A fresh start from a corrupt past

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.