Source: Tajuk Rencana Bukan Perwakilan Koruptor. Images from Detik Ini 17 Tahun yang Lalu Reformasi Dimulai and Masinton Ungkap Proses Konsolidasi Mahasiswa untuk Jatuhkan Soeharto. Members of the House of Representatives http://www.dpr.go.id/anggota.
By Budiman Tanuredjo, Kompas daily, 4 July 2017
The actions of the Indonesian House of Representatives Committee of Inquiry into the Corruption Eradication Commission (KPK) are becoming increasingly absurd. The Inquiry Committee is to go on safari to Pondok Bambu and Sukamiskin prisons to meet prisoners convicted of corruption offences. It is hoped the Inquiry Committee will find information on how the corruption convicts were treated inappropriately by the Commission.
“We want to look for information about anything they have felt while they were witnesses, suspects and prisoners convicted in corruption cases,” said Deputy Chairman of the Inquiry Committee Rep. Risa Mariska (PDIP-West Java), House member for the electoral district covering the towns of Bogor and Bekasi. She said the Inquiry Committee has received information there was improper treatment when the suspects were interviewed by the Corruption Eradication Commission.
Doubtless the Inquiry Committee will not have any trouble meeting any number of corruption prisoners. Take for instance former Chief Justice of Indonesia’s Constitutional Court Akil Mochtar, former Democrat Party Representative and party treasurer Muhammad Nazaruddin, former Democrat Party Representative and party secretary-general Anas Urbaningrum, former Democrat Party Representative Angelina Sondakh, former Banten province Governor Atut Chosiyah, along with any number of other names. From them, one can guess, will emerge any amount of ammunition to finish off the Commission as an ad hoc institution ending in the Commission being disbanded or neutered.
Parahyangan University criminal law lecturer Agustinus Pohan views the effort of the Inquiry Committee as an attempt by politicians to take revenge on the Commission. “The fight against corruption is now dealing with white-collar plunderers who want to prove their power to pay back,” Pohan said.
Earlier, Deputy Chairman of the House Inquiry Committee into the Corruption Eradication Commission Rep. Taufiqulhadi (Nasdem-East Java) planned to invite constitutional law experts to justify the legality of the Inquiry. “Some say this inquiry is not appropriate. Different opinions are all right but we hope it can be kept balanced,” said the National Democratic Party politician, as quoted by Kompas daily on 30 June 2017.
The action of the Inquiry Committee in inviting constitutional law experts Professor Dr Yusril Ihza Mahendra and Professor Jimly Asshiddiqie to appear will be a priority before it calls Rep. Miryam S. Haryani (Hanura-West Java) who has been arrested by the Commission. Miryam was declared a suspect by the Commission over allegations she provided false information. Her case is to go to trial soon.
The origins of the House Inquiry Committee started when the Commission leadership rejected a request from House of Representatives Commission III to make public the recording of the examination of Miryam Haryani by Commission investigators. The Commission refused to make the recording public without a trial. Up until now, recordings resulting from wiretaps have always been made public in trial hearings. Previously as a witness appearing before the Criminal Corruption Court, Miryam retracted part of her testimony contained in a brief of evidence giving as the reason that she had been coerced by Commission investigators.
In response to the retraction of her testimony in the brief of evidence, senior Commission investigator Novel Baswedan was examined as a witness in the trial. Novel testified there had been no intimidation or coercion. Novel went so far as to claim Miryam had been influenced by House of Representatives colleagues to retract the testimony in the brief of evidence. Novel mentioned several names including Rep. Bambang Soesatyo (Golkar-Central Java) and Rep. Masinton Pasaribu (PDIP-Jakarta) as those who had influenced Miryam. She denied ever having referred to their names. From this, House Commission III asked the Corruption Eradication Commission to make the recording public which the Commission refused to do.
Whether it is related or not is not known, but Novel Baswedan was attacked with acid by an unknown assailant several days after testifying. His eyesight was damaged. He was taken to hospital and is still receiving ongoing treatment. Police are still investigating the case but so far the person who sprayed Novel with acid has not been identified.
