) of Law Number 48 of 2009, the court's authority is too broad and without limitation based on the provisions of Article 24 paragraph (1) of the 1945 Constitution, Article 1 number (1) and Article 3 paragraph (1) of Law Number 48 of 2009, poor ability of some Judges in interpreting the law into concrete situations, abuse of the exercise of the Judge’s discretion, and poor morality of some Judges. The efforts to minimize the occurrence of sentencing disparity of corruption cases in the procurement of goods and services is by having the Supreme Court make a Supreme Court Regulation (Perma) which regulates the numerical sentencing guidelines for all types of corruption (as stipulated in Law Number 20 of 2001), improving integrity, legal understanding, and interpretation of Judges carried out through coaching activities, training, and education on the theme of corruption, as well as improving the recruitment system for Judges (who should be recruited by legal doctoral) that is carried out without any indication of KKN (Corruption, Collusion, Nepotism).