A new, more effective way to fight against corruption

G.S. Edwin, Contributor, Jakarta

The premise of this road map for fighting corruption is based on the idea that it is not an easy problem to fight because the forces working for corruption are potent, active and in full command.

There are several things that perpetuate corruption. Raising funds for political parties has become synonymous with corruption, because in a democracy where electoral politics play the decisive role, raising funds is unavoidable.

Money is needed both to contest elections and wield power to win. But, unfortunately, due to lax accountability, party funds are easily diverted and abused by individuals in control of party funds to acquire ill-gotten gains, making the booty and its twin, money power, the fruits of corruption, which cannot be checked by political will alone.

The excessive and mindless glorification of money power, a cultural trait, is fuel for corruption. A person driving in a Mercedes car or a high-profile donor automatically commands great respect and awe, as if these are his due. Besides, such persons are considered successful, born to rule, and are fawned over. Hardly anyone bothers to ask how they came to own a Mercedes car or splurge money on high-profile donations.

With corruption in high places, believed to be quite wide- spread and not shaming anyone anymore, voters have become cynical enough to seek gain from corruption, even if it is just the crumbs, like accepting money and petty gifts in exchange for their votes.

Those accused of corruption are tried as criminals under the criminal justice system and are protected by the rule of law, as "life and liberty" are at stake. So, the accused are "presumed innocent until proven guilty" and the onus to "prove guilt beyond a reasonable doubt" is on the prosecution. And the accused are entitled to "benefit of doubt", a generous gateway to get away.

These are formidable hurdles, particularly in a corruption case, where nobody volunteers to give any help to the prosecution for the idealistic reason of "I'm against corruption".

Witnesses are fielded only after heavy persuasion. They are either scared or out to gain some pecuniary advantage as almost all turn hostile in due course, destroying the prosecution case midstream.

The writing on the wall is clear. Like a forest fire, money power has the ferocity to engulf and consume the entire society. And money power, to the extent it arises from ill-gotten gains, can only be destroyed by the state confiscating the ill-gotten gains, whatever the source.

There are three basic requirements for confiscating ill-gotten gains: An enabling law to confiscate the money, the creation of an administrative-cum-judicial court to adjudicate and execute confiscations and a whistle-blower act to provide a safe opportunity to the public to bring to the notice of the court details of wealth illegally amassed by someone known to them.

An illustration will show how simple and straight-forward would be the process of confiscation without harming natural justice.

A whistle-blower brings to the notice of the court that a customs inspector had taken a bribe of US$5,000 while at work. Authorized investigators on that very day confront the inspector with a body check at his place of work when he breaks duty and finds $5,000 on him. This amount is confiscated as prima facie there is no justification why he should have carried $5,000 to his place of work.

However, this confiscation need not seem arbitrary or high- handed. The inspector is served a notice by the court giving him the opportunity to explain that the $5,000 is not ill-gotten gains and is given about three months' time to do so. If he proves that the money is not ill-gotten to the satisfaction of the court, the money is returned to him. Otherwise, the confiscation becomes final after his appeal to the Supreme Court, if any, also fails. And the money is credited to the government treasury.

The confiscation will certainly be a deterrent but it need not prevent the government from proceeding criminal charges against the customs inspector. This will not amount to double punishment for the same crime because confiscating ill-gotten gains is not a penalty. It is just an involuntary act of restitution of property that for all intents and purposes belongs to tax payers.

This paradigm shift from "presumed innocent" to "presumed guilty" and making the wrong-doer prove that his earnings are legitimate is absolutely necessary to make the fight against corruption real and effective.

Briefly, the components of the new design for fighting corruption, through confiscating ill-gotten gains, are as follows:

The Court: It shall be an administrative and judicial body created by an amendment to the Constitution and shall enjoy the status of a constitutional court and shall exercise all judicial and magisterial powers of the rank of a high court. It will work under the Supreme Court. It will be totally independent of the government. The court shall be assisted in its work by a team of income tax and property evaluation experts and a team of investigators. It shall make its own rules of business.

Besides salaries, the court shall be entitled to a reward of 20 percent to 30 percent of the proceeds of properties confiscated, auctioned and credited to the government treasury. This amount shall be shared by all the court officials, including the judge, as decided by the judge, on a case-to-case basis.

The court shall make an annual report to the Chief Justice of the Supreme Court and to the government. The government shall take such steps to publicize the report, as it would be very much in the public interest to do so.

The Law: The title of the first law will be "Confiscation of Properties disproportionate to incomes disclosed". The law shall empower the constitutional court to confiscate ill-gotten gains. It shall state the sources of income from which properties can be legitimately acquired, spell out the methodology for property evaluation and periodically empanel reputed property evaluators whose reports will be necessary in the event there is a serious disagreement between the court valuation and the valuation submitted by the party to the court.

As a last resort, in the event there is a deadlock, the law shall provide for the government to acquire such properties at the party's valuation, provided such a valuation tallies with the sources of income disclosed, at the discretion of the court.

The title of the second law shall be "Whistle-Blowers Act". It is in recognition of the fact that many members of the public know about corruption and details of properties amassed illegally, and would like to help the government to fight corruption but are unable to do so because there is no place authenticated under law to which they can make a report and expect that their names will be kept in the strictest confidence.

They are not informers but foot soldiers and grassroots participants in the fight against corruption, and together they will create a tidal wave of synergy to fight corruption and the fear to prevent corruption.

A suitable reward of between 10 percent and 20 percent of the proceeds shall be awarded by the court to the whistle-blower.

It is to be expected that powerful vested interests will fight tooth and nail against confiscation. But this is the only way legitimate "money power", a hard fact of life, and "rectitude power", a must for good governance, can be made to work together for a squeaky clean polity and society.

Confiscation will be a friend of all honest tax payers and a great benefactor of the poor who look up to the government for succor for progress and advancement.

Should the money power lobby kill confiscation, all talk about corruption shall for ever remain a prisoner of the maxim, "When all is said and done, more is said than done".