Study of Penal and Non-Penal Approach on Prevention of Corruption in Indonesia

Criminal policy can be interpreted in the narrow sense that criminal politics is described as a whole principle and method, which is the basis of the reaction to violations of laws in the form of criminal. And in a broad sense this is the overall function of law enforcement officials, including the workings of the court and the police. While in the broadest sense it constitutes the whole policy, which is carried out through legislation and official bodies that aim to uphold the central norms of society. Factors Underlying the Occurrence of Corruption Crime: a) Lack of salary for Civil Servants compared to needs that are increasingly increasing. b) Background of Indonesian culture or culture which is the source or cause of widespread corruption. c) Poor management and less effective and efficient controls that will provide opportunities for people to corruption. d) Modernization breeds corruption. This paper examines penal and non-penal approach on preventing corruption case in Indonesia. The method used for this research is normative legal approach, which comparing some cases concerning to corruption in Indonesia. Keyword: Corruption, Penal, Non Penal


INTRODUCTION
Corruption is now a trend. Crime trends for the elite who have been in power, bears and who have positions. Corruption seems to be a common thing among officials, politicians and law enforcers. Corruption in Indonesia is growing rapidly. Corruption is widespread, is ubiquitous and occurs systematically with sophisticated engineering and utilizing modern technology. Someone who is aware of an alleged corruption crime often does not want to testify, even if they want to report and testify, there are only law enforcers who do not want to take legal action. That is why in the reality of everyday life, corruption is considered normal and understood by many people. People who are accustomed to corruption will find it difficult to distinguish which actions are corrupt and which are not corrupt. Not only in Indonesia, there have been many criminal acts of corruption, even in the whole world of corruption is a form of crime that occurs a lot today. The lifestyle of elite people is now one of the causes of widespread corruption throughout the world.
Corruption is one type of white-collar crime. In contrast to conventional crimes involving street crimes (street crime, blue collar crime, blue jeans crime), against the white collar crime, the parties involved are those who are prominent people in the community and are usually highly educated (Fuady, 2004: 22). Corruption is a disease that infects Indonesia which has spread throughout the Indonesian body. As a disease, the infected body should be amputated immediately so that it does not spread to other parts of the body.
According to Fockema Andreae, the word corruption comes from Latin Corruptio or corruptus. Which then goes down to many Europeans like England, namely corruption, corrupt; France, namely corruption and the Netherlands, which is corruptive which then goes down to Indonesian becomes "corruption" (Hamzah, 2005: 4).
Literally, the meaning of the word corruption is decay, ugliness, depravity, dishonesty, can be bribery, immorality, deviation from chastity, words or words that are insulting or slanderous. According to Benveniste in Arsyad (2013: 3), corruption is defined as 4 types: 1. Discretionary corruption, is corruption carried out because of the freedom to determine policy, even though it appears to be legal, not practices that can be accepted by members of the organization; 2. illegal corruption, is a type of action that intends to disrupt language or the purposes of certain laws, regulations and regulations; 3. Mercenery Corruption is a type of corruption that is intended to gain personal gain, through abuse of authority and power; 4. ideological corruption is a breakdown of illegal corruption and discretionary intended to pursue group goals. In Law Number 31 Year 1999 jo Law Number 20 of 2001 concerning the eradication of criminal acts of corruption in article 2 and article 3 defines corruption as follows: 1. Anyone who intentionally violates the law commits an act of self-enrichment or another person or a corporation which can harm the State's or the country's economy. 2. Everyone with the aim of enriching themselves or other people or corporations, misusing the authority, opportunity, or means available to him because of a position or position that can harm the State's or the country's economy. In general and simple, corruption can be interpreted as an abuse of power / trust for personal gain. The definition of corruption also includes the behavior of public sector officials, both politicians and civil servants who enrich themselves improperly and violate the law, or people who are close to bureaucratic officials by abusing the power entrusted to them (Fakrullah, 2009: 231).
One way for people to live in prosperity is through tackling corruption, so that tackling corruption can be the beginning of resolving various crises in Indonesia. In the context of the discussion of crime prevention issues, including corruption prevention, the term Political Crime is known. Criminal Policy as a rational effort of the community in tackling crime, can be carried out operationally either through reasoning facilities or non-public facilities. Penal and non-penal means are a pair that cannot be separated from each other, it can even be said that the two complement each other in an effort to overcome corruption (Muladi, 1995: vii).
The problem of corruption is full of various complexities of problems, so it should be taken with an integral approach. Not only the law reform, but should be accompanied by "social, economic, political, cultural, moral, and administrative reform" (Arief, 2010: 70). The handling of criminal acts of corruption cannot only rely on penal facilities because the criminal law in its operation has weaknesses / limitations. The weaknesses / limitations of the ability of criminal law in crime prevention have been expressed by many scholars, including: 1.
Muladi stated that the enforcement of criminal law within the framework of the criminal justice system cannot be expected as the only means of effective crime prevention, given that there is a high probability that the perpetrators of crimes are outside the framework of the criminal justice process (Arief, 2010: 18 ) 2.
Donald R. Taft and Ralph W. England, as quoted by Barda Nawawi Arief, stated that the effectiveness of criminal law cannot be measured accurately. Law is only one means of social control. Habits, religious beliefs, support, and group abuse, the emphasis of interest groups and the influence of public opinion are more efficient means of regulating human behaviour than legal sanctions (Arief 1998: 42).

