Continuing the fight against corruption (Part 2 0f 2)

Continuing the fight against corruption (Part 2 0f 2) Fritz Siregar  ;   The writer, a former judicial associate to the Constitutional Court, is currently completing his PhD at the University of New South Wales in Sydney, Australia

JAKARTA POST, 16 September 2014

                                                                                                                       

                                                      

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. ●