A fresh start from a corrupt past<\/p>\n
This is the second of two articles on dealing with corruption
\nby Bertrand de Speville, Consultants Project Director at the
\nJakarta-based Project for the establishment of an anti-corruption
\nbody for Indonesia. He is a former commissioner of the Hong Kong
\nIndependent Commission Against Corruption.<\/p>\n
JAKARTA (JP): The earlier article set out the reasons why
\ndealing with corruption of the past affects the chances of
\nsuccess of a national initiative against corruption and listed
\nthe policy options available.<\/p>\n
The options are now considered in turn.
\n1. Drawing a line under the past: Making a fresh start by
\ndeclaring that matters occurring before a certain date will not
\nbe investigated requires a legal provision to that effect.<\/p>\n
The date it takes effect should be when the new law comes into
\nforce or when the authority becomes operational if the moral and
\npragmatic justifications referred to earlier are to apply.<\/p>\n
If conduct occurring before a certain date is not to be
\ninvestigated, should the anti-corruption authority nevertheless
\nbe allowed to investigate a matter so serious that it cannot be
\noverlooked, regardless of when it occurred?<\/p>\n
Should certain extremely serious conduct be investigated no
\nmatter when it took place? If so, how is it to be determined
\nwhether the conduct is sufficiently serious? Presumably,
\ninvestigations already started would continue, or at any rate
\nthose investigations where the suspect had been interviewed or
\nhad fled the jurisdiction.<\/p>\n
If there is to be such an exception to the amnesty, what would
\nbe needed is a mechanism for deciding whether a matter that
\noccurred before the operative date is so serious that it must be
\ninvestigated.<\/p>\n
This too is a delicate matter, but a few parameters can be
\nstated. First, the person or persons making the decision must
\ncommand public trust. Second, the decision must be made well away
\nfrom the anti-corruption authority itself.<\/p>\n
The decision could be seen to have strong political overtones
\nfrom which the authority should be kept at a safe distance.
\nThird, the decision must be treated as final.<\/p>\n
The mechanism for making that determination would have to be
\nsuch as to reassure the public that the decision was being
\nproperly taken by people it could trust.<\/p>\n
It could be a small committee of three prominent persons of
\nintegrity. They could be selected perhaps from a group
\ncomprising, for example, the head of the judiciary, the leader of
\nthe legislature, the controller and auditor of public
\nexpenditure, a religious leader and a leader from the private
\nsector or civil society.<\/p>\n
The function of the committee would be to certify that an
\nalleged or suspected corruption offense was or was not
\nsufficiently serious to warrant action being taken under the
\nprevention of corruption law.<\/p>\n
The allegation would be put before the committee by the head
\nof the anti-corruption authority where he felt that it might fall
\nwithin this exception to the amnesty. He would then act in
\naccordance with its decision - either investigate the matter or
\nclose the file.<\/p>\n
Such an exception allows very serious matters to be
\ninvestigated and helps to make the notion of amnesty a little
\nmore palatable.
\n2. Public admission of corrupt conduct. A process of \"truth and
\nreconciliation\" would require a public admission in exchange for
\nimmunity from prosecution. Anything less than immunity would be
\nunlikely to attract an admission.<\/p>\n
There are difficulties with this option. While a truth and
\nreconciliation process has value in cases of human rights abuse,
\nthe notion of reconciliation sits strangely in corruption cases
\nwhere there are usually no identifiable victims of the offense
\nwith whom to be reconciled.<\/p>\n
Furthermore, public forgiveness without restitution of the
\nproceeds of the corruption would probably be unacceptable to the
\ncommunity. But it is equally improbable that the corrupt would be
\nprepared to surrender their gains.<\/p>\n
They are more likely to believe that there will continue to be
\nminimal risk of being effectively investigated and prosecuted.
\nFor these reasons this option is unlikely to succeed.
\n3. Restricting the use of investigative powers. This option would
\nrequire a legal provision allowing the powers to be used to
\ninvestigate matters occurring only after a certain date, that
\ndate being presumably the date the law comes into force.<\/p>\n
The difficulty with this option is the ambivalence of its
\nmoral stance. The public will be unable to see why the powers can
\nbe used in some cases but not in others. That will lead to public
\nmistrust and loss of confidence.
\n4. Doing nothing. This option has the merit of avoiding a
\ndifficult decision that carries considerable political risk. The
\nquestion is whether that risk is outweighed by the risk of the
\nanti-corruption initiative failing through the withdrawal of
\npolitical will or the overwhelming practical effect of the past.<\/p>\n
People need to be given time to consider the dilemma if they
\nare to accept the notion of an amnesty for offenses under the
\nanti-corruption laws.<\/p>\n
If the first option is to be adopted, it would be imperative
\nthat the ground be carefully prepared. The fight against
\ncorruption cannot be won without the support of the public. If
\nits support is to be retained, people need to understand the
\nreasons why an amnesty is necessary to enable the country to
\nbreak out of its web of corruption.<\/p>\n
They would also need to understand the consequences of not
\nproceeding as proposed. And if it is true that people of all
\nwalks of life and of all ranks of society have been tainted by
\nthe corruption of the past, the realization than the amnesty
\nwould apply to people of every rank and occupation would be
\nsalutary.<\/p>\n
Informed public discussion of this difficult, delicate
\nquestion before any decision on the matter is made by the
\nleadership of the country is essential.<\/p>",
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