Cogent Social Sciences

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Trading in influence (Indonesia): A critical study

Erdianto Effendi, Zico Junius Fernando, Ariesta Wibisono Anditya & M. Jeffri
Arlinandes Chandra

To cite this article: Erdianto Effendi, Zico Junius Fernando, Ariesta Wibisono Anditya & M.
Jeffri Arlinandes Chandra (2023) Trading in influence (Indonesia): A critical study, Cogent Social
Sciences, 9:1, 2231621, DOI: 10.1080/23311886.2023.2231621

To link to this article: https://doi.org/10.1080/23311886.2023.2231621

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Effendi et al., Cogent Social Sciences (2023), 9: 2231621
https://doi.org/10.1080/23311886.2023.2231621
Received: 08 May 2023
Accepted: 27 June 2023
*Corresponding author: Erdianto
Effendi, Fakultas Hukum, Universitas
Riau, Riau, Indonesia
E-mail: erdianto.effendi@lecturer.
unri.ac.id
Reviewing editor:
Cristina Elena Popa Tache, Law,
Andrei Şaguna University:
Universitatea Andrei Saguna,
Romania
Additional information is available at
the end of the article
Erdianto Effendi
LAW, CRIMINOLOGY & CRIMINAL JUSTICE | RESEARCH ARTICLE
Trading in influence (Indonesia): A critical study
Erdianto Effendi1*, Zico Junius Fernando2, Ariesta Wibisono Anditya3 and
M. Jeffri Arlinandes Chandra4
Abstract: Trading in influence was one of the crimes regulated in UNCAC in 2003.
However, in Indonesia, it is not included. Trading in influence is not included in the
legislation, this is a gap in itself, and a solution must be found so that the regulation
on trading in influence can be implemented. Immediately regulate and close the
gaps individuals can exploit in committing criminal acts of corruption in Indonesia.
This study uses a normative juridical approach (library research). This study shows
that it is necessary to regulate trading in influence in positive law in the future (ius
constituendum) because cases related to trading in influence are prevalent in
Indonesia. In addition, the rules that will be made relating to trading in influence
must not conflict and must be by the constitution of the 1945 Constitution of the
Republic of Indonesia and Pancasila. All the materials that have been collected are
ABOUT THE AUTHORS
Erdianto Effendi Was born in Pelahuban Gadang on November 10, 1973. He completed his under­
graduate programme at the Faculty of Law, Jambi University, in 1997, continued in the master of law
programme at the Faculty of Law, Sriwijaya University, and graduated in 2001. In 2014, he graduated
from the doctor of law programme at the Faculty of Law, Padjadjaran University. He is a lecturer at the
Faculty of Law at Riau University. He teaches criminal law, introduction to law, legal philosophy, legal
sociology, and legal theory. His research focuses on criminal law, criminology, and anti-corruption; he is
also a very experienced expert witness.
Zico Junius Fernando Born in Curup on June 7, 1990, he is the best and fastest graduate of the Bachelor
of Laws Programme in 2012 and the Master of Laws Postgraduate Programme at the Faculty of Law,
Bengkulu University, in 2013. Civil servant lecturer at the Faculty of Law, Bengkulu University, specialis­
ing in criminal law. He has been pursuing his doctoral studies at the Faculty of Law at Diponegoro
University since 2021. He has experience in the legal field, namely working as an advocate or legal
consultant in several offices and law firms and handling various cases.
Ariesta Wibisono Anditya Highly interested in law research especially in the scope of Criminal Law,
International Criminal Law, Criminology, Victimology, Cybercrime, and Human Rights, also eager to
conduct research related to the aforementioned scopes. Able to study, read, or analyze a wide range of
literature. Published seven articles including undergraduate and post-graduate research. Currently
working on research related to criminology, legal anthropology, and international criminal law.
Assistant Professor & Head Of Quality Assurance at Faculty of Economics and Social, Universitas
Jenderal Achmad Yani Yogyakarta, Law Department Lecturer.
M Jeffri Arlinandes Chandra Who is often called Jeffri is a native of Bengkulu (Rejang Tribe). Graduated
Bachelor (S1) at the Law Study Program (Concentration of Constitutional Law) Faculty of Law, Bengkulu
University (UNIB), Bengkulu in 2012 then completed his Master’s Study (S2) in the Master of Law
Program at the same institution in 2015. Currently pursuing Doctoral Education in Law Science at
Sriwijaya University, Palembang. Starting his career as a Banking Marketing then finally anchored into
academia and started his career and became a permanent lecturer at the Faculty of Law, Dehasen
University Bengkulu (2015-2018) and since 2019 has become a Permanent Lecturer (PNS) of the Law
Study Program at the Faculty of Law, Social and Political Sciences (FHISIP) Open University in charge of
the UT Bengkulu Distance Learning Program Unit (UPBJJ).
© 2023 The Author(s). Published by Informa UK Limited, trading as Taylor & Francis Group.
This is an Open Access article distributed under the terms of the Creative Commons Attribution
License (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted use, distribu­
tion, and reproduction in any medium, provided the original work is properly cited. The terms on
which this article has been published allow the posting of the Accepted Manuscript in
a repository by the author(s) or with their consent.
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analyzed and processed qualitatively to classify legal materials, then used content
analysis. This study shows that it is necessary to regulate trading in influence in
positive Law in the future (ius constituendum) because cases related to trading in
influence are prevalent in Indonesia. In addition, the rules that will be made relating
to trading in influence must not conflict and must be by the constitution of the 1945
Constitution of the Republic of Indonesia and Pancasila.