After undergoing further questioning at the Commission’s Jakarta offices on Wednesday 21 June, Hanura Party politician Rep. Miryam S. Haryani’s (Hanura-West Java) brief of evidence was declared complete, or Form 21 was issued, and ready for trial in relation to the case of providing false testimony in the electronic identity card implementation corruption trial.
The House of Representatives Inquiry Committee into the Commission seems to need to look for political support from constitutional law experts. Earlier 357 academics from various universities and a range of disciplines issued a “petition” rejecting the House Inquiry Committee into the Commission on a number of grounds. The 357 academics included Professor Dr Mahfud MD, Professor Dr Denny Indrayana, Professor Dr Rhenald Kasali and many other prominent academics.
Inviting experts in constitutional law or inviting anyone else is obviously perfectly legitimate. The Inquiry Committee has indeed been given legislative authority to do that. No one is denying that the House of Representatives has the right of inquiry, the right of interpellation and the right to express opinions. But what actually has become an issue is whether it is appropriate for the House to exercise the right of inquiry for the Corruption Eradication Commission. The Commission is a law enforcement agency and an independent institution, not part of the government. Is the action of the House of Representatives in exercising the right of inquiry in line with the will of the people it represents?
Resistance to the use of the House of Representatives’ right of inquiry for the Commission indeed has been strong. The open letter of 357 academics across numerous universities and disciplines is one form of this. These academics have very clearly captured the intention of the House of Representatives in using the right of inquiry as to weaken the Corruption Eradication Commission. The academics have rejected the use of the House’s right of inquiry for the Commission.
Presently, the Commission is investigating a case of alleged corruption involving the procurement of an electronic national identity card involving a number of House members, including House Speaker Rep. Setya Novanto (Golkar-East Nusa Tenggara) who has been banned from traveling overseas. The alleged loss to the public revenue is substantial.
A Kompas daily poll on Monday 8 May 2017 also contained the same message. As many as 58.9 percent of respondents felt the House decision to use the right of inquiry did not represent the interests of the community. While those who thought that it did represent the interests of the community amounted to 35.6 percent. The majority of respondents (72.4 percent) believed the use of the House right of inquiry into the Commission was related to the Commission’s investigation into the electronic identity card corruption case.
In the virtual world, one internet user, Virgo Sulianti Gohardi, garnered support for a petition against the right of inquiry on the site Change.org. As of midday Friday 30 May 2017, the petition had been signed by 44,350 people. Virgo targeted the petition to be signed by 50,000 people.
In terms of representation theory, the formation of the House of Representative Inquiry Committee for the Commission really does not have social legitimacy or has a very low level of representation. In addition, the Democrat Party (PD) House faction, the Prosperous Justice Party (PKS) House faction, and the National Awakening Party (PKB) House faction have refused to join the Committee of Inquiry.
“The Democrats are not responsible for anything in the Inquiry Committee,” said House Deputy Speaker from the Democrat Party Rep. Agus Hermanto (DP-Central Java) at the congress building while stressing that the Democrat Party does not agree with the Inquiry Committee for the Commission.
“We reject the weakening of the Corruption Eradication Commission through the inquiry. The Prosperous Justice Party (PKS) was being consistent by not sending any members, but the PKS is still critical of the Commission,” said Head of the PKS Advisory Council Rep. Hidayat Nur Wahid (PKS-Jakarta). National Awakening Party (PKB) party Chairman Rep. Muhaimin Iskandar (PKB-East Java) was also of the same opinion, rejecting the use of a House inquiry into the Commission.
History of House Inquiries
The right of inquiry is a constitutional right of the House of Representatives. No one can deny this. Article 20A Paragraph 2 of the 1945 Constitution explicitly regulates the right of inquiry. During the period of parliamentary government in the 1950s, the issue of a right of inquiry was also provided for by Public Law No. 6 of 1954 concerning the Right of Inquiry.
In Indonesia’s history the House of Representatives’ right of inquiry was first used in 1959 in a resolution by R.M. Margono Djojohadikusumo that the House use the right to inquire into the government’s attempts to obtain foreign exchange reserves and how it was using them. As recorded by Subardjo in The Use of the Right of Inquiry by the Indonesian House of Representatives in Overseeing Government Policy, a committee of inquiry during Prime Minister Ali Sastroamidjojo’s first cabinet (30 July 1953 to 12 August 1955) was given six months. However, this was subsequently extended twice and the committee completed its work in March 1956 during the administration of Prime Minister Burhanuddin Harahap (12 August 1955 to 24 March 1956). Unfortunately, the fate of this committee of inquiry and its results are unclear.
