Indonesia's already faltering war against corruption risks grinding to a total halt if a new anti-corruption draft law now circulating in Parliament and executive offices is finally passed. In its present form, the draft legislation boldly calls for the abolition of the recently established Corruption Court, which would in turn render the already understaffed and underfinanced five-member Corruption Eradication Commission (KPK) a toothless tiger.
The two independent institutions had been widely credited with taking the fight to Indonesia's endemic culture of official graft and corruption, which has resulted in a handful of high-profile convictions. The Corruption Court started to have impact soon after President Susilo Bambang Yudhoyono rose to power in 2004 and declared a high-profile war on graft. According to Transparency International, a global corruption watchdog, Indonesia consistently ranks among the most corrupt country in the world.
That has historically diverted substantial resources earmarked for national development into politicians' and officials' personal accounts. Former president Suharto stands widely accused of spiriting billions of dollars from the national coffers over his 32-year tenure. A criminal case against the former dictator, involving US$600 million he allegedly took from seven charitable foundations, was dropped last May because of his declining health. While Yudhoyono's anti-graft drive has netted certain powerful politicians, it has notably failed to move against Suharto's cronies and senior military officials. If the Corruption Court is, as called for under the draft legislation, eventually abolished, Yudhoyono's credibility among foreign investors will be severely dented.
Independent polls have consistently shown that endemic corruption and the lack of a level playing field are two of the biggest complaints among existing and potential investors. Denny Indrayana, representative to Indonesian Court Monitoring, a local non-governmental organization tracking judiciary reform, characterizes the anti-corruption draft law as "the counterattack of the corruptors", because it would act to insulate and protect politicians and state officials from being implicated in future corruption cases. He notes that the draft legislation is founded on the legal challenges made by certain powerful officials and business people who have recently been charged and convicted of corruption.
The anti-reform ball allegedly started rolling when former National Elections Commission head Nazaruddin Sjamsuddin and member Mulyana W Kusumah were both imprisoned on corruption charges by the Corruption Court. Sjamsuddin, a once-respected political scientist, was sentenced to seven years in prison in December 2005 on charges he had received kickbacks from an insurance firm that won a contract related to the holding of a certain election. In their defense, both former officials argued that the Corruption Court lacked legal legitimacy and requested a high-level judicial review. The Constitutional Court last December in effect agreed with their legal argument and ruled that the creation of the Corruption Court under the KPK law was unconstitutional. In its controversial decision, the court ruled that the Corruption Court had created a "dualism in the judicial system and an absence of legal certainty, because suspects tried in two different courts could receive different treatment".
Data compiled by Indonesia Corruption Watch (ICW), a local anti-corruption watchdog, indicate that the Corruption Court has in its short existence consistently performed better than the Administrative Court. Strong track recordAccording to ICW, of the 125 corruption cases heard last year at the Administrative Court, 40 of the defendants were released without sanction, and of those convicted, most received light sentences. That is, 37 people were jailed for less than two years, 32 for periods ranging between two and five years, and only 16 convicts received jail terms of more than five years. In comparison, not one of the suspects charged in the 32 cases heard by the Corruption Court escaped indictment.
Furthermore, ICW noted that the Corruption Court worked faster, handed down heavier sentences and forced larger restitution payments. As currently constituted, the Corruption Court has three levels and operates under the authority of the Supreme Court chief justice. At the same time, it has stricter procedures and deadlines for its judges to complete the various stages of a trial than other Indonesian courts. Moreover, it in some ways transcends the judiciary in that it consists of 21 ad hoc non-career judges, some of whom were appointed from non-judicial legal backgrounds. Corruption monitors contend that those special provisions allowed the Corruption Court to act quickly and decisively, avoiding the political horse-trading and behind-the-scenes deal-making between defendants and judges that many have alleged fundamentally compromise the judiciary's ability to adjudicate corruption cases fairly.
The Corruption Court's critics, however, claim that the non-legalistic backgrounds of its judges mean they often lack sufficient understanding and technical expertise of the jurisprudence involved with corruption cases. Following that argument, Hamzah, the Justice Ministry appointee, has proposed that all future corruption cases be handled exclusively by the Administrative Court. In Article 36 of the draft law, the investigation of corruption cases would in the future be done by the police, public prosecutors' offices and KPK investigators, but the results of those inquiries would then be handed over to the public prosecutor for trial at the Administrative Court. That is, the Corruption Court could no longer indict corruption suspects - and hence would have no mandate to exist. Article 36 is not the only article worrying anti-graft campaigners. For instance, Article 13 of the draft legislation states: "Any person who intentionally makes a false report of a person committing a criminal act of corruption will be punished by a maximum of three years in jail." Such a clause clearly would make people reluctant to report corruption cases in fear of being charged if the Administrative Court rules the defendant's favor.