Subjects: Public Law; Criminal Law & Practice; Criminology and Law

Keywords: trading in influence; corruption; law reform; Indonesia

1. Introduction
In 2022, Indonesia’s Corruption Perception Index (CPI) decreased, reflecting an increase in corrup­
tion in the country. Based on a report released by Transparency International Indonesia (TII),
Indonesia’s CPI score dropped to 34, ranking 110 out of 180 countries (Ni’am, 2023b). Indonesia’s
position deteriorated generally compared to previous years and showed a worse performance than
some other Southeast Asian countries. Singapore was rated as the least corrupt country in the
region with a score of 83, followed by Malaysia (47), Timor Leste (42), and Thailand (36). Indonesia
is only ahead of the Philippines with a CPI score of (34) points, Laos with (31) points, Cambodia (24)
points, and Myanmar (23) points (Ni’am, 2023a). The decline in Indonesia’s CPI score underscores
the importance of more effective corruption eradication efforts to improve transparency and
accountability in various government sectors. To achieve this goal, measures should include
strengthening law enforcement agencies, increasing transparency in the management of state
finances and budgets, and developing reporting systems that make it easier for the public to report
suspected corruption offences. With effective strategy implementation and good coordination
between various government agencies, Indonesia can show improvement in its CPI score, create
a cleaner government, and boost public confidence and investment in the country’s economy
(Fernando et al., 2022).

Based on the data above, it is also related to the modus operandi of crimes or acts of corruption
that are constantly changing rapidly and vigorously. The pace of legislative change is always a few
steps behind the crime itself. As a result, many acts are evil but cannot be prosecuted through the
legal process because there are no adequate regulations to ensnare the perpetrators. One of them
is trading in influence. Trading in influence occurs due to violations of ethics and morality
committed by state or government officials. The spread of Operation Capture Hands (OTT) and
other forms of corruption essentially stems from the abuse of official authority closely related to
the desire to trade influence (Masaharu, 2020).

Countries in the world (including Indonesia) made the United Nations Convention Against
Corruption in 2003 (UNCAC 2003) as a reference in making laws and regulations. The UNCAC High-
Level Convention on 11–19 December 2003 in Merinda-Mexico describes several acts categorized
as criminal acts of corruption (TIPIKOR), one of which is trading in influence. The state of Indonesia
is one of the countries that have ratified UNCAC 2003. The existence sees the juridical consequence
of the ratification of UNCAC 2003 by Indonesia of Law Number 7 of 2006 concerning Ratification of
UNCAC is the necessity to adopt norms that are considered necessary into positive Law (ius
constitutum) in Indonesia.

Although the State of Indonesia has ratified the 2003 United Nations Convention Against
Corruption (UNCAC 2003), not all forms of corruption (TIPIKOR) under UNCAC are criminalized in
Indonesia’s Corruption Eradication Law (TIPIKOR). This includes unregulated influence trading. The
preparation of Law Number 31 of 1999 in conjunction with Law Number 20 of 2001 concerning the
Eradication of Criminal Acts of Corruption is an effective instrument in eradicating corruption. This
Law should be a response to the development of corruption in Indonesia (Rumaday, 2021).

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The revision of Law No. 31/1999 in conjunction with Law No. 20/2001 on the Eradication of
Corruption is important to strengthen the legal framework to fight corruption in Indonesia. One
aspect that needs to be considered is criminalising “trading in influence”, which is the practice of
using one’s position and influence to gain personal benefits or for others through unethical actions.

Criminalising trading in influence will close legal loopholes that are often used by corrupt actors
to avoid punishment. This will ensure that those involved in the practice are prosecuted and
punished in accordance with the law. By criminalising trading in influence, Indonesia will enhance
its anti-corruption efforts, promote transparency and accountability, and reduce corrupt practices
at all levels of government. In addition to criminalising trading in influence, the revision of the law
should also consider increasing legal sanctions, protecting whistleblowers, and strengthening
cooperation between law enforcement agencies. These revisions will help to create an environ­
ment that is not conducive to corruption and support corruption eradication efforts in Indonesia.