During the New Order period, the House of Representatives also used the right of inquiry several times in relation to the Pertamina case. However, efforts to shake the New Order government failed and were rejected by a plenary session of the House. The New Order government was strong enough to prevent the use of the right of inquiry which had been initiated by Santoso Danuseputro (PDI) and HM Syarakwie Basri (FPP).
In the Reformasi (reform) era, the right of inquiry has also been used. However, all the targets of the right of inquiry have been the government and this is consistent with the legislation.
Legislation on the People’s Consultative Assembly (MPR), House of Representatives (DPR), Regional Representatives Council (DPD) and regional legislative assemblies (DPRD) regulates the right of inquiry. Article 79 concerning the Rights of the House of Representatives provides among other things that the House of Representatives possesses the right of inquiry. The right of inquiry is the right of the House of Representatives to investigate the implementation of a law and/or government policy which is related to important, strategic matters and has a broad impact on the life of the community, nation and state which allegedly conflicts with the law. The legislation also provides that an inquiry committee has to be joined by all House of Representatives factions.
From a legality standpoint, the House of Representatives Inquiry Committee for the Commission also does not satisfy the aspect of legality. Historically, the right of inquiry was given to the House of Representatives to investigate government policies which are in conflict with the law. Whether it was the New Order government or post-Reform governments, it has only been the current 2014-2019 House of Representatives which has innovated by using the right of inquiry for a national commission named the Corruption Eradication Commission. The Commission is not the government. The Commission is a law enforcement agency.
The law also requires that an inquiry committee draw members from all factions in the House of Representatives. Thus, when the Democrat Party (DP) House faction, the Prosperous Justice Party (PKS) House faction, and the National Awakening Party (PKB) House faction did not send any representatives, the jurisdictional legitimacy of the Inquiry Committee became problematic.
Members of the public in the Healthy Indonesia Movement unfurled posters and banners in front of the offices of the Corruption Eradication Commission in Jakarta on Thursday (15/6). Consisting of writers, artists and anti-corruption activists, the crowd stated that they rejected the inquiry being rolled out by the House of Representatives.
From the political perspective, those who initiated the use of the right of inquiry are overwhelmingly from the parties which support the government. There are the Indonesian Democratic Party of Struggle (PDIP) House faction which is the main supporter of the government of President Joko Widodo together with the National Democratic Party (Nasdem) and the People’s Conscience Party (Partai Hanura). This coalition of government supporters is actually the group which has been keen to propose the use of the House right of inquiry.
Then there is President Jokowi. He has been placed in the position of a hostage by party officials of his own PDIP. President Jokowi has said he can not interfere in the affairs of the House of Representatives because an inquiry is the business of the House. President Jokowi hopes only that the Commission is still strengthened.
President Jokowi’s attitude towards the Commission feels different this time. When there was conflict between the Corruption Eradication Commission and Indonesia’s National Police, and the public supported the Commission, President Jokowi demonstrated a firm political stance in support of the Commission. Likewise, when the Commission investigator Novel Baswedan was to be arrested, President Jokowi called loudly for Novel not to be arrested. However, this time President Jokowi is like a hostage, allowing the Commission to be de-legitimized by a coalition of his own supporters in the House of Representatives.
Will the Corruption Eradication Commission be paralyzed during the term of President Joko Widodo? History will record the answer.
By Adery Ardhan Saputro S.H. (Researcher with the Indonesian Justice Monitoring Community of the University of Indonesia Faculty of Law – MAPPI FHUI), Thursday, 5 February 2015
The chaos occurring now between two Indonesian law enforcement agencies, the Corruption Eradication Commission (Komisi Pemberantasan Korupsi or KPK) and the Indonesian National Police (Polisi Republik Indonesia or POLRI), was triggered by the decision of the Corruption Eradication Commission to declare Police Commissioner General Budi Gunawan a suspect in a corruption investigation. It should be noted as well that Gunawan was also a candidate for promotion to national police chief, announced by President Joko Widodo and approved by House of Representative Commission III. Several days later officers of the Indonesian National Police declared Corruption Eradication Commission Deputy Head Bambang Widjojanto a suspect in a criminal investigation in relation to allegations he had obtained false statements from a witness, in breach of Articles 242 and 55 of the Indonesian Criminal Code, during a Constitutional Court case. The case concerned the disputed election for District Head of West Kotawaringin Regency in Central Kalimantan Province in 2010.
