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Indonesia’s Corruption Eradication Commission Law Weathers the Storm, For Now

 
 

The independence of government agencies is not often a cause exciting enough to drive masses of supporters into the streets