Reforms in laws and regulations must always consider the noble values contained in Pancasila
and the 1945 Constitution of the Republic of Indonesia as the basis of the state. In the context of
eradicating corruption, the revision of laws must prioritise principles that are in line with Pancasila
and the 1945 Constitution. One of the principles that must be upheld is justice and social welfare
for all Indonesian people. Corruption harms the wider community and hinders national develop­
ment, so it needs to be dealt with firmly. Previously proposed law revisions, such as criminalising
trading in influence, increasing legal sanctions, protection for whistleblowers, and strengthening
cooperation between law enforcement agencies, actually reflect the values of Pancasila and the
1945 Constitution.

2. Methods
This research on the Study of trading in influence (Indonesia): a critical study uses a normative
juridical approach (library research) (Ariawan, 2013). Collecting legal materials, both primary,
secondary, and tertiary (Agusalim et al., 2022). The technique of collecting materials used in this
study was carried out by identifying literature in legislation, books, official documents, papers, and
several other sources related to this research. Conduct studies and analyses using the statute,
conceptual, comparative, and historical approaches (Mahmud Marzuki, 2005). The nature of
research writing used in this research is descriptive-prescriptive (Fernando et al., 2023). Then, all
the materials that have been collected, analyzed, and processed qualitatively and to classify legal
materials are then used content analysis to make this research get the answers or desired results
(Fernando, 2022).

3. Result and discussion

3.1. Trading in influence in the ius constituendum concept

Trading in influence is regulated in Article 18 of the United Nations Convention Against Corruption
of 2003 (UNCAC 2003) letter (a) and letter (b) of the provision, which reads as follows: “Each State
Party shall consider adopting such legislative and other means- ures as may be necessary to
establish as criminal offenses when committed intentionally:

(a) The promise, offering, or giving to a public official or any other person, directly or indirectly, of
an undue advantage in order that the public official or the person abuses his or her actual or
supposed influence to obtain from an administration or public authority of the State Party an
undue advantage for the original instigator of the act or any other person;
(b) The solicitation or acceptance by a public official or any other person, directly or indirectly, of
an undue advantage for himself or herself or another person in order that public official or
the person abuses his or her actual or supposed influence to obtain from an administration
or public authority of the State Party an undue advantage”.(Brigita P. Manohara, 2017)

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Based on this provision, there are two parts: trading influence, namely: active trading in the
influence, which means making an offer to trade influence as referred to in article 18(a), and
passive trading influence which means accepting an offer to trade influence as referred to in
article 18(a). Article 18(b) (Haryanti, 2021). The article above contains a regulation regarding the
definition of trading in the influence, which in the first point clearly states any promise or offer to
a public official or another person, either directly or indirectly, which can provide an undue
advantage, so that the public official or person uses its influence. Improperly or has the intention
to obtain an object or improper advantage from a public official for the interest of the instigator or
the interest of another person; and second, namely a request or acceptance by a public official or
anyone, either directly or indirectly (Timoty & Firmansyah, 2020). The main point of trading in
influence is the value or level of influence. The influence exerted can be tangible (money, valu­
ables, promotions) or perceived (sexual pleasure, information, vacation). The pattern of evidence of
the influence of buying and selling can be seen from the relationships owned by the parties, for
example, kinship, organization, friendship, parties, or others. The concept of trading in influence is
closely related to the concept of power. Trading in influence has to do with having power by
someone and having access to that power by someone else. Access in question can be in the form
of personal closeness. Thus, those who have access to it can take advantage of the situation for
trading leverage (Viladelfia & Octora, 2021).

The objectives of the United Nations Convention Against Corruption 2003 (UNCAC 2003) are as
follows (Hiariej, 2020):

(a) Prevent and eradicate corruption efficiently and effectively. Therefore, there must be coordi­
nation between anti-corruption agencies, including guarantees and protection for those who
report suspected corruption;
(b) International cooperation and technical assistance are criminal assets. Cooperation here is
not only between countries participating in the convention but cooperation is also carried out
with countries that are not parties to the convention;
(c) Integrity, accountability, transparency, and good management in the public sector.

The purpose of the 2003 United Nations Convention Against Corruption (UNCAC 2003) is actually in
line with the objectives of the Indonesian constitution, namely the 1945 Constitution of the
Republic of Indonesia and Pancasila. In Chapter III of the United Nations Convention Against
Corruption in 2003 (UNCAC 2003) related to criminalization and law enforcement, 11 acts are
criminalized as corruption (Agbiboa, 2013). The eleven acts are as follows:

(a) Bribery of national public officials;

(b) Bribery of foreign public officials and officials of public international organizations;
(c) Embezzlement, misappropriation, or another diversion of property by a public official;
(d) Trading in influence;
(e) Abuse of function;
(f) Illicit enrichment;
(g) Bribery in the private sector;
(h) Embezzlement of property in the private sector;
(i) Laundering of proceeds of crime;
(j) concealment;
(k) Obstruction of justice.

