Corporate Liability For Corruption In Indonesia.
Legal News & Analysis - Asia Pacific - Indonesia - Regulatory & Compliance
7 September, 2018
Indonesian Law No. 31 of 1999 regarding Eradication of Criminal Acts of Corruption, as amended by Law No. 20 of 2011 (together, the “Anti-Corruption Law”) may hold corporations responsible for criminal acts of corruption.
Pursuant to Article 20 of the Anti-Corruption Law, a corporation found guilty of an act of corruption may be required to pay a maximum fine equal to the maximum fine for an individual, plus an additional one-third on top of such fine. Individual members of management may be held liable for criminal acts of corruption committed by the corporation.
In a similar vein, Supreme Court Regulation No. 13 of 2016 regarding Procedures to Handle Criminal Acts Committed by Corporations (“SC Reg. 13/2016”) stipulates that a corporation shall be represented by member(s) of its management during any investigation and subsequent court proceedings for corporate crimes. (A corporation that is undergoing a dissolution process shall be represented by the liquidator.)
SC Reg. 13/2016 also suggests that in deciding criminal penalties for a corporation, the court may assess whether the corporation:
- profited or benefitted from such criminal act, or whether such act was committed for the corporation’s interest;
- allowed such criminal act to happen; and
- failed to take necessary measures to prevent and/or minimise the impact of such criminal act, and also to ensure the compliance of the corporation with the prevailing laws and regulations to avoid such criminal act from being committed.
We would note that the above provision may be interpreted to mean that the court would likely look into the measures taken by a corporation in preventing the alleged act of corruption. However, it is not clear whether the provision provides a defense or excuse for companies that claim to have taken preventive measures to prevent an act of corruption from occurring. The regulation does not address the forms of valid defence.
At an international conference sponsored by the Corruption Eradication Commission (Komisi Pemberantasan Korupsi or “KPK”), there was a session on Anti-Bribery Management System SNI ISO 37001:2016 (“ISO 37001”). The panel at that session discussed the purpose of ISO 37001 as a management system for companies to combat corruption. To obtain an ISO 37001 certificate, companies are required to go through a vetting process. There was a discussion about the legal significance of the ISO 37001 in the context of the anti-corruption regime in Indonesia. Unfortunately, given that SC Reg. 13/2016 and ISO 37001 are relatively new, it remains to be seen how these issues will be resolved in the future.