JP/3/DISO
New anti-graft law only exacerbates corruption
On Nov. 21 President Megawati Soekarnoputri signed off on a new anti-corruption law. Teten Masduki, chairman of Indonesia Corruption Watch, in an interview with The Jakarta Post contributor Christiani Tumelap, criticizes the definition of corruption adopted in the new law on the grounds that it only covers activities that cause a financial loss to the state.
Question: What is the significance of the new Anti-Corruption Law no. 20/2001?
Answer: There are only three new things in this revised law (a revision of law no. 3/1999), namely, the adoption of the reverse burden of proof from the prosecutor to the defendant, (prescriptions on dealing with) "gratifikasi", or money given to state institutions and a transitional clause.
One slight improvement is in the adoption of the principal of the reverse burden of proof, in which the defendant will be asked to prove his or her innocence. Unfortunately, this principle only applies at the court level.
Many corruption cases are kept under the carpet at the investigation and prosecution stages. The police sometimes cancel their investigation saying they lack evidence. In court, defendants are likely to be freed because the charges brought by the prosecutors are inaccurate.
This new law actually imposes somewhat tougher punishment on corruptors, which is good. It also has a clear transitional clause to ensure that acts of corruption which occurred before this new law was enacted can still be processed under the earlier 1999 anti-corruption law.
But it will not fix the real problem that has long plagued our law enforcement institutions. As the burden of proof is put on the shoulders of the prosecutor and police, the chances for the police or prosecutor to be involved in a conspiracy with the suspect are even greater. If the prosecutor says no evidence is found, the corruptor will walk free no matter how large the sum of money he misused.
Obviously, there's great fear in the government and in the legislature (DPR) about applying the reverse burden of proof from the very beginning at the investigation level.
Because they're involved?
Perpetrators of many acts of corruption are actually the politicians themselves. Will people create a machete to cut their own necks? It's simply impossible to expect a corrupt political society to create a fair legislative product.
They (the politicians) made very limited revisions. Oh, just apply the reverse burden of proof at the court level and we'll be fine. Yes, they can sit back and relax as long as they can pay the prosecutor and the police ... So how will this new law affect the eradication of corruption?
It will be more significant in bolstering corruption, especially within the bureaucracy, because this law provides a chance to allow state institutions to accept some sort of "gratification" of less than Rp 10 million (US$980). This is a huge amount for state employees who mostly earn far less than half that amount.
Receipt of a "gratification" must be reported to the anti- corruption commission, which is yet to be formed. The commission will then decide whether or not there is a conflict of interest implied in the payment of the gratification, thus it decides whether the money given to the state institution can be kept or must be handed over to the government. (If not reported to the commission, evidence that the receipt of an amount exceeding Rp 10 million is not a bribe must be provided by the recipient; if less than Rp 10 million, proof that the money is not a bribe must be provided by the prosecutor -- Ed.)
Of course the civil servant could just find a way to prove (that the money is not a bribe).
The amount of Rp 10 million means almost nothing for the higher level employees. The law is apparently aimed more at the higher level. The problem is, bribery involving high-level officials is no longer conducted using money, but 'golden' shares and other strategies that are not covered by the law. So you don't believe the law will help curb corruption?
No, I don't, partly because it still defines corruption in a very restricted way, as an act that causes a financial loss to the state. This kind of thinking must be changed. Corruption is an abuse of power. In many other countries like Hong Kong and Malaysia, any act of power abuse is categorized as an act of corruption.
The law says that the state, through the prosecutor and police, is the only party with the authority to bring corruptors to court. Yet corruption has caused losses to the public and the perpetrators of corruption are the state institutions.
There should be an opportunity for people to bring corruptors to court. Due to the restricted definition of corruption, there are many corruption cases that have clearly inflicted a loss on the public but have not been brought to court mainly because authorities say such acts do not cause financial loss to the state, but to the private sector. What is the main factor behind corruption here?
Corruption has nothing to do with culture. The difference between theft and corruption is that a thief will steal 10 hens but a corruptor will ruin the poultry industry. Corruption is closely related to policy and power. Our political structure has contributed a lot to the development of corrupt practices.
Many who hold political power now tend to allow corruption and even practice corruption. It's also a mentality. Some can still tolerate corruption. Many others start to hate corruption and try to fight against it, but face limitations in law enforcement and the legal system.
Hasn't there been the least sign of decreasing corruption since Soeharto quit the presidency?
The number of perpetrators has instead grown and they do it (corruption) more openly. Corruption under Soeharto evolved within the palace; corruption is now widespread in many political parties, which copy the way people of the New Order gathered political funds. Now they're the main perpetrators of corruption. And the justice system is also corrupt.
We need good leaders who won't hesitate in fighting corruption and strive to keep the rest of the bureaucracy clean. What about Megawati?
She has appointed an attorney general from the Attorney General's Office, which is notorious for its corrupt environment. She made statements against corruption on three occasions but has not acted on what she said. She should have at least issued a law on freedom of information and a law on witness protection. How many state institutions are still clean
Less than one percent. Sixty percent of the budget has been corrupted -- 30 percent from the budget's income and the rest from expenditures. And only up to 30 percent of the potential or paid taxes are actually sent to the state's coffers. So what should be done to eradicate corruption?
A significant change in the political structure is a must. We also need new people. Judges and prosecutors are appointed by politicians. If politicians and officials are corrupt, how can we expect them to appoint clean judges and prosecutors or conduct reform in the justice system?