Of the eleven acts criminalized in the United Nations Convention Against Corruption in 2003
(UNCAC 2003), some are mandatory offenses, and some are non-mandatory offenses. These two
characteristics are inseparable from the agreement of the participating countries of the followed

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convention (Hoseah, 2014). Suppose an action that is criminalized is mandatory. In that case, it
means that there is an agreement by all convention participants to regulate the action in their
national Law, thus creating obligations from the state parties. On the other hand, if an action is not
mandatory, there is no agreement among the convention participants to declare the action
a crime (Hiariej, 2020). However, for the national interest and to fill the legal vacuum on a new
issue, the State of Indonesia should follow all in the UNCAC convention agreement without
exception regarding its urgency.

The practice of criminal acts of corruption (TIPIKOR), namely trading in influence or other foreign
languages, is called traffic of influence, influence peddling, undue influence, or influence market
(Nathaniel, 2015). It can be found in several significant cases in Indonesia, for example, through
the corruption case of beef import quotas with the defendant Lutfi Hasan Ishaaq (Bondan Ferry
Prasetio, 2017). The case of imported beef, for example, referring to decision 38/PID.SUS/TPK/2013/
PN.JKT.PST the corruption crime committed by Luthfi Hassan Ishaq was sentenced to bribery as
stated in the Article he was charged with, namely Article 12 of Law Number 31 of 1999 in
conjunction with Law Number 20 of 2001 concerning the Eradication of Corruption Crimes.
Based on the indictment, the defendant, the General Chair of the Prosperous Justice Party (PKS),
has received Rp. 1 billion (one billion rupiahs) from PT. Indoguna Utama, is one of the largest cattle
importers in Indonesia. The money was given as a reward so that Luthfi Hassan Ishaq, could
influence or ask Suswono (Minister of Agriculture), who is his subordinate in the Partai Keadilan
Sejahtera, to increase the beef import quota for PT. Main Indoguna (Satria Bagus Ardi, 2021).
Another case is the case of Irman Gusman as chairman of the Regional Representatives Council,
where the panel of judges at the Corruption Court at the Central Jakarta District Court decided that
Irman Gusman had committed a criminal act of corruption for the sugar import case. And the
latest case M. Romahurmuziy, regarding the sale and purchase of positions at the Ministry of the
Religion Republic of Indonesia (Prasetyo, 2020).

The relationship between the nature of trading in influence and criminal acts of corruption is the
interdependence between the nature of corruption manifested like trading in influence as a trigger
for the emergence of criminal acts of corruption. The main point of trading in influence is the value
of influence. The center of the problem, which provides loopholes for influence-based abuse, needs
to be given greater emphasis and attention. The Corruption Eradication Commission (KPK) has
several times proven cases of corruption that began with trading in influence. However, efforts are
still needed to prove that the act of trading influences corruption. According to Artidjo Alkostar,
trading in influence is a pressure that affects people’s attitudes to determine their opinion so that
it is more pressure, where the pressure can be in the form of (1) political power pressure and (2)
economic pressure. In the sense of the word giving a promise, whatever the form is beneficial to
people, is willing and can be influenced. (See Figure 1) (Satria Bagus Ardi, 2021)

Long before, countries in the blue continent of Europe were already familiar with this trading in
influence. Interestingly, from the publication of the Council of Europe (Coe) in 2000, Trading in
Influence and Illegal Financing of Political Parties, the criminalization of trading in influence is
associated with illegal political financing. This is known as a type of trilateral relationship corrup­
tion with perpetrators, not only state officials but also ordinary citizens, by giving gifts or promises
(Saputra & Dan Ahmad, 2017). Countries that have regulated trading in influence in their country’s
Law are France, Spain, Norway, and Belgium. In France, trading in influence is regulated in the
Penal Code (French Criminal Code) of 1994. Articles 435–2 and 435–4 of the French Criminal Code
regulate both passive and active trading in influence. There are three different versions of trading
in influence in Spain in Article 428–430 of the Criminal Code Chapter Six (6) of the ninth paragraph
(9). Articles 428–430 of the Spanish Penal Code cover the offense of active and passive bribery. In
Norway, trading in influence is a criminal offense under the General Civil Code Code 276c. In
Belgium, Article 247(4) criminalizes both active and passive forms of influence trading (Irza & Jaya,
2020).

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Figure 1. The trading in influ­

ence scheme.

From examples of countries that have made regulations relating to trading in influence in their
countries such as France, Norway, Spain, and Belgium, Indonesia should learn that in developed
countries, the regulation of trading in influence has become an absolute thing that must be
regulated due to the development of crime or criminal acts. Related to corruption is becoming
more complex and complicated, so a complete regulation is needed to ensnare the perpetrators of
trading in influence and avoid a legal vacuum that can become a loophole for irresponsible parties.