3.
Gustav Radbruch, as quoted by Marzuki (2006: 154-155), warns that in the legislative product (gesetz) sometimes there is Gezetzliches Unrecht, namely injustice in the law, while not a few are found iibergesetzliches recht (justice outside the law legislation) in people's lives.

4.
Anwarul Yaqin, as quoted by Ali (1998: 60), suggests that "... law plays only one regulates and influences human behaviour. Moral and social rules, though less explicit and less formal in their nature and content, also play a significant role in society's efforts to control behaviour." Given the weaknesses and limitations of the criminal law's ability to deal with the above crimes, the policy for dealing with corruption is not only through reasoning facilities, but also using non-penal facilities. Hoefnagels argues that criminal policies in general can be grouped into two, namely: 1. criminal policy using the means of criminal law (reasoning policy); and 2. criminal policy by using facilities outside of criminal law (non-penal policy). The two facilities (reason and non-penal) mentioned above are pairs which cannot be separated from each other, it can even be said that the two complement each other in an effort to deal with crime in the community (Muladi, 1995). Based on the description of the above background, it is necessary to know more about the penal and non-criminal policies in the handling of criminal acts of corruption.

RESEARCH METHOD
This study uses a normative juridical approach, namely by reviewing / analysing secondary data in the form of legal materials, especially primary legal material and secondary legal material by understanding the law as a set of rules or positive norms in the legal system governing human life (Soekanto and Mamuji, 2011: 114

The Cause Factors of Corruption
The causes of corruption proposed by experts include the following: 1. Andi Hamzah (1991) suggests that the causes of corruption are: a. Lack of salaries of Civil Servants compared to needs that are increasingly increasing. b. Indonesian cultural or cultural background which is the source or cause of widespread corruption. c. Poor management and less effective and efficient controls that will provide opportunities for corruption. d. Modernization breeds corruption. 2. Syed Hussein Alatas, as quoted by Evi Hartanti (2005), states that the causes of corruption are: a. The absence or weakness of leadership in key positions capable of providing inspiration and influencing behavior that tames corruption. b. Weaknesses of religious and ethical teachings. c. Colonialism, where a foreign government does not inspire loyalty and compliance is needed to stem corruption. d. Lack of education. e. Poverty. f. The absence of strict punishment. g. Scarcity of fertile environment for anti-corruption behavior. h. Government structure. i. Radical change, where when a value system undergoes radical change, corruption emerges as a transitional disease j. The state of society where corruption in a bureaucracy can reflect the overall state of society. 3. Sudarto (1981) states that: A Clean Government, where there are no or at least not many acts of corruption, cannot be realized only by legal regulations, even though it is a criminal law with sharp sanctions. The scope of criminal law is limited. Efforts to eradicate indirectly can be done with actions in the field of politics, economy, and so on. 4. Systematic corruption cause: a. High economic costs by irregularities incentives; b. Political costs by booting or exile to a public institution; and c. Social welfare costs by division and the improperly division of powers.
In the characteristic of multidimensional criminal acts of corruption, the causes or conditions that are criminogenic for the emergence of corruption are also very broad, both in the fields of moral, social, economic, political, cultural and socio-economic inequalities and bureaucratic weaknesses. Briefly the causes of corruption include 5 (five) aspects, namely: a. Individual Actors Aspect 1) Nature of Greed and Greed In this case what causes a person to commit a criminal act of corruption is the greedy, greedy and greedy nature that is in the human self. Regardless of the wealth and income that someone has obtained, if there is an opportunity to commit corruption it will still be carried out. Someone whose morale is weak, tends to be easier to be pushed to commit a criminal act of corruption. The temptation is both from within a person and to the temptations of others, namely, leaders, classmates and subordinates. In addition, the understanding of the religious teachings he adheres to is not in accordance with the reality faced by the perpetrators of corruption, they understand the teachings of the religion he adheres to prohibiting corruption, but it is applied only to ceremonial purposes.

