Corruption busting and law reform

By Donna K. Woodward

MEDAN, North Sumatra (JP): President Abdurrahman Wahid's pledge to cleanse the bureaucracy of poisonous corruption seems sincere, concrete, and beyond intimidation. His administration began with a call for public officials to declare their wealth at the beginning and again at the end of their terms of service. A statement of assets is a constructive start. But as Coordinating Minister for Economy, Finance and Industry Kwik Kian Gie recently said, in itself this is not sufficient.

A glance back at former president Soeharto's current bank accounts proves how easy it is for a corrupt person in Indonesia's current legal environment to hide assets wrongfully acquired. As we know from the Marcos case, in a democracy it is impossible for a government to prevent all hiding of assets. Experts have explained the circuitous paths that ownership records can travel, so that the real owners of property are well hidden behind a paper wall of paper owners -- family members, attorneys, dummy corporations. There are ways to discourage the hiding of assets. However, these disincentives are generally related to a country's tax and property registration and transfer laws, which in Indonesia still need revision.

There are other innovations that can help control corruption. A clear code of conduct for government officials. Sure enforcement of the code. A national consciousness-raising campaign, explaining corruption, collusion and nepotism (KKN) and the new laws in terms that the public will understand. A Whistle- Blower law, to protect those who in good faith report suspected corruption from retaliation. Finally, a network of special centers where corruption reports can be lodged, staffed by persons who will work competently, fairly, fearlessly.

But all these measures are predicated on the existence of clear, comprehensive laws. A well-crafted anticorruption law is needed so that future Soehartos and their cronies will not escape responsibility for abuse of power as the current Soeharto Group so far has. What should an effective anticorruption law include? Lawmaking begins with a statement of the legislative history and objectives of the proposed law. Statutes relating to corruption are intended, obviously, to prevent corrupt practices.

To accomplish this an anticorruption law needs to define clearly the prohibited conduct; to determine how allegations should be reported and how investigations will be conducted; to set procedural safeguards for fair investigations and standards of proof and rules of evidence for trial; to decide the jurisdictional parameters for investigations and prosecutions.

Finally, an effective statutory scheme needs to incorporate explicit legal sanctions. Unless the new anticorruption law addresses all these elements, the result will be a law with loopholes big enough for a corrupt official to drive a fleet of illegally imported luxury vehicles through, in broad daylight.

But as the Nov. 22 editorial of this paper highlighted, to combat corruption more than an anticorruption law is needed. For a successful anticorruption program, all inadequate laws need to be replaced, so that opportunities to misuse loopholed laws are eliminated.

Following is a simple illustration of how poorly written laws invite corruption. There is a Ministry of Manpower rule that requires companies to complete certain reports. But there is no deadline for filing these reports. And there seems to be no statutory penalty for failure to complete the reports, at least none that officials are able to cite or produce. The statutory gaps give resourceful officials opportunities to introduce requirements of their own and then to exercise discretionary enforcement of these new rules in exchange for special administrative fees. Requirements are created and fees set before our very eyes. The point: currently Indonesia has some statutes that do not meet the tests of effective legislation.

Lawmakers of the Soeharto era did not always draft laws carefully; there was little need for such care under Soeharto's totalitarian system. Indeed it is as if Soeharto consciously designed a flawed bureaucracy predicated on the evil twins of substandard salaries and corruption, just to trap the civil service and military in a permanent web of institutionalized dependence.

Flexibility is a virtue in a bureaucracy. But the statutory loopholes that opened the door to the ad-hoc rulemaking that now pervades the Indonesian bureaucracy and allows endemic corruption to survive, these need prompt attention.

The legal system as a whole needs to be overhauled. Who will draft the reform laws? Who will pay attention to the little details that make the difference? Though there are many veteran lawmakers in the House of Representatives, after years of functioning as Soeharto's rubber stamps, and facing an inherited body of source law in a language now foreign to most, the House no longer has the technical skills to rebuild the legal system.

The President has now proposed a National Commission on Law which will have this expertise. If the House members who must enact laws will welcome with openness the role of the new commission for drafting laws, the House might redeem itself as an instrument for shaping Indonesia's character as a nation of laws, not personalities.

The writer, an attorney and former American diplomat at the U.S. Consulate General in Medan, is president director of PT Far Horizons.