Meanwhile, Article 34 states, "The authority to prosecute a criminal act of corruption lapses after 18 years have passed since the actual corruption took place." Most analysts believe this article would pave the way for perpetrators of various past egregious cases of corruption, including the massive graft that occurred under Suharto's New Order regime, to retain alleged billions of dollars' worth of ill-gotten gains. Other perceived weaknesses in the draft legislation have been highlighted by Romli Atmasasmita, a well-known legal expert from Padjadjaran University. He notes that the draft law conspicuously lacks articles aimed at preventing corruption, as well as appropriate measures to force people proved guilty of corruption actually to return their ill-gotten assets. He also notes it does not have provisions on international cooperation in fighting corruption. Others note that the draft legislation has its positive points. For instance, Article 8 says corrupt individuals in private institutions, such as hospitals and universities, will no longer be immune from investigation by law-enforcement officials. Currently, such individuals cannot be indicted.
Article 21, meanwhile, states that it would no longer be necessary to obtain permission from the president before investigating or prosecuting politicians and public officials. And even more broadly, it significantly widens the definition of corruption to include the "misuse of authority" and is no longer limited to stealing from the state coffers or accepting bribes. Still, the draft law remains highly controversial and all eyes are now on President Yudhoyono, who has the final authority on whether to send the legislation to the House of Representatives for a vote. Leading figures of the two main parties in the House - Golkar and the PDI-Perjuangan - have already hinted their support for the proposal. Hamzah, for his part, believes that Yudhoyono will send the draft legislation down by May. In its so-called Barometer of Global Corruption 2006, Transparency International singled out Indonesia's House of Representatives as the most corrupt institution in the country. ICW is preparing its own rear-guard action and has stated that it will present its own counter-draft corruption law in the coming weeks. Meanwhile, Indonesia's once-bold anti-corruption drive hangs precariously in the balance.
The two independent institutions had been widely credited with taking the fight to Indonesia's endemic culture of official graft and corruption, which has resulted in a handful of high-profile convictions. The Corruption Court started to have impact soon after President Susilo Bambang Yudhoyono rose to power in 2004 and declared a high-profile war on graft. According to Transparency International, a global corruption watchdog, Indonesia consistently ranks among the most corrupt country in the world.
That has historically diverted substantial resources earmarked for national development into politicians' and officials' personal accounts. Former president Suharto stands widely accused of spiriting billions of dollars from the national coffers over his 32-year tenure. A criminal case against the former dictator, involving US$600 million he allegedly took from seven charitable foundations, was dropped last May because of his declining health. While Yudhoyono's anti-graft drive has netted certain powerful politicians, it has notably failed to move against Suharto's cronies and senior military officials. If the Corruption Court is, as called for under the draft legislation, eventually abolished, Yudhoyono's credibility among foreign investors will be severely dented.
Independent polls have consistently shown that endemic corruption and the lack of a level playing field are two of the biggest complaints among existing and potential investors. Denny Indrayana, representative to Indonesian Court Monitoring, a local non-governmental organization tracking judiciary reform, characterizes the anti-corruption draft law as "the counterattack of the corruptors", because it would act to insulate and protect politicians and state officials from being implicated in future corruption cases. He notes that the draft legislation is founded on the legal challenges made by certain powerful officials and business people who have recently been charged and convicted of corruption.
The anti-reform ball allegedly started rolling when former National Elections Commission head Nazaruddin Sjamsuddin and member Mulyana W Kusumah were both imprisoned on corruption charges by the Corruption Court. Sjamsuddin, a once-respected political scientist, was sentenced to seven years in prison in December 2005 on charges he had received kickbacks from an insurance firm that won a contract related to the holding of a certain election. In their defense, both former officials argued that the Corruption Court lacked legal legitimacy and requested a high-level judicial review. The Constitutional Court last December in effect agreed with their legal argument and ruled that the creation of the Corruption Court under the KPK law was unconstitutional. In its controversial decision, the court ruled that the Corruption Court had created a "dualism in the judicial system and an absence of legal certainty, because suspects tried in two different courts could receive different treatment".
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It also ordered that the Corruption Court be disbanded within three years unless the House of Representatives enacted a new law mandating its existence. The Justice Ministry then appointed Andi Hamzah, a former Tri Sakti University professor, to lead a team of experts to draft the enabling legislation. However, rather than authorizing the existence of the Corruption Court, as seemingly suggested by the Constitutional Court, the new anti-corruption draft law has instead paved the way for its demise. Article 53 of the relevant law stated that the Corruption Court was established expressly to try corruption cases investigated by the KPK. The corruption cases handled by the Attorney General's Office, on the other hand, are taken to Administrative Court.
Data compiled by Indonesia Corruption Watch (ICW), a local anti-corruption watchdog, indicate that the Corruption Court has in its short existence consistently performed better than the Administrative Court. Strong track recordAccording to ICW, of the 125 corruption cases heard last year at the Administrative Court, 40 of the defendants were released without sanction, and of those convicted, most received light sentences. That is, 37 people were jailed for less than two years, 32 for periods ranging between two and five years, and only 16 convicts received jail terms of more than five years. In comparison, not one of the suspects charged in the 32 cases heard by the Corruption Court escaped indictment.
Furthermore, ICW noted that the Corruption Court worked faster, handed down heavier sentences and forced larger restitution payments. As currently constituted, the Corruption Court has three levels and operates under the authority of the Supreme Court chief justice. At the same time, it has stricter procedures and deadlines for its judges to complete the various stages of a trial than other Indonesian courts. Moreover, it in some ways transcends the judiciary in that it consists of 21 ad hoc non-career judges, some of whom were appointed from non-judicial legal backgrounds. Corruption monitors contend that those special provisions allowed the Corruption Court to act quickly and decisively, avoiding the political horse-trading and behind-the-scenes deal-making between defendants and judges that many have alleged fundamentally compromise the judiciary's ability to adjudicate corruption cases fairly.
The Corruption Court's critics, however, claim that the non-legalistic backgrounds of its judges mean they often lack sufficient understanding and technical expertise of the jurisprudence involved with corruption cases. Following that argument, Hamzah, the Justice Ministry appointee, has proposed that all future corruption cases be handled exclusively by the Administrative Court. In Article 36 of the draft law, the investigation of corruption cases would in the future be done by the police, public prosecutors' offices and KPK investigators, but the results of those inquiries would then be handed over to the public prosecutor for trial at the Administrative Court. That is, the Corruption Court could no longer indict corruption suspects - and hence would have no mandate to exist. Article 36 is not the only article worrying anti-graft campaigners. For instance, Article 13 of the draft legislation states: "Any person who intentionally makes a false report of a person committing a criminal act of corruption will be punished by a maximum of three years in jail." Such a clause clearly would make people reluctant to report corruption cases in fear of being charged if the Administrative Court rules the defendant's favor.
Meanwhile, Article 34 states, "The authority to prosecute a criminal act of corruption lapses after 18 years have passed since the actual corruption took place." Most analysts believe this article would pave the way for perpetrators of various past egregious cases of corruption, including the massive graft that occurred under Suharto's New Order regime, to retain alleged billions of dollars' worth of ill-gotten gains. Other perceived weaknesses in the draft legislation have been highlighted by Romli Atmasasmita, a well-known legal expert from Padjadjaran University. He notes that the draft law conspicuously lacks articles aimed at preventing corruption, as well as appropriate measures to force people proved guilty of corruption actually to return their ill-gotten assets. He also notes it does not have provisions on international cooperation in fighting corruption. Others note that the draft legislation has its positive points. For instance, Article 8 says corrupt individuals in private institutions, such as hospitals and universities, will no longer be immune from investigation by law-enforcement officials. Currently, such individuals cannot be indicted.
Article 21, meanwhile, states that it would no longer be necessary to obtain permission from the president before investigating or prosecuting politicians and public officials. And even more broadly, it significantly widens the definition of corruption to include the "misuse of authority" and is no longer limited to stealing from the state coffers or accepting bribes. Still, the draft law remains highly controversial and all eyes are now on President Yudhoyono, who has the final authority on whether to send the legislation to the House of Representatives for a vote. Leading figures of the two main parties in the House - Golkar and the PDI-Perjuangan - have already hinted their support for the proposal. Hamzah, for his part, believes that Yudhoyono will send the draft legislation down by May. In its so-called Barometer of Global Corruption 2006, Transparency International singled out Indonesia's House of Representatives as the most corrupt institution in the country. ICW is preparing its own rear-guard action and has stated that it will present its own counter-draft corruption law in the coming weeks. Meanwhile, Indonesia's once-bold anti-corruption drive hangs precariously in the balance.
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