Upon the arrest of Widjojanto, anti-corruption activists and members of the public reacted strongly, flocking to the Corruption Eradication Commission’s offices and protesting strongly over the police action, widely regarded as an arbitrary abuse of power. The storm of protest and controversy has even destabilized the country, evidenced by the statement of head of the Indonesian Armed Forces’ public relations unit Major General Fuad Basya that, “the military is ready to secure the Corruption Eradication Commission’s offices in the event the Police decide to raid the Commission.” President Joko Widodo on the other hand has not taken any meaningful action, afraid of appearing to intervene improperly in a law enforcement issue.
Friction between two investigative agencies is common in other countries. In the United States for example, a dust up over the authority to investigate narcotics cases between the Federal Bureau of Investigation (FBI) and the Drug Enforcement Administration (DEA) has broken out on a number of occasions. However, this friction doesn’t cause such serious problems because hierarchically both agencies are directly under the authority of the US Attorney General. The Attorney General in fact has a critical role and is vital to the criminal justice system. A situation such as the controversy now being referred to in Indonesia as “KPK vs POLRI” would not be possible in the United States.
Position and Duties of the Attorney General in Indonesia’s Code of Criminal Procedure
If we reflect on the situation in Indonesia, even though the Attorney General’s Office is generally seen as holding the position of dominus litis, in this controversy it has not taken any meaningful steps to act as intermediary in the fracas. This is clear from the statement of the head of the Attorney General’s public information office Tony Spontana that, “We are guided solely by the Code of Criminal Procedure and we don’t want to be drawn into the polemic. The Attorney General’s Office is currently preparing to issue a direction appointing an investigating prosecutor to be assigned to monitor developments in the investigation.”
From Spontana’s statement we can draw a number of conclusions. 1. The Attorney General’s Office can only monitor and issue directions in relation to the result of an examination of a case file prepared by the Police. 2. The Code of Criminal Procedure prohibits the Attorney General’s Office from becoming directly involved in an investigation conducted by the Police. 3. The relationship between the police as investigator and the Attorney General’s Office according to the Code of Criminal Procedure is limited to functional coordination only. In the light of this, based solely on the Code of Criminal Procedure, Spontana’s argument can be regarded as appropriate, which is to say the authority of the Attorney General’s Office is limited to only monitoring a police investigation and does not extend to the supervision of a police investigation into a case. This is because the principle of functional differentiation on which the Code of Criminal Procedure is founded is the root cause of the problem of frequent friction between the two investigative agencies.
In relation to the police case against KPK Commissioner Bambang Widjojanto, the principle of functional differentiation will lead to significant problems in the future especially for the institution of the Attorney General’s Office. The institution of an attorney general which investigates solely on the basis of case files alone without being permitted to conduct investigations directly can create obstacles to the presentation of evidence during court hearings. Assuming the case file for the Bambang Widjojanto investigation is regarded as complete by the Attorney General’s Office, the Attorney General’s Office would issue a P-21 Form on the basis of evidence obtained during the investigation. Later at the trial phase, should it become known that in fact some of the items of evidence were obtained other than in accordance with the law, or even, that a certain number of witness statements provided to investigators had been coerced, this could have the implication that the provision of evidence by the prosecution was less than optimal with a reduction in the evidence available for use by the public prosecutor to prove the guilt of the accused.
So there is a need for a strong connection between public prosecutors and cases being brought against accused persons which is not simply limited to an examination of case files, or merely to the provision of guidance to investigators. Rather, prosecutors should be able to conduct investigations directly (opsporing) or at least be able to conduct follow-up investigations (nasporing) in relation to enquiries already undertaken by investigators. The aim of this would be for prosecutors to be able to establish how investigators obtained evidence in a case and at the same time to establishing whether a suspect really was a party worth taking to trial.