3) Insufficient Income
In this case it is a compulsion to seek additional income. The effort to find additional income is already a form of corruption, for example, embezzling office equipment, fictitious official travel, and holding unnecessary activities at unreasonable costs. And it will be even worse if the person gets the opportunity to commit corruption against the larger resources owned by the agency or institution.

4) Consumptive Lifestyle
Consumptive lifestyles, especially in big cities make low income increasingly insufficient so that this will encourage someone to do everything including doing corruption so that their needs can be fulfilled. b. Organizational / institutional aspects 1) Lack of Exemplary Leadership A good leader will be a role model for each of the people, if the leader exemplifies the lifestyle of simplicity, discipline, honesty and fairness to its members, then the members will tend to have the same lifestyle. But a good example from the leadership also does not guarantee that corruption will not arise within an institution because there are many other causes.

2) Absence of Correct Institution / Organization Culture
Organizational culture has an influence on members of these institutions, especially in habits, perspectives and attitudes in dealing with a situation. For example, in a part of the institution there is often a culture of "envelope" pelican money, gifts, buying and selling findings, and others that lead to consequences that are not good for the institution. Therefore, it is necessary to establish and maintain the right culture by establishing an official culture / organization and ethical code or rules of conduct that are officially applied to the organization.

3) Insufficient Accountability System in Government Agencies
Inadequate accountability will result in a lack of attention to the efficiency of the use of resources owned. Even the level of loss of the resources they have is also less attention. As a result, the level of attention or level of interest from the management in the government ranks is slowly but surely giving the impetus to become a leak of resources owned by the government institution. This situation raises an organizational situation that is conducive to corruption.

4) Weaknesses of Management Control Systems
The weak management control system makes many employees corrupt. In the APBN environment, the management control system is known as waskat (Attached supervision). Collusion between several officials involved in the implementation of activities causes the collapse of existing management controls. So that employees who know the management control system is weak will give opportunities and opportunities for him to commit corruption. 5) Management Tends to Close Corruption in their Institutions / Organizations.
In general, the management of institutions / organizations where corruption occurs is reluctant to help reveal the corruption even though the corruption does not involve him. As a result, the management ranks tend to cover up existing corruption, and try to resolve it in their own ways which then leads to other corrupt practices.

c. Community aspects
The values that apply in society are very conducive to corruption. For example, many members of the community who in their daily lives actually respect someone because it is based on the wealth of the person concerned. So this is what makes someone so ambitious to enrich themselves even with corruption. In addition, the public is not aware that the most disadvantaged from the occurrence of corruption practices is the community itself. Because if the State experiences a loss, the community will also feel the impact of this. Therefore the community must also play an active role in helping eradicate and prevent acts of corruption.

d. Law enforcement and law enforcement aspects
1) Weak law enforcement The weakness of law enforcers against perpetrators of corruption includes several aspects including: a. The absence of legal action against the perpetrator is because the perpetrator is the superior or subordinate of the perpetrator, the law enforcer has received part of the corruption results of the perpetrator, or the perpetrator is a colleague from the head of the law enforcement agency. b. If there are actions taken by law enforcement officers, the handling will be repaid and the sanctions will be delayed. c. There is no punishment at all, because my guardian gets a push (push) from a certain rank or corruption patterned with certain interests.

