Page 2 of
2 Reversing Indonesia's
anti-corruption drive By Fabio
Scarpello
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.
Fabio Scarpello is
AdnKronos International's Southeast Asia bureau
chief.
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