The most reasonable effort to include trading in influence rules is through the revision of the Law
on the Eradication of Criminal Acts of Corruption, namely Law Number 31 of 1999 in conjunction
with Number 20 of 2001. However, from a political point of view, it is tough to implement in a short
time because it is too there is much interest in the current Criminal Code Bill. Not to mention, if we
examine further in several drafts of the revision of the corruption law, no regulation regarding
influence trading has been found. This is, of course, very unfortunate because the urgency of the
revision of the Law on the Criminal Act of Corruption must include an agenda of including the
regulation of trading in influence into positive Law. In the future, the researcher agrees with the
draft issued by or the version of Indonesia Corruption Watch (ICW) as follows (Fariz et al., 2014):

“Threatened for trading influence with a minimum imprisonment of 3 (three) years, a maximum
of 10 (ten) years, and a minimum fine of Rp. 100,000,000, - (one hundred million rupiah),
a maximum of Rp. 750,000,000,- (seven hundred and fifty million rupiah):

(1) Everyone who makes promises or offers or gives anything to a public official or another
person, either directly or indirectly, so that the public official or other person abuses his
actual or perceived influence to obtain something from an administrative or public authority
for the interest of that person or any person;
(2) A public official or any person who accepts any promise or offer or gift of anything, either
directly or indirectly, undue benefits for himself or another person so that the public official
or person abuses his actual or perceived influence to obtain something of administrative or
public authority for the benefit of that person or any person”.

Based on the construction of articles or drafts issued by Indonesia Corruption Watch (ICW), the
elements of trading in influence are as follows (Fariz et al., 2014):

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(a) Public officials or any person;

(b) Give or accept any offer of promise or offer to a public official or another person;
(c) Abusing his actual or perceived influence;
(d) Undue advantage;
(e) Elements with intent;
(f) The element obtains something from an administrative or public authority.

From the elements of the Article on trading in influence made by ICW, the existing elements are
complete enough to criminalize trading in influence actors, such as containing elements of public
officials (because in Indonesia, there are indeed many public officials who abuse their positions for
specific interests that can benefit themselves personally). Certain groups or corporations), ele­
ments of giving or receiving offers of promises, elements of abusing their actual or perceived
influence, elements of obscene profits, elements with intent, elements of obtaining something
from administrative or public authorities. So with all these elements, the Article that regulates
trading influence is complete enough to criminalize the perpetrators of criminal acts of corruption
who trade their influence in the jurisdiction of the Republic of Indonesia (Fad, 2020). Trading in
influence is not only a form of corruption in bilateral relations such as bribery but also a form of
trilateral relations. A bilateral relationship is a form of corruption that involves two parties, namely:

(a) The giver of something who wants profit from a public official or state administrator;
(b) The recipient of something (bribe) must be from a public or state official. Administrator.
While the trilateral relationship is a form of corruption that involves three parties, namely the
giver of something who wants profit from public officials or state administrators, influence
sellers (not necessarily public officials/state administrators), and public officials or state
administrators who have the power/authority in managing the affairs of the state. Make
policy.(Gawi & Imtichani, 2021)

The primary difference between trading in influence and passive bribery is in the arrangement, the
parties involved, the Article’s content, the legal subjects involved, the form of the act, and the
receipt of profits. In trading in influence, the perpetrators can come from non-state administrators/
executors but have public access or authority. In contrast, in the case of passive bribery, the
absolute perpetrators are state administrators who benefit from unilateral policies (Tondatuon,
2021). Trading in influence cannot be underestimated because of future developments, and the
modus operandi related to trading in influence is more and more happening in Indonesia.
Therefore, the State of Indonesia must pay attention and be vigilant by making regulations that
are by the conditions of the nation and state so that the crime of trading in influence does not
develop into something that cannot be held criminally responsible.

Some countries have strict regulations to prevent this practice, while others may have less strict
regulations. Here are some examples of trading in influence rules in different countries such as the
United States has several laws aimed at preventing trading in influence, such as the Foreign
Corrupt Practices Act (FCPA) and lobbyist laws (Low & Davis, 2015). The FCPA prohibits US compa­
nies and US citizens from giving bribes to foreign officials to influence their decisions. In addition,
companies registered in the US are required to report payments made to foreign officials (Berghoff,
2017). The UK has laws prohibiting bribery, including the Bribery Act 2010. This act prohibits both
domestic and foreign bribery, and includes trading in influence (Bello, 2013). Companies that break
these laws can be penalised with unlimited fines, while individuals involved can be sentenced to
imprisonment for up to 10 years. Some European Union member states have regulations that
prohibit trading in influence. For example, France has a law prohibiting bribery and trading in
influence, including in relation to foreign officials. Australia has regulations related to trading in
influence at the federal and state levels. The Criminal Code Act 1995 at the federal level includes
prohibitions on bribery and trading in influence. In addition, some states have more stringent

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regulations, such as the Independent Commission Against Corruption (ICAC) in New South Wales
which investigates and takes action against trading in influence. It should be noted that the rules
and regulations that exist in each country may vary and evolve over time. However, in general,
many countries have regulations that prohibit trading in influence to prevent corruption and create
a fair and ethical business environment.

