Monday, March 06, 2017
Advice on the Prevention of Corporate Crimes for Corporations
Marcell Sihombing, CR-23
As we approached the end of 2016, the Supreme Court issued Regulation No. 13 of 2016 on Procedures for the Settlement of Criminal Acts Committed by Corporations (“Regulation 13/2016”). Since then, a number of national law-enforcement institutions, including the Supreme Court (MA), the Corruption Eradication Commission (KPK), the office of the State Attorney and the National Police have attempted to disseminate information relating to this regulation. This dissemination process has focused specifically upon the management personnel employed by companies and corporations in a bid to encourage them to stay clear of engaging in criminal acts on behalf of their corporate employers.
One of these attempts at socializing the dangers of corporate corruption was realized at a recent public discussion event titled “Aspek Hukum Penanganan Tindak Pidana Korporasi Pasca Berlakunya PERMA No. 13 Tahun 2016 tentang Tata Cara Penanganan Perkara Tindak Pidana oleh Korporasi” (Legal Aspects Pertaining to the Handling of Corporate Crimes Following the Issuance of Supreme Court Regulation No. 13 of 2016 on Procedures for the Settlement of Criminal Acts Committed by Corporations). This event was organized by Hukumonline.com in cooperation with Assegaf Hamzah and Partners Law Firm (AHP) and took place at Jakarta’s Le Meridien Hotel on Tuesday, 1 March 2017.
The event itself was attended by several keynote speakers, including AHP Partner, Chandra Hamzah; Undang Mugopal, the Head of the Sub-directorate of Human Rights at the office of the State Attorney; and Setiadi, the Head of the KPK’s Legal Bureau. During their various addresses, these three speakers offered advice, tips and strategies which could be implemented by corporations in order to help them to avoid committing corporate crimes.
Firstly, Mr. Hamzah asserted the importance of corporations compiling lists of laws which address corporate crimes within their various provisions. It is only through the compiling of such lists, Mr. Hamzah asserted, that corporations can identify whether their business activities conflict with any laws.
By way of example, Mr. Hamzah explained that corporations working in the mining sector should be analyzing both the Environmental Law and the Minerals and Coal Mining Law in order to ascertain any potential legal problems that they could run afoul of. Corporations should then implement a business-risk auditing process in order to pinpoint any potential sources of crime.
“Another important thing to note is that corporations should comply with various principles relating to indemnity, the safekeeping of documents which relate to the origins and values of any assets, the expiration dates for corporate crimes and due diligence,” Mr. Hamzah affirmed.
Mr. Mugopal continued the discussion by highlighting two mechanisms which are set out under the Corruption Eradication Law in order to deal with corporation crimes, specifically: preventive measures and enforcement measures. All parties can implement preventive measures, however enforcement measures can only be implemented by law-enforcement institutions.
Mr. Mugopal also pointed out that the State Attorney may implement preventive measures through the taking on of an advisory role, assisting corporations in a way that ensures that their various business activities do not constitute any acts of corporate crime.
“This doesn’t mean that we [the State Attorney] are backing up or defending [certain corporations]. Rather, we are simply attempting to prevent them from engaging in any corporate crimes. Should there be any violation, then [said corporation] will immediately become subject to due process,” Mr. Mugopal asserted.
Mr. Mugopal also emphasized the importance of a thorough understanding of the criteria and qualifications relating to the various corporate crimes which are subject to criminal sanctions. In general, corporate crimes which are subject to criminal sanctions include any activities which are instigated by a corporation’s management personnel, activities which are undertaken in order to satisfy corporate interests in relation to the perpetrators’ employment and/or other affiliations, or any form of supports or facilities, including any actions which are undertaken by any third parties hired by a corporation in a bid to boost corporate profits.
Mr. Setiadi expressed a similar opinion to that articulated by Mr. Mugopal and further revealed the so-called “key” to corporations avoiding corporate crimes, namely ensuring that none of their employees or policy makers are engaging in any acts of bribery in order to satisfy the interests of the corporation.
By way of example, Mr. Setiadi pointed to the UK’s various regulatory frameworks as regards corporate compliance guidelines for the purpose of preventing corruption, and as stipulated under Section 7 of the UK Bribery Act 2010. This regulation mandates that the Ministry of Justice should formulate a set of simple guidelines which must be implemented by corporations in the form of technical guidelines. Such technical guidelines should address six primary principles, specifically: proportionate procedures, top-level commitment, risk assessment, due diligence, communication, and monitoring and review.