In contrast, the position and duties of the Attorney General’s Office as dominus litis is in fact very clear in the provisions of the Revised Indonesian Code (Herziene Indonesisch Reglement or HIR). While the HIR remained in force, an investigation was an inseparable part of a prosecution. This authority establishes the Prosecuting Investigator as public prosecutor to be both the coordinator of an investigation and also as having the ability to conduct its own investigations. As a result, the Attorney General’s Office was in the position of a key institution in the overall process of criminal law enforcement from beginning to end.
With the repeal of the HIR by the Code of Criminal Procedure, the authority of the Attorney General’s Office to conduct investigations (opsporing) has been de-legitimised indirectly by the Code. However, the authority of the Attorney General’s Office as dominus litis did not disappear immediately with the repeal of the HIR. This is because of Article 27, paragraph (1), subparagraph (d) of Law No. 5/1991 concerning the Attorney General’s Office which provides that: “(1) In the area of crime, the attorney general’s office has the task of and authority to: (d) complete a particular case file and for this supplementary inquiries can be conducted before being transferred to the court which in their conduct are coordinated by the investigator.”
This provision clearly affirms that the attorney general has the authority to conduct additional investigations (nasporing). This authority affirms that the attorney general continues to constitute the agency in control of a case even at the investigation stage. This is also provided for by Article 30 paragraph (1), subparagraph (d) of Law 16/2004 concerning the Indonesian Attorney General. So the attorney general does in fact have the authority to carry out additional enquiries (nasporing) and as a result, the attorney general has the authority to ensure that investigations carried out by investigators have been conducted properly.
Thus although the Criminal Procedure Code appears to provide for the attorney general having a merely functional coordinating role in investigations which are to be conducted by the police, in fact if one relies on Article 30, paragraph (1), subparagraph (d) of Law No. 16/2004, in fact the Attorney General is able to take action beyond that of merely monitoring the results of police investigations or examining case files based on witness testimony alone. Quite the contrary, the Attorney General’s Office may take a more important role in the process of the inquiry into the case of Commissioner Bambang Widjojanto by way of additional inquiries into the relevant witnesses or suspects.
Quite apart from the attorney general being able to conduct additional inquiries, the writer is of the view that there are still problems in our criminal justice system. This is illustrated by the possibility of conflict between law enforcement agencies in dealing with an investigation. The current dispute indicates that the differentiation and the independence of each law enforcement agency in handling cases represents a conceptual mistake. Because of this there is a need for change in the criminal justice system in Indonesia to minimize friction between law enforcement institutions.
Integrated Criminal Justice System Reform
Change in the roles and duties of the Attorney General’s Office has in fact been accommodated by the proposed Criminal Procedure Code Bill. This is evident from the provisions of Article 46, paragraph (3) and (4).
Article 46 paragraph (3): If the public prosecutor still finds deficiencies in relation to a case file, the public prosecutor may ask the investigator to conduct additional investigations by giving instructions directly or can conduct additional inquiries prior to transferring to the court the implementation of which is coordinated with the investigator.
Article 46 paragraph (4): In subsequent case inquiries if necessary certain legal action to facilitate the conduct of hearings in court or the execution of judicial decisions, the public prosecutor can take legal action himself or ask for investigation assistance to be conducted.
These two articles affirm that the public prosecutor represents the party in control of a case at the investigation stage, even though the case is conducted by a different agency. The writer would add that despite the expanded authority of the attorney general in coordinating investigations, the Bill is not yet able to make the position of the attorney general into that of mediator in the event that the problem of sectoral egos arises between law enforcement agencies in the conduct of a case.
In relation to this problem, solutions can be suggested from the example of criminal justice systems in other countries. Examples include: 1. Coordination between police and prosecutors in the Netherlands is provided for by the Wet Bijzondere opsporingsbevoegd-heden, the Special Powers of Investigation Act or BOB, which came into force on 1 February 2000. This provides that the public prosecutor’s office is the appropriate agency to lead a criminal investigation. 2. Changing the hierarchy and position of the attorney general in Indonesia to be like that in the United States. By positioning the attorney general to be at the same time the Minister of Justice representing the highest agency in control of a case and the use of one investigation warrant (Surat Perintah Pemeriksaan or SPP).