Trading in influence can be defined as a practice where an individual sells their influence over
the decisions of government officials or other individuals in positions of power. While this is similar
to bribery, trading in force differs because the individual selling the influence may not have the
ability or authority to control the outcome sought by the buyer. Trading in effect is not explicitly
regulated in the Third Section on Corruption Offenses of Law No. 1 of 2023 on the new Criminal
Code. Articles 603 and 604 of the new Penal Code address acts of enriching oneself or others to the
detriment of the state’s finances or economy, whether through abuse of office or position. While
this may include some aspects of trading in influence, these acts appear to be more focused on
receiving direct material gain due to an abuse of position or authority. Article 605 describes the
crime of giving or promising something to a civil servant or state organizer to make them act or not
act in a way that is contrary to their obligations. This is similar to trading in influence, but the focus
is limited to gifts or promises made to government officials or state administrators. Article 606
deals with giving gifts or securities to a public official or state organizer given their power or
authority. While this may seem similar to trading in influence, it only covers situations where
individuals sell their impact with the natural ability or authority to control the desired outcome.
Based on the above analysis, it appears that Articles 603–606 do not explicitly regulate influence
peddling. While these laws may cover some aspects of influence peddling, none of the articles
specifically describe and provide penalties for such acts.

There are several steps that might be considered in regulating trading in influence in Indonesian
criminal law. First, it could be considered to add a specific article in the Criminal Code that explicitly
regulates trading in influence. This article should clearly define what is meant by trading in
influence and what the penalties are. Secondly, the specific article on influence peddling should
also specify proportional punishment for the act, based on the level of harm or potential harm
caused by the act. Third, for the effectiveness of combating influence peddling, it is important to
clarify who can be considered as the perpetrator (the person selling influence) and the recipient
(the person buying influence). This definition should include individuals as well as corporate
entities. Fourth, in the context of globalization, the trade in influence can also involve foreign
parties. Therefore, the article on trading in influence should also consider how to regulate and
sanction acts of trading in influence involving foreign parties. Fifth, the article should clarify the
penalties for both the giver and the receiver in the context of trading in influence. Thus, in the
context of trading in influence, it is important for the criminal law to provide clear definitions and
proportionate penalties for such acts, as well as to ensure that all parties involved (both givers and
receivers) can be prosecuted.

Take France for example, it is important to understand how France regulates “trading in
influence” in their Nouveau Code Penal (Criminal Code). Article 435–4 of the French Penal Code
makes it clear that trading in influence, whether passive or active, is a criminal offense. It includes
the giving, offering, or receiving of any promise, gift, or benefit, direct or indirect, to abuse real or
alleged influence with the aim of obtaining a decision, award, contract, or other advantage from
a public authority, administrative body, or the public. Compared to the French Criminal Code, the
new Indonesian Criminal Code does not explicitly regulate “trading in influence”. Although there
are several articles (603–606) that address the criminal offenses of corruption and receiving bribes,
none of them directly regulate the act of “trading in influence”. Another difference is that the
French Criminal Code explicitly covers both passive (receiving promises or benefits with the aim of
abusing influence) and active (giving, offering or promising benefits with the aim of abusing the
influence of others) trading in influence.

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3.2. Harmonization of the concept of trading of influence with Pancasila and the 1945
constitution of the republic of Indonesia
The regulation regarding trading in influence in Indonesia has not yet been regulated. If this crime
is seen from the perspective of Pancasila, then indeed, it will contradict the ideology and principles
of Pancasila.

Trading in influence is indeed against the values espoused by Pancasila as the foundation of the
Republic of Indonesia. Here are some reasons why trading in influence is against Pancasila:

(a) First Precept, Belief in One God

Trading in influence violates the moral and ethical principles taught by the religions and
beliefs of the Indonesian people. This practice undermines the order of life based on the One
True God;
(b) Second Precept, Just and Civilised Humanity
Trading in influence ignores the principles of just and civilised humanity by prioritising the
interests of certain individuals or groups, and harming the interests of society as a whole.
(c) Third Precept, Indonesian Unity
The practice of trading in influence can divide the unity of the nation by creating social
injustice and inequality. This can lead to divisions and conflicts among communities.
(d) Fourth Precept, Democracy Led by Wisdom in Consultation/Representation
Trading in influence destroys democratic and populist principles by influencing decision-
making processes and public policies in favour of personal or group interests. This practice
undermines the representative system and weakens public trust in democratic institutions.
(e) Fifth Precept, Social Justice for All Indonesian People
Trading in influence creates social injustice by benefiting a few individuals or groups, while
harming the wider community. This practice hinders the creation of social welfare and
equitable sustainable development for all Indonesians.