2) The quality of legislation is inadequate
To be able to implement a good statutory regulation, in the legislation it is necessary to clearly define the background and purpose of the enactment of the regulation. With a clear formula, the elaboration of the rules in the body of legislation will be easier, besides that evaluation to assess the level of effectiveness is clearly easier.
3) The application of sanctions that are mild and inconsistent and indiscriminate Someone will easily commit a criminal act of corruption because the sanctions given are too light, so that the deterrent effect caused by the essence of sanctions does not even exist in accordance with the impact of corruption, besides the application of sanctions is also inconsistent and indifferent because of the influence of position or the rank of the person who committed the corruption, so this will reduce the effectiveness of the regulation.

e. Political Aspects
The occurrence of corruption in this nation can be caused by political factors or relating to power. The formulation of fraud in the use of state money was polarized by Lord Acton who lived in 1834-1902 in England. He stated that "Power tends to corrupt, but absolute power corrupts absolutely", which means that powers tends to be corrupt, but excessive power results in excessive corruption (Surachmin and Suhandi, 2011: 108).
In general, the causes of corruption are agreements and positions / powers. In addition to the weakness of moral integrity, it also contributes to the cause of corruption, because only people who do not have morals who want the destruction of a nation besides corruption actors are generally carried out by a group of people who are highly educated, so the eradication often gets in the way.

The Prevention of Corruption with Penal and Non-Penal Policy
The definition of criminal liability is put forward by Simons as a psychological state, so the application of a criminal provision from a general and personal point of view is deemed appropriate. Still according to Simons, the basis for the existence of responsibility in criminal law is certain psychological conditions in people who commit criminal acts and there is a relationship between these conditions and actions that are carried out in such a way that the person can be denounced for doing the act (Hiariej, 2016: 156). So it can be concluded that the core responsibility in criminal law as stated by Simons that: first, a person's psychological state or soul; and second, the relationship between psychological states and actions performed.
In the Dutch vocabulary, accountability in the context of a psychic state is translated into toerekenings-vatbaarheid or can be held responsible or responsible, whereas in the context of the relationship between the psychological state and the action taken, it is translated to toerekenbaarheid or accountability.
The basis of the existence of a criminal act is the principle of legality while the basis for which it can be initiated is the principle of error. Therefore, criminal liability is the responsibility of the person for the crime he committed. Criminal liability is essentially a mechanism that is built by criminal law to react to violations of 'agreement to reject' a particular act (Ali, 2013: 94).
Regarding criminal responsibility, Sudarto as quoted by Ali (2013: 94) expressed his opinion that it is not enough if someone who has committed an act that is against the law or is against the law. So, even if the act fulfils the formulation of the offense in the law or is not justified, it does not meet the requirements for criminal imposition. For criminal prosecution there still needs to be a requirement for criminal prosecution, that is, the person who committed the act has an error or guilt. The person must be accountable for his actions or if viewed from the point of his actions, his actions can only be accounted for by the person.
In more detail, Sudarto stated that in order for people to have aspects of criminal liability, in the sense of the involvement of the maker, there are several conditions that must be met, namely: 1. The existence of a criminal offense committed by the maker; 2. There is an element of error in the form of intentions or negligence; 3. There are makers who are able to be responsible; 4. There are forgiving reasons.