Hopefully the case between the Corruption Eradication Commission and the Indonesian National Police will create momentum for improvement in the criminal justice system in Indonesia. At the same time hopefully it will be a forum that demonstrates the role of the Indonesian Attorney General as the dominus litis agency which is in control of criminal cases. Finally it is to be hoped that reform of the criminal justice system and the future operation of the criminal justice system will be based solely on legal perspectives without being influenced by considerations of a political nature.
KITLV / Amnesty International Seminar
‘The Politics of Islam in Indonesia: Jakarta elections and beyond’, By Sidney Jones & Chris Chaplin
Is conservative Islam gaining ground in Indonesia? The gubernatorial elections in Jakarta have convinced many that the political clout of Islamic organizations has grown. Demands that the incumbent Basuki Tjahaja Purnama – a Christian of ethnic Hakka Chinese descent better known as Ahok – be convicted of blasphemy have been front and centre of efforts to diminish his electoral popularity. Furthermore, mass demonstrations by Islamic conservatives against the governor have dwarfed policy debates between the gubernatorial candidates.
As Amnesty International have reported, the charge of blasphemy has become increasingly common, with an estimated 106 convictions for blasphemy between 2005 and 2014, compared to approximately 10 during the 33 years of Suharto’s New Order. These developments suggest that religion is increasingly politicised in a country known for its moderate version of Islam.
Yet, not everything is as it seems. During the first round of the elections, Ahok still managed to eke out a small victory. Furthermore, Islamic identity may have played a crucial role in mobilising demonstrators, but the size and success of the rallies was in no small part due to established support networks between Islamic conservatives and politicians who wished to usurp the popular governor.
Accordingly, this talk discusses the ramifications of sectarian mobilisation, debating the wider implications of the Jakarta elections for the agenda of Islamic advocates and their ability to utilise religious and ethnic identity for political purpose. Sidney Jones, a prominent expert on Islam and terrorism in Indonesia will discuss these issues together with Chris Chaplin, a postdoctoral researcher at KITLV.
Sidney Jones: Director, Institute for Policy Analysis of Conflict, Jakarta, Indonesia. From 2002 to 2013, Jones worked with the International Crisis Group, first as Southeast Asia project director, then from 2007 as senior adviser to the Asia program. Before joining Crisis Group, she worked for the Ford Foundation in Jakarta and New York (1977-84); Amnesty International in London as the Indonesia-Philippines-Pacific researcher (1985-88); and Human Rights Watch in New York as the Asia director (1989-2002). She holds a B.A. and M.A. from the University of Pennsylvania. She lived in Shiraz, Iran for one year as a university student, 1971-72, and studied Arabic in Cairo and Tunisia. She received an honorary doctorate in 2006 from the New School in New York.
Chris Chaplin: Researcher, KITLV / Royal Netherlands Institute of Southeast Asian and Caribbean Studies. Chris is a postdoctoral researcher at the KITLV, where he is investigating the influence of conservative Islamic movements on ideas of citizenship and civic activism within Indonesian society, specifically focusing on Islamic activism within South Sulawesi. Prior to joining the KITLV, he completed his PhD at the University of Cambridge concerning Salafi piety and mobilisation in Java. Chris has also spent seven years living in Indonesia, researching and consulting for a number of international development institutions and human rights NGOs on issues of village development, elections, and security sector reform. He has been fortunate enough to have spent extensive time living in Java, Sulawesi and West Papua.
Date: Thursday 9 March 2017, Time: 15.30 h – 17.00 h, Venue: Lecture Hall 02, Mathias Vrieshof 2, Leiden University, If you wish to attend please register with Yayah Siegers: firstname.lastname@example.org
“Human rights group ‘LBH Jakarta’ reported that the Jakarta city government destroyed 113 homes in 2015 and planned to destroy 325 more in 2016. At least 70% of the homes were demolished with no consultation or settlement.
Today many of the homes threatened with demolition have been razed. The excuse is always the same: law and order and urban normalization (green open space, weirs or river management) in the interests of a better life.
“Jakarta Unfair” sets out to test the theory of the Jakarta city government that life is better after your home has been demolished.”