Trading in influence is a practice that contradicts the values of Pancasila as the foundation of the
Indonesian state. This practice violates the moral and ethical principles taught by religions and
beliefs, and ignores the principles of fair and civilised humanity by prioritising the interests of
certain individuals or groups. In addition, trading in influence has the potential to divide national
unity by creating social injustice and inequality. It also destroys the principles of democracy and
populism, by influencing decision-making processes and public policies in favour of personal or
group interests, thereby undermining the representative system and weakening public trust in
democratic institutions. Finally, trading in influence creates social injustice by benefiting a handful
of individuals or groups, while harming the wider community, hindering the creation of social
welfare and equitable sustainable development for all Indonesians. Therefore, criminalising trad­
ing in influence will help create fairer, more transparent and accountable governance, in line with
the values of Pancasila.

Trading in influence is an intentional act to promise or offer an undue advantage to public

officials or interested parties to abuse their influence/power to obtain what was agreed, either
directly or indirectly, that leads to positions or materially (Islamy, 2020). The practice of trading
influence is included in the deviation of morality because it is related to the criminal act of
corruption.

In general, influence trading actors come from public officials, political figures, and parties who
have authority in the government. This crime involves several parties—first, the instigator or selling
influence. Second, public officials abuse their power for profit. Third, interested parties want the
benefits of the first or second parties. This distinguishes influence trading from bribery, which is
generally only done by two partie (Ferdinand et al., 2021). However, for the criminal sanction of
trading influence, there is no special regulation that regulates it. The legal vacuum that occurs

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creates doubts for law enforcers to ensnare these crimes so that it has the potential to have
a more significant impact on the economic sector and harm the state.

The crime of trading influence violates the constitution and certainly significantly hampers the
pace and development of the national economy. Contrary to Article 33 of the 1945 Constitution of
the Republic of Indonesia and violate the principles therein. Violating Article 33 Paragraph (1) of
the 1945 Constitution of the Republic of Indonesia, because the government should coordinate
and maintain the national economy for the prosperity and welfare of the people, not hinder and
harm the people to enrich themselves. Violating Article 33 Paragraph (2) of the 1945 Constitution
of the Republic of Indonesia, economic policies are formed according to the state constitution for
the survival of the people, not for personal control or use. They are violating Article 33 Paragraph
(3) of the 1945 Constitution of the Republic of Indonesia because it takes away the rights of other
individuals (Pratama, 2018).

That is why it is important to regulate trade in influence (Ferdinand et al., 2021):

(a) The phenomenon of corruption has recently undergone many developments, both in terms
of cases and modes, so this has become a scourge for law enforcement officials to process
several acts to be categorized as criminal acts. One of the examples is trading in influence;
(b) The practice of trading in influence is currently happening amid the public, but due to legal
limitations, it is difficult for law enforcers to ensnare the perpetrators;
(c) Cases of corruption that occurred in Indonesia, for example, are the cases of Ahmad
Fathanah and Luthfi Hasan Ishaq against the agriculture minister Siswono in the beef import
case or the case of Choel Malarangeng against PT. Adhi Karya, who is said to have asked
fee18% in development projects sports center Hambalang, is an example of corruption cases
with the modus operandi of trading in influence. If this does not immediately have a definite
legal basis or is not immediately enforced as positive Law in Indonesia, it is feared that it will
become a continuous and repeated mode;
(d) Countries in the world, especially participating countries from the High-Level Conference on
9-11 December 2003 in Merida, Mexico, one of which is France, Spain, and Belgium, have
ratified and established trading in influences the positive Law of the country and one of the
things to pay special attention to in case modes, especially corruption cases. Therefore,
Indonesia, which has ratified in 2006 and with the many events that have occurred, it is
time to immediately enact provisions or regulations regarding trading in influence become
Indonesian positive Law.

Criminalising trading in influence requires a comprehensive and effective legal approach. Here are
some steps that can be taken to regulate and criminalise trading in influence:

(a) Defining trading in influence

Firstly, the law should clearly define trading in influence as a criminal offence. This definition should
include various forms of trading in influence, such as the provision of bribes, gifts or other rewards
to public officials or private parties with the aim of influencing their decisions or actions for
personal or third-party gain.
(b) Develop laws and regulations
Having defined trading in influence, it is necessary to draft laws and regulations that specifically
regulate and criminalise the act. This includes establishing criminal sanctions, such as fines,
imprisonment, or a combination of both, for offenders found to be trading in influence.
(c) Effective enforcement of the law

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Effective law enforcement is essential to ensure that perpetrators of trading in influence are
prosecuted and punished in accordance with applicable laws. This involves capacity building and
coordination between law enforcement agencies, such as the police, prosecutors and courts.
(d) Whistleblower protection
Set up protections for individuals who report suspected trading in influence, including protecting
their identity and providing legal support where necessary. These protections will encourage more
whistleblowers to disclose cases of trading in influence without fear of threats or intimidation.
(e) Education and awareness campaigns
Conduct education and awareness campaigns on the dangers of trading in influence for the general
public, and invite the private sector and civil society organisations to participate in efforts to
prevent and combat such acts.
(f) Promoting transparency and accountability
Make it mandatory for public officials and private parties to report gifts, donations or other rewards
received in their capacity. This will help prevent trading in influence by increasing transparency and
accountability in government systems.

