JP/3/DISO

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?