[co-authors: Harris Syahni Toengkagie, Charissa Naomi Witantra]*
1. Is your country a member of the OECD Anti-Bribery Convention?
2. Is your country a member of any other bilateral or multilateral conventions on anti-corruption?
Yes. Amongst others, Indonesia is one of the signatories of the United Nations Convention against Corruption.
3. Are there local anti-corruption laws in your country focusing on corporations, not individuals? If yes, what sanctions can be imposed?
Yes. Indonesia adopted Law No. 31 of 1999 on Corruption Eradication (as amended) (“Corruption Eradication Law”), which focuses on the acts of corruption given to and from state officials or state administrators.
With regard to corruption in the private sector, Law No. 11 of 1980 on the Criminal Act of Bribery (“Law 11/1980”) is the only legislative instrument that appears to be relevant to the private bribery of owners, employees, or directors of private, non-government-owned companies. The content of Law 11/1980 is general, with Article 1 specifically defining the Criminal Act of Bribery as an act of bribery that is not regulated under any existing laws or regulations. Although Law 11/1980 is still in force and has not been revoked by Law No. 31/1999 (as amended), there is some uncertainty as to whether Law 11/1980 has ever been used by Indonesia’s prosecuting authorities.
The below discussion will mainly focus on the specialized provisions under the Corruption Eradication Law.
The Corruption Eradication Law recognizes both individuals and corporations (defined as a group of people or organized wealth, may be in the form of a legal entity) as its subjects.
Under the Corruption Eradication Law, imposable sanctions vary, according to the type of crime committed by the corporation in question. In brief, the Corruption Eradication Law may impose sanctions in the form of imprisonment for up to 20 years and fine for up to IDR 1 billion. In severe cases, the death penalty may also be imposed. In addition, the Corruption Eradication Law specifies supplemental sanctions may be imposed in the form of goods confiscation, requirement to compensate, closure of part of all or the corporation’s business, and revocation or elimination of part or all of the corporation’s certain rights.
4. Can companies be held liable for acts of corruption under civil or administrative law?
In general, no. An act of corruption is classified as a criminal act under Indonesian law. However, there is a possibility that a party may file a civil legal action against the other party who is proven to conduct corruption (e.g., on the basis of tort).
5. Is corruption of individuals punishable?
Yes, please refer to the answer to question 3.
6. Are facilitation payments allowed?
When facilitation payments are made to expedite any administrative processes, they are not allowed and can be considered a violation of the Corruption Eradication Law.
7. Is there a legal regulation/maximum limit for accepting or giving gifts, invitations, etc.?
The Corruption Eradication Law recognizes receiving or giving gifts and invitations as acts of gratification. Furthermore, giving discounts, commissions, travel amenities, as well as other facilities to onshore or overseas recipients (via electronical means or non-electronical means) are also recognized as gratification.
The Corruption Eradication Law focuses on the acts of gratification toward state officials or state administrators. This law does not mention the minimum or maximum limit that state officials or state administrators are allowed to receive, and therefore, strictly speaking, any type of gifts received by state officials or state administrators in any amount are required to be reported by the respective recipients to the Corruption Eradication Commission (KPK) in a timely manner as determined by the law.
The KPK Regulation No. 2 of 2019 on Gratification Reporting provides detailed exemptions on the types of income that Civil Servants (pegawai negeri) or State Officials (penyelenggara negara) may receive, which do not require the Civil Servants or the State Officials to report to the KPK. The said income include, among others, gifts from the respective Civil Servants or State Officials’ families (as long as there is no conflict of interest), gifts obtained from any competition that the respective Civil Servants or State Officials entered into themselves, monetary or non-monetary appreciations given by the government based on their work performance, gifts related to marriage, birth, baptism, circumcision, tooth-filing, or other traditional/religious ceremonies with a value limit of IDR 1,000,000.00 per giver. However, this provision should be considered carefully because if the intention is to provide these gifts is to influence the state officials, it may be classified as an act of corruption/bribery.
8. Are bribes to foreign government officials prohibited?
The principal Indonesian law prohibiting the bribery of foreign public officials is Law No. 7 of 2006, which ratified the United Nations Convention against Corruption (the “UN Convention”). Indonesia signed the UN Convention on December 18, 2003, and ratified it on September 19, 2006.
The Indonesian government has stated that disputes related to the interpretation and application of the UN Convention that cannot be settled through the channel provided for therein may only be referred to the International Court of Justice with the consent of the parties to the dispute.
Notwithstanding the adoption of the UN Convention, there is currently no implemented legislation for the UN Convention with regard to foreign bribery laws.
9. Does your legislation have any extraterritorial reach?
Yes. Under Article 16 of the Corruption Eradication Law, any person outside the territory of Indonesia may also be indicted if they are proven to provide assistance, opportunities, means, or information to enable the commission of criminal acts of corruption.
10. Is it possible to confiscate assets from the company?
Yes, please refer to the answer to question 3.
11. Does your legislation rely on deferred prosecution or non-prosecution agreements or any other type of non-trial resolution for corruption?
12. Can a company be liable for the acts of its intermediaries or third parties?
Yes, depending on the case.
13. Can a parent company be liable for the acts of its subsidiaries?
Yes, depending on the case.
14. Are there any affirmative defenses or exceptions for those accused of corruption acts?
No. This should be viewed on a case-by-case basis.
15. Does your jurisdiction require domestic entities to implement anti-corruption internal programs?
Strictly speaking, no. However, it is urged. Additionally, Supreme Court Regulation No. 13 of 2016 on Procedures for Handling Criminal Actions by Corporations specifies that if a corporation does not take the necessary steps to prevent and ensure compliance with applicable legal provisions to avoid the occurrence of criminal acts, the corporation in question may also be held criminally responsible in accordance with the applicable provisions.
16. Is having a compliance program a defense or mitigating factor, while reviewing sanctions?
Both, according to the compliance program applied by each corporation.
17. Could the cooperation with the authorities or an internal investigation be a defense or mitigating factor?
Both, according to the cooperation applied by each corporation.
18. Is there any publicly available guideline issued by the authorities in charge of enforcing anti-corruption laws? For example, manuals on compliance programs, leniency agreements, etc. If so, please provide the link.
Yes. However, the Corruption Eradication Law has been amended several times, and the government’s official websites do not provide a consolidated version of the Corruption Eradication Law. Nevertheless, Law No. 31 of 1999 on Corruption Eradication (in Indonesian) is open for public access via the following link: https://jdih.setkab.go.id/PUUdoc/7177/UU311999.pdf
*Makarim & Taira S.