From WatchDoc Documentary, Jakarta
By Luky Djan (Executive Director, Institute for Strategic Initiatives (ISI) and jury member for the 2013 Bung Hatta Anti-Corruption Award)
The endeavor to eradicate corruption will always travel a rocky road. Indeed it is necessary for anyone acting against corruption to face off directly against criminals working together in an organized group. Criminal corruption is almost certain to be perpetrated as a conspiracy jointly in conjunction with others and in a way that is highly organized. Organized criminal corruption has a stronger staying power than other forms of organized crime because the group of perpetrators involved typically occupy positions of formal authority and inevitably command considerable resources.
For this reason, anyone going up against so called “uniformed criminals” must steel him- or herself with both ingenuity and resilience. He or she must also not be surprised at the range of strategies deployed to weaken the agenda and institutions endeavoring to eradicate corruption which will vary from the intervention of those in power to the use of physical violence.
Is the anti-corruption agenda in this country driving towards a yellow light? Indonesia’s Corruption Eradication Commission (Komisi Pemberantasan Korupsi or KPK) is the front line vanguard and driving force in the fight against corruption and is once again now facing strong headwinds. The institution has weathered past tests successfully. Hopefully the current crisis will likewise result in the strengthening of efforts to defeat corruption. The experience of South Korea and Thailand can provide lessons in the conditions under which institutions are tamed and those under which anti-corruption efforts are successful. The fate of anti-corruption bodies in these places is quite tragic.
Thailand’s National Counter-Corruption Commission (NCCC) and the Korean Independent Commission Against Corruption (KICAC)
Prospects for the fight against corruption in Asia are currently entering their twilight years. Anti-corruption institutions are collapsing. The anti-corruption agenda in South Korea commenced when the leader of the opposition to the military regime Kim Dae Jung became President in February 1998. Kim’s main strategy was spearheaded by an initiative to pass legislation establishing an anti-corruption commission in August 1999. Kim’s idea produced resistance from politicians and legislators with the result that anti-corruption legislation took two years to produce, passing finally on 24 July 2001. Following the enactment of this legislation, opposition emerged to the establishment of an anti-corruption commission from the public prosecutor’s office as well as the police. The Korean Independent Commission Against Corruption (KICAC) was finally formed six months later in January 2002.
The breakthrough of the KICAC shook the corrupt relations between those in power and the chaebol business conglomerates and caught in its wake senior government officials and businessmen. The breakthrough began to unsettle the corrupt even though the KICAC was in fact not as powerful as its other Asian counterparts such as Hong Kong’s Independent Commission Against Corruption, Thailand’s NCCC or Indonesia’s KPK because the KICAC was not given investigation or prosecution functions. Efforts to shake the KICAC gained momentum after the 25 February 2008 when the government changed, following two periods of progressive leadership under Kim Dae-jung and Roh Moo-hyun, to the conservative government of President Lee Myung-bak.
After only three days in office, on 29 February 2008, President Lee merged the KICAC with two other institutions, the Ombudsman and the Administrative Appeals Tribunal, an administrative decisions court like Indonesia’s Public Administration Court (Pengadilan Tata Usaha Negara or PTUN), to form the Anti-Corruption Civil Rights Commission (ACRC). The sway of the KICAC declined, with the new body becoming more of a think tank with the primary function of preventing corruption. The major reason for the reduction in the power of the KICAC was the view that its breakthroughs in this period hampered economic growth. President Lee’s background as an executive of one of the chaebol conglomerates meant he viewed the fight against corruption as a hindrance to economic growth.
Of course the public reacted and opposed the merger. Transparency International Korea Chairman Geo-Sung Kim believes that economic growth is driven by a clean business environment and that an organization like the KICAC is necessary to achieve this. While ACRC commissioners are selected by and responsible to the president, KICAC commissioners were selected by the Supreme Court, legislature and president. There are now valid concerns over the ACRC’s loss of independence.
In Thailand following the establishment of the People’s Constitution in 1997, the National Counter Corruption Commission (NCCC) was formed in November 1999. This agency represented a strengthening of the previous anti-corruption institution, the Counter Corruption Commission or CCC, which had possessed limited functions and been less independent. The NCCC was responsible to the Senate and its nine commissioners were nominated by the Thai Senate and confirmed by the King. The NCCC took direct action by revealing the embezzlement of assets by Deputy Prime Minister Sanan Kachornprasart which led to his resignation. Two months later the NCCC uncovered a 30 million baht bribery scandal which led to the dismissal of Deputy Finance Minister Nibhat Bhukkanasut.
