Corruption busting and law reform

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.