Zero tolerance on corruption Hery Firmansyah and Adam James Fenton  ;   Hery Firmansyah lectures in criminal law at UGM in Yogyakarta; Adam James Fenton is researching for his PhD at Charles Darwin University

JAKARTA POST,  11 Januari 2015

                                                                                                                       

The latest commemorations of International Anti-corruption Day on Dec. 9, 2014 were particularly rousing in Yogyakarta, where events were centered around the city’s oldest and most famous tertiary institution, Gadjah Mada University (UGM) and attended by President Joko “Jokowi” Widodo. Also of note, on the day, prosecution authorities announced the arrest of almost 100 individuals suspected of corruption. Efforts to eradicate corruption are at a critical stage. Few areas of government are free of corruption. Bureaucrats, members of various parliaments, even judges who have passed judgment on those accused of corruption — all have, at one time or another, sat in the accused’s chair. Many large-scale corruption cases remain unresolved. Legalities relating to the Bank Century case show no sign of ending. The direction of anticorruption cases is becoming less clear, perhaps because the main aim is no longer known. In fact, corruption cases will become even more complex if, for example, we consider issues relating to the seizure and return of assets that are stored overseas. Graft convicts Muhammad Nazaruddin, a former Democratic Party treasurer, former taxman Gayus Tambunan and even the brother of the jailed Banten Governor, Tubagus Chaeri Wardana, are suspected of having illegal assets overseas. Countries that act as safe havens for criminal assets are increasing — enticed by the funds made available by large-scale corruptors. It is widely accepted that the material reward of crime is a major factor that continues to motivate individuals to commit crime. Many people question why corrupt officials are not deterred from their corrupt practices and why they do not stop stealing the national wealth. Rationality suggests that a criminal will take the time to stop and consider the legal consequences of their actions and that the threat of criminal punishment should deter them. Most criminals will continue in their course of action, where they believe that the chances of being caught, or the gravity of the consequences, are small. Another factor that will encourage corrupt practices is when corrupt persons believe that assets they receive through corruption can be stored safely for their future needs. Therefore, it is important that anticorruption enforcement efforts focus not only on catching suspects but also on seizing and returning the assets and funds that were stolen. So far, authorities have focused on Australia, Hong Kong and Singapore as target destinations for corrupt assets. However, we should not ignore the possibility that countries like the US, UK and others, could be used for secret deposits of illegal assets. Anticorruption enforcement should not focus on creating more institutions for handling corruption. Rather, it should focus on creating better coordination, cooperation and effectiveness in the institutions that currently exist. If we are not satisfied with the performance of prosecutors and police as investigators, we should look at improving those institutions rather than falling into the trap of creating more legal institutions or structures. Eradicating corruption is not possible solely through the creation of laws, because the enforcers of the laws are, themselves, human. Only humans, and their actions, can determine the effectiveness of existing laws. The transition from abstract laws to enforcement of the laws through concrete actions is not always a smooth one. There are at least three stages in the process that must be perfected — a process known as “concretization” of the criminal law. That is: first, the creation of laws in abstracto by the legislature, as a formulation of the law. Second, the in concreto enforcement of laws by enforcement agencies from the police to the courts. And third, the in concreto enforcement of laws in the form of correctional actions, that is the administrative execution of the outcomes of the judicial process. The point is that the enforcement of anticorruption laws will not function properly if one of the stages of concretization is not working effectively. Therefore, as citizens who oppose corruption, we are obliged to ensure that anticorruption efforts are not disturbed. You, I and everyone may proudly say that there should be zero tolerance for corruption. ●