Dualism in the Regulation of Passive Bribery in Indonesia: How Should Law Enforcement Respond?

Legal dualism is exasperating when addressing issues of certainty and fairness, finally raising the question of which law ought to be applied. Legal dualism is also evident in the regulation of passive bribery in Indonesia, particularly within the same legal framework, namely the Anti-Corruption Law, in Articles 5 and 12. The objective of this work is to present a logical legal argument concerning the appropriate response of law enforcement to the phenomenon of legal dualism. This study employs normative legal research through a conceptual and comparative legal framework to analyse the regulation of passive bribery in Malaysia and the Netherlands. In both nations, passive bribery is explicitly regulated, and there exists no legal duality. In the Netherlands, passive bribery is governed by Articles 362-364 of the Dutch Criminal Code. In contrast, in Malaysia, it is addressed under Article 16 of the Akta Suruhanjaya Pencegahan Rasuah No. 694 of 2009. The study's findings indicate that the Anti-Corruption Law governing passive bribery creates uncertainty about its enforcement, leading to unilateral interpretations by law enforcement officials and potentially facilitating abuse of power in its application. In light of this legal dualism, the approach of law enforcement officials in applying the norms is crucial; they should implement the most advantageous norm, specifically Article 5, for offenders. Consequently, lawmakers must exercise caution and diligence in formulating regulations to guarantee legal certainty and justice, thereby avoiding the emergence of legal dualism.