The NCCC’s next target was a tax evasion scandal and dishonesty in the public wealth declaration filed by Prime Minister Thaksin Shinawatra. This case put Thaksin’s political career at stake. However, after the legislative elections in 2001, which handed control of the Senate to Thai Rak Thai, Thaksin soon gained control of the Supreme Court, leading to the asset embezzlement case being frozen. As payback, allegations were made against the nine NCCC commissioners alleging criminal conduct and accusations of involvement in a conflict of interests by increasing their monthly salary of 45,000 baht (approximately Rp25 million). The ensuing investigation eventually forced the commissioners to resign in May 2005.
Having control of the majority in parliament, Thaksin had no difficulty installing ‘puppet commissioners’ (Pasuk and Baker, 2004). Following a power shift in a military coup, the military junta replaced the NCCC on 15 July 2008 with the National Anti-Corruption Commission (NACC). The NACC became an instrument for the removal of political opponents of the Thai military regime.
Every leader possesses a legacy which becomes a monument to his or her success. President Sukarno created magnificent landmark sites ranging from Gelora Bung Karno Stadium (GBK) to Istiqlal Mosque and the statues which adorn the capital. Times, however, change and monuments today no longer take the form of urban architectural landmarks. On the contrary they now represent elements of constitutional architecture. President Habibie left monuments in the form of the rights of freedom of assembly and association, multi-party elections, freedom of the press and regional autonomy. President Abdurrahman Wahid reorganized the function and position of the Indonesian Armed Forces, respect for pluralism and human rights.
Megawati carved out important milestones in the nation’s efforts against corruption. Probably not many people remember that on 27 December 2002 Megawati signed into force Law No. 30/2002 concerning the Corruption Eradication Commission. This institution represented the spearhead and hope of the nation for the elimination of the misuse of power in the form of looting public resources by organized criminal groups who possess political power and financial strength.
So the commitment of President Megawati to try to remove all forms of criminal corruption could not be doubted. A year later the Corruption Eradication Commission was officially established. This writer’s experience ranges from the drafting of the Commission bill to the establishment of the Commission itself which was at the time appropriately resourced by the government. If the commitment to the eradication of corruption had not been strong it would have been simple to abort the drafting of the bill or to stall for time over the establishment of the Commission. Likewise, when on a number of occasions the Commission investigated cases of corruption involving senior politicians from her Indonesian Democratic Party of Struggle (PDIP), Megawati did not intervene in the Commission.
Unfortunately, in the middle of the Commission’s efforts to strengthen measures aimed at combating corruption, a wave of attacks have emerged from all directions, including the PDIP. Reports by a member of the House of Representatives related to legal action launched over the disputed election of the head of West Kotawaringin Regency have resulted in a storm of crisis over the very existence of the institution of the Commission and the entire effort to combat corruption. This writer believes these reports have destabilized the Commission because they have led to an institutional crisis as a result of a Commissioner of the anti-corruption agency being named as a suspect in a criminal investigation.
It is regrettable that this has happened because as noted above President Megawati both as head of state while in power and today as party chairwomen has not taken action to weaken the Commission. As a mother Megawati fully understands that the Corruption Eradication Commission is a child of her government to oppose the phantom of corruption that has taken root and become entrenched.
The experience of South Korea and Thailand show that anti-corruption commissions will be stunted and even amputated by subsequent regimes. President Jokowi himself has a real track record in promoting an anti-corruption agenda. He is a recipient of the Bung Hatta Anti-Corruption Award (BHACA) which clearly demonstrates he possesses a strong commitment to the eradication of corruption. The current crisis should be resolved with prudence and expedition. Now the community is waiting for action from President Jokowi as “party official” to strengthen both efforts to eradicate corruption and the Commission, an institution which is an important legacy of Megawati’s.
Published in Kompas daily, Thursday 29 January 2015 (Retrieved from http://youthproactive.com/expert-says/megawati-dan-kpk/ Accessed 8 April 2015.)