Corruption busting and law reform<\/p>\n
By Donna K. Woodward<\/p>\n
MEDAN, North Sumatra (JP): President Abdurrahman Wahid's
\npledge to cleanse the bureaucracy of poisonous corruption seems
\nsincere, concrete, and beyond intimidation. His administration
\nbegan with a call for public officials to declare their wealth at
\nthe beginning and again at the end of their terms of service. A
\nstatement of assets is a constructive start. But as Coordinating
\nMinister for Economy, Finance and Industry Kwik Kian Gie recently
\nsaid, in itself this is not sufficient.<\/p>\n
A glance back at former president Soeharto's current bank
\naccounts proves how easy it is for a corrupt person in
\nIndonesia's current legal environment to hide assets wrongfully
\nacquired. As we know from the Marcos case, in a democracy it is
\nimpossible for a government to prevent all hiding of assets.
\nExperts have explained the circuitous paths that ownership
\nrecords can travel, so that the real owners of property are well
\nhidden behind a paper wall of paper owners -- family members,
\nattorneys, dummy corporations. There are ways to discourage the
\nhiding of assets. However, these disincentives are generally
\nrelated to a country's tax and property registration and transfer
\nlaws, which in Indonesia still need revision.<\/p>\n
There are other innovations that can help control corruption.
\nA clear code of conduct for government officials. Sure
\nenforcement of the code. A national consciousness-raising
\ncampaign, explaining corruption, collusion and nepotism (KKN) and
\nthe new laws in terms that the public will understand. A Whistle-
\nBlower law, to protect those who in good faith report suspected
\ncorruption from retaliation. Finally, a network of special
\ncenters where corruption reports can be lodged, staffed by
\npersons who will work competently, fairly, fearlessly.<\/p>\n
But all these measures are predicated on the existence of
\nclear, comprehensive laws. A well-crafted anticorruption law is
\nneeded so that future Soehartos and their cronies will not escape
\nresponsibility for abuse of power as the current Soeharto Group
\nso far has. What should an effective anticorruption law include?
\nLawmaking begins with a statement of the legislative history and
\nobjectives of the proposed law. Statutes relating to corruption
\nare intended, obviously, to prevent corrupt practices.<\/p>\n
To accomplish this an anticorruption law needs to define
\nclearly the prohibited conduct; to determine how allegations
\nshould be reported and how investigations will be conducted; to
\nset procedural safeguards for fair investigations and standards
\nof proof and rules of evidence for trial; to decide the
\njurisdictional parameters for investigations and prosecutions.<\/p>\n
Finally, an effective statutory scheme needs to incorporate
\nexplicit legal sanctions. Unless the new anticorruption law
\naddresses all these elements, the result will be a law with
\nloopholes big enough for a corrupt official to drive a fleet of
\nillegally imported luxury vehicles through, in broad daylight.<\/p>\n
But as the Nov. 22 editorial of this paper highlighted, to
\ncombat corruption more than an anticorruption law is needed. For
\na successful anticorruption program, all inadequate laws need to
\nbe replaced, so that opportunities to misuse loopholed laws are
\neliminated.<\/p>\n
Following is a simple illustration of how poorly written laws
\ninvite corruption. There is a Ministry of Manpower rule that
\nrequires companies to complete certain reports. But there is no
\ndeadline for filing these reports. And there seems to be no
\nstatutory penalty for failure to complete the reports, at least
\nnone that officials are able to cite or produce. The statutory
\ngaps give resourceful officials opportunities to introduce
\nrequirements of their own and then to exercise discretionary
\nenforcement of these new rules in exchange for special
\nadministrative fees. Requirements are created and fees set before
\nour very eyes. The point: currently Indonesia has some statutes
\nthat do not meet the tests of effective legislation.<\/p>\n
Lawmakers of the Soeharto era did not always draft laws
\ncarefully; there was little need for such care under Soeharto's
\ntotalitarian system. Indeed it is as if Soeharto consciously
\ndesigned a flawed bureaucracy predicated on the evil twins of
\nsubstandard salaries and corruption, just to trap the civil
\nservice and military in a permanent web of institutionalized
\ndependence.<\/p>\n
Flexibility is a virtue in a bureaucracy. But the statutory
\nloopholes that opened the door to the ad-hoc rulemaking that now
\npervades the Indonesian bureaucracy and allows endemic corruption
\nto survive, these need prompt attention.<\/p>\n
The legal system as a whole needs to be overhauled. Who will
\ndraft the reform laws? Who will pay attention to the little
\ndetails that make the difference? Though there are many veteran
\nlawmakers in the House of Representatives, after years of
\nfunctioning as Soeharto's rubber stamps, and facing an inherited
\nbody of source law in a language now foreign to most, the House
\nno longer has the technical skills to rebuild the legal system.<\/p>\n
The President has now proposed a National Commission on Law
\nwhich will have this expertise. If the House members who must
\nenact laws will welcome with openness the role of the new
\ncommission for drafting laws, the House might redeem itself as an
\ninstrument for shaping Indonesia's character as a nation of laws,
\nnot personalities.<\/p>\n
The writer, an attorney and former American diplomat at the
\nU.S. Consulate General in Medan, is president director of PT Far
\nHorizons.<\/p>",
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