Responsibility in Criminal Act: A Theory and System
Whereas accordingly, efforts to combat corruption can be dealt with by both policies, including:

Penal Method
The penal approach is a method used by utilizing criminal facilities or criminal sanctions, this approach is the oldest approach in crime. It is said to be the oldest because this approach according to Gene Kassebaum is as old as human civilization itself, so he says that the means of reasoning are "older philosophy of crime control" (Muladi and Arief, 1984: 149).
In general, efforts to combat crime can be carried out through means of reason and non-reasoning. Efforts to overcome criminal law through means of reasoning in regulating society through legislation are essentially a form of policy.
Crime prevention efforts with criminal law (means of reason) focus more on the nature of "repressive" (suppression / eradication / crackdown), after a crime or criminal act occurs. In addition, in essence, the reasoning facilities are part of law enforcement efforts, therefore criminal law policies are part of law enforcement policies. In other words, overcoming corruption can be done by submitting cases of criminal acts of corruption that occur to law enforcers in this case the police, prosecutors and KPK to process in accordance with applicable legal provisions. Where penalties or criminal sanctions imposed on the perpetrators are expected to provide a deterrent effect to the perpetrators in accordance with the purpose of punishment.
Although the handling of criminal facilities "penal" in a criminal policy is not a strategic position in the handling of criminal acts of corruption, but it is not a policy step that can be simplified by taking an extreme stance to abolish the "penal" criminal law. Because the problem does not lie in its existence but on the issue of its use policy.
The After 28 (twenty eight) years, Law Number 3 of 1971 is no longer in line with the development and legal requirements regarding Corruption Crime, because with the development of the time it has also led to the development of corruption. Crimes of corruption, collusion and nepotism have spread and many have been carried out by the authorities at that time, so that the MPR as the highest institution at that time established MPR TAP Number XI / MPR / 1998 concerning clean and free corruption, collusion and Nepotism. Which in it also regulates the efforts to eradicate Corruption Crimes which are carried out firmly, by implementing the Corruption Crime Act consistently (Djaja, 2008: 8-10).
The enthusiasm and efforts to eradicate corruption in the reform era were marked by the issuance of various legislative products. Starting with the exit: a. Tap

Non-Penal Method
A rational effort to control or handle criminal acts of corruption is not only by using the means of punishment (criminal law), but also by using non-criminal means.
Non-penal means have a preventive effect on crime. Preventive efforts in question are efforts made before the occurrence of criminal acts of corruption by addressing the drivers of corruption which according to Yunara (2005: 6) can be implemented in several ways: 1) Moralistic Ways Moralistic methods can be carried out in general through human mental and moral formation, sermons, lectures and counselling in the fields of religion, ethics and law.

2) Abolitionic Ways
This method arises from the assumption that corruption is a crime that must be eradicated by first digging up the causes and then being left to the businesses that eliminate these causes.
Then examine the problems that are being faced by the community as well as the individual incentives that lead to acts of corruption, increase awareness of the law of the community and punish those who have committed corruption based on applicable law. Thus viewed from a criminal political point of view, the entire non-criminal preventive activities have a very strategic position in preventing corruption. Therefore a criminal policy must be able to integrate all preventive activities in a regular system of State activities. Non-penal crime prevention efforts can be in the form of: 1) Prevention without crime (Prevention without punishment) 2) Influence the public's view of crime and punishment through mass media (influencing views of society on crime and punishment mass media). Given that efforts to combat crime through non-reasoning are more of a preventive measure, the main means is to deal with conducive factors that cause corruption, where the factor is core problems or direct or indirect social conditions which can foster crime.
Seeing the act of corruption that is being entrenched in Indonesia at this time, it really needs firmness and clarity regarding operational practices. Practically operational is meant as a preventive and repressive action must be in it. Because these two steps and actions will result in the implementation of a State that is free and free from corruption.

CONCLUSION
It can be emphasized that the factors underlying the occurrence of Corruption Crime include 5 (five) aspects, namely: Individual Aspects of Perpetrators; Organizational / institutional aspects; Community aspects; Law enforcement and law enforcement aspects; and Political Aspects. Efforts to tackle corruption through criminal law policies (means of reason) focus more on the nature of "repressive" (suppression / eradication), after a crime or criminal act occurs. Criminal law policy is part of the law enforcement policy. In other words, overcoming corruption can be done by submitting cases of criminal acts of corruption that occur to law enforcers in this case the police, prosecutors and KPK to process in accordance with applicable legal provisions. Efforts to combat corruption through policies of non-criminal means have a preventive effect on crime. Preventive measures referred to are efforts carried out before corruption occurs by addressing the drivers of corruption that can be carried out in a number of moralistic and abolitionic ways.