By regulating and criminalising trading in influence through the above measures, countries can be
more effective in eradicating the practice and creating a fairer and more transparent environment
for all parties.

4. Conclusions
Adopting the United Nations Convention Against Corruption (UNCAC) at the High-Level Conference
on 9–11 December 2003 in Merida, Mexico, is one of the world’s responses to corruption crimes
that can endanger and threaten the balance of world peace and even paralyze democracy.
Therefore, based on shared interests, the international community agreed to form
a commitment to eradicate corruption. On 19 September 2006, Indonesia finally ratified the
convention through Law No. 7 of 2006. A ratification is a form of Indonesia’s commitment to
the international community as an effort to eradicate corruption. In the next stage, Indonesia
became the first country to be reviewed and reviewed on 14–19 16 March 2011. Many weaknesses
were found from the review results, including UNCAC norms that have not been accommodated in
positive Law in Indonesia. One of the things from the review concerns an encouragement to apply
UNCAC norms into the national Law on corruption eradication, namely Article 18 of UNCAC
concerning trading in influence where until now Indonesia has not yet implemented the regulation
trading in influence in the positive Law.

The consequence of the ratification of UNCAC by Indonesia is the necessity to adopt important
norms into Indonesian positive Law. This is done to catch up with the gaps and shortcomings of
the current corruption law. Corruption exists in very diverse forms, both simple and complex, such
as: mark up, markdown, bribes, gratuities, etc. Moreover, the most dangerous thing is the occur­
rence of corruption with a pattern or method of hijacking state functions for business, political, or
both interests with one of the methods through trading in influence trading. According to Artdjo
Alkostar, the late professor of the law faculty of the Islamic University of Indonesia, trading in
influence is a pressure that influences people’s attitudes to determine their opinions so that it is
thus more of a pressure nature, where pressure can be in the form of (1) political power pressure,
and (2) economic pressure. So the concept of influence or trading in influence has the exact
correlation with criminal acts of corruption because trading in influence includes from policy­
holders and because of their power to commit criminal acts of corruption, not only by power
holders but private parties or individuals can trade influence because of their proximity or other
influences.

Settings about trading in influence very much needed in eradicating corruption (TIPIKOR) today
and in the future, regulations regarding corruption trading in influence also do not conflict with the
values that live in the Indonesian nation, especially not contrary to the constitution, namely the

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Constitution of the Republic of Indonesia (UUD NRI 1945) and also staatsfundamental or Grund
norm Indonesian nation, namely Pancasila.

Criminalising trading in influence involves steps such as clearly defining the act, drafting specific
laws and regulations, effective law enforcement, whistleblower protection, and public education
and awareness campaigns. In addition, it is necessary to promote transparency and accountability
by regulating the obligation for public officials and private parties to report gifts, donations or other
rewards received. In an effort to tackle corruption, collaboration between the government, private
sector and civil society is essential to create more effective regulations in combating corruption
and improving the nation’s welfare. The implementation of these measures will help Indonesia
create a cleaner government and boost public trust and investment in the country’s economy.

Acknowledgments Berghoff, H. (2017). “Organised irresponsibility”? The sie­

I want to thank all those who have helped so that this
research paper can be completed, including the authors of
books, journals, etc., who helped with the writings that
I quoted to enrich the scientific treasures in this paper.
This research paper is still far from perfect, so input from
various parties is expected. In the future, this paper can
be a reference for academics, practitioners, and the public
in seeing legal cases that arise in the community.
Funding
This research received no external funding.
Author details
Erdianto Effendi1
E-mail: erdianto.effendi@lecturer.unri.ac.id
ORCID ID: http://orcid.org/0000-0002-6649-8759
Zico Junius Fernando2
ORCID ID: http://orcid.org/0000-0001-7285-2147
Ariesta Wibisono Anditya3
M. Jeffri Arlinandes Chandra4
1
Fakultas Hukum, Universitas Riau, Riau, Indonesia.
2
Fakultas Hukum, Universitas Bengkulu, Bengkulu,
Indonesia.
3
Fakultas Hukum, Universitas Jenderal Achmad Yani,
Yogyakarta, Indonesia.
4
Fakultas Hukum, Universitas Terbuka, Jakarta, Indonesia.
Disclosure statement
No potential conflict of interest was reported by the
author(s).
Citation information
Cite this article as: Trading in influence (Indonesia):
A critical study, Erdianto Effendi, Zico Junius Fernando,
Ariesta Wibisono Anditya & M. Jeffri Arlinandes Chandra,
Cogent Social Sciences (2023), 9: 2231621.
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