B&A Opinion – Continuing the fight against corruption

The Jakarta Post | Opinion | Tue, September 15 and 16 2014
Author by Fritz Siregar, Of Counsel from Budidjaja & Associates
Finally, the Constitutional Court confirmed Joko “Jokowi” Widodo as the seventh president of Indonesia. There are no other constitutional methods that can be pursued in order to challenge his legitimacy. His rival, Prabowo Subianto, not only disputed the votes that he claimed to be lost, but he also challenged the performance of the General Elections Commission (KPU) in conducting the presidential election and the behavior of Jokowi’s campaign team. Yet the court and the Election Organization Ethics Council (DKPP) ruled that the KPU had conducted a satisfactory job overall in organizing the presidential election throughout Indonesia and overseas, a difficult task that won global praise despite many shortcomings. On July 9, 133 million voters made the highest number of voters for a voting day worldwide.

President Susilo Bambang Yudhoyono may have won the 2009 presidential race with 60 percent of the vote, but he did not have the public support Jokowi enjoyed, particularly through volunteer activism. And it is Yudhoyono’s numerous unfinished tasks that will be the true test for the new leader. Thus, Jokowi will need much more public support.

Legal reform has been on the agenda since the fall of Soeharto. Reform teams at the Supreme Court, the Attorney General’s Office and the National Police have been among those established for such reform. Recommendations have been submitted not only by the Presidential Advisory Council but also various institutions and civil society groups, however these have been taken up more slowly than intended.

The slow process is blamed on various reasons, such as coordination between institutions, the lack of implementing regulations and under-motivated leaders and their subordinates, as well as corruption. The direct result is discriminate law enforcement. Article 27 of the 1945 Constitution already grants the constitutional right of equality before the law, and the government must respect the law, with no exceptions.

However, law enforcement is still perceived to be discriminate, or tebang pilih. The legal mafia still operates in the judiciary, the police and the public prosecution. The parties with power can frame and extort victims for money. One example: in the name of the law on religious blasphemy, people who worship in a different way from mainstream Islam have been attacked, virtually without the attackers being questioned by authorities.

For instance, the Supreme Court issued a ruling allowing the establishment of the Yasmin Church in Bogor, West Java, however the decision is still unenforceable, just as the Bank Century bailout case has never come to completion. The list could go on and on. Part of the problem relates to contradicting regulations. Strong political support from and for Jokowi is needed to create real enforcement.

Further, prevention of gratification was regulated by Law No. 31/1999 and Law No. 20/2001 on the Corruption Eradication Commission (KPK). Article 12B of the 2001 law states that graft includes money, rebates (discounts), goods, commissions, interest-free loans and other facilities that could trigger acts of corruption or bribery. Gratification also includes gratuities received from domestic or foreign parties, performed with or without the use of electronic means.

If found to have violated these statutes, an offender could receive a criminal penalty of either life imprisonment or a term of four to 20 years in prison and could be imposed a fine of at least Rp 200 million (US$1,6993), but most commonly Rp 1 billion.

The cases of the former Constitutional Court chief justice Akil Mochtar, former Democratic Party chairman Anas Urbaningrum, former youth and sports minister Andi Marallangeng, inactive Banten governor Ratu Atut Chosiyah and former Upstream Oil and Gas Regulatory Special Task Force (SKKMigas) chief Rudi Rubiandini are just a few examples of high public officers that ended up at the KPK as a result of graft and bribery.

In Indonesia, where the giving of presents or gifts might be seen as a cultural gesture, every public servant and state official must report gifts to the KPK within 30 days of receiving them, and the KPK determines whether the gift shall be held by the recipient or should be included in state assets. The KPK is responsible for managing such reports and reviewing anything that public servants and state officials receive during their official terms.
In the early years of his presidency, Susilo Bambang Yudhoyono was focused on the anti graft war. In 2013 alone, the Corruption Eradication Commission (KPK) received 1,400 graft reports, one of which involved a bass guitar from Metallica band member Roberto Trujilo, presented to Jakarta Governor Joko “Jokowi” Widodo. As of July 31, the KPK had received 1,154 graft reports; 536 of the reported cases led to the KPK deciding the items were state property. Discriminatory law enforcement and gratification are related and have cause and affect.

The failure to properly manage graft reporting and enforce harsh punishment for public officials who fail to report graft likely provides more opportunities for discriminatory law enforcement.
Failure to report graft by public servants and state officials is not an ethical issue anymore. It is against the law! Their failure to report graft is a breach of their oath of government, thus is an indication of how well a government officer performs his or her duties. Several existing laws need to be updated, partly as they are a product of the old colonial regime and as a new legal context for the legislature is needed to accommodate the latest improvements.

The Criminal Law Procedure and Criminal Code are both currently under discussion at the House of Representatives. The draft code, which has been part of the National Legislation Program (Prolegnas) since 2010, needs to be carefully examined. Does it support the protection and enrichment of law enforcement, or diminish it? Unless the enactment of the draft becomes the agenda of the new government, the loopholes in existing procedural and criminal law will continue to exist.

Failure to report graft has also been traced to the significant increase in the wealth of public officials.Existing law does not recognize the concept of “illicit enrichment”, a term that has been defined and regulated under the UN Convention Against Corruption (UNCAC).

However, eradicating illicit enrichment can only be effective if it is linked with asset and income declaration. Government officials are obliged to submit reports on the wealth of state officials as regulated in Law No. 28/1999 on clean governance (UU Penyelenggaraan Negara yang Bersih and Bebas dari Korupsi, Kolusi dan Nepotisme).

The role of the National Police Commission (Kompolnas) and the Prosecution Commission (Komjak) is to supervise the performance of the police, public prosecutor and Attorney General’s Office. However, neither of those commissions is effective. Kompolnas mostly acts as an advisory body to the president and has no authority to conduct investigations based on public complaints. On the other hand, Komjak has greater authority to supervise the performance of the Attorney General’s Office but, in reality, their complaint mechanism has not worked effectively. There is great demand to combine these external legal enforcement supervisory bodies and increase their authority to allow scrutiny of day-to-day operations.

Yudhoyono was successful in corruption eradication in his first term, but he failed to achieve the same for his second term because he mostly acted as chairman of his Democrat Party instead of as president, as scholars also observed, particularly given several Democrat officials becoming implicated in corruption cases.

Political scientists acknowledge the term of “punctuated equilibrium” — a phase or moment in which total reform of an institution is possible given adequate public support for reform at the time. Once that moment has passed, institutional reform becomes much more difficult. It may be a lack of spirit, moment or timing that has faced efforts of institutional reform. At this moment, Jokowi has his punctuated equilibria to conduct those reforms.

He has no political baggage and has greater public support than Yudhoyono to do what it takes to create significant change in Indonesia. If Jokowi uses his momentum to act as a bold innovator and to orchestrate the reform needed in judicial enforcement, strengthen the KPK and the Corruption Court, he will able to bring about real change and not just a promise of it for Indonesia.

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