A fresh start from a corrupt past

This is the second of two articles on dealing with corruption by Bertrand de Speville, Consultants Project Director at the Jakarta-based Project for the establishment of an anti-corruption body for Indonesia. He is a former commissioner of the Hong Kong Independent Commission Against Corruption.

JAKARTA (JP): The earlier article set out the reasons why dealing with corruption of the past affects the chances of success of a national initiative against corruption and listed the policy options available.

The options are now considered in turn. 1. Drawing a line under the past: Making a fresh start by declaring that matters occurring before a certain date will not be investigated requires a legal provision to that effect.

The date it takes effect should be when the new law comes into force or when the authority becomes operational if the moral and pragmatic justifications referred to earlier are to apply.

If conduct occurring before a certain date is not to be investigated, should the anti-corruption authority nevertheless be allowed to investigate a matter so serious that it cannot be overlooked, regardless of when it occurred?

Should certain extremely serious conduct be investigated no matter when it took place? If so, how is it to be determined whether the conduct is sufficiently serious? Presumably, investigations already started would continue, or at any rate those investigations where the suspect had been interviewed or had fled the jurisdiction.

If there is to be such an exception to the amnesty, what would be needed is a mechanism for deciding whether a matter that occurred before the operative date is so serious that it must be investigated.

This too is a delicate matter, but a few parameters can be stated. First, the person or persons making the decision must command public trust. Second, the decision must be made well away from the anti-corruption authority itself.

The decision could be seen to have strong political overtones from which the authority should be kept at a safe distance. Third, the decision must be treated as final.

The mechanism for making that determination would have to be such as to reassure the public that the decision was being properly taken by people it could trust.

It could be a small committee of three prominent persons of integrity. They could be selected perhaps from a group comprising, for example, the head of the judiciary, the leader of the legislature, the controller and auditor of public expenditure, a religious leader and a leader from the private sector or civil society.

The function of the committee would be to certify that an alleged or suspected corruption offense was or was not sufficiently serious to warrant action being taken under the prevention of corruption law.

The allegation would be put before the committee by the head of the anti-corruption authority where he felt that it might fall within this exception to the amnesty. He would then act in accordance with its decision - either investigate the matter or close the file.

Such an exception allows very serious matters to be investigated and helps to make the notion of amnesty a little more palatable. 2. Public admission of corrupt conduct. A process of "truth and reconciliation" would require a public admission in exchange for immunity from prosecution. Anything less than immunity would be unlikely to attract an admission.

There are difficulties with this option. While a truth and reconciliation process has value in cases of human rights abuse, the notion of reconciliation sits strangely in corruption cases where there are usually no identifiable victims of the offense with whom to be reconciled.

Furthermore, public forgiveness without restitution of the proceeds of the corruption would probably be unacceptable to the community. But it is equally improbable that the corrupt would be prepared to surrender their gains.

They are more likely to believe that there will continue to be minimal risk of being effectively investigated and prosecuted. For these reasons this option is unlikely to succeed. 3. Restricting the use of investigative powers. This option would require a legal provision allowing the powers to be used to investigate matters occurring only after a certain date, that date being presumably the date the law comes into force.

The difficulty with this option is the ambivalence of its moral stance. The public will be unable to see why the powers can be used in some cases but not in others. That will lead to public mistrust and loss of confidence. 4. Doing nothing. This option has the merit of avoiding a difficult decision that carries considerable political risk. The question is whether that risk is outweighed by the risk of the anti-corruption initiative failing through the withdrawal of political will or the overwhelming practical effect of the past.

People need to be given time to consider the dilemma if they are to accept the notion of an amnesty for offenses under the anti-corruption laws.

If the first option is to be adopted, it would be imperative that the ground be carefully prepared. The fight against corruption cannot be won without the support of the public. If its support is to be retained, people need to understand the reasons why an amnesty is necessary to enable the country to break out of its web of corruption.

They would also need to understand the consequences of not proceeding as proposed. And if it is true that people of all walks of life and of all ranks of society have been tainted by the corruption of the past, the realization than the amnesty would apply to people of every rank and occupation would be salutary.

Informed public discussion of this difficult, delicate question before any decision on the matter is made by the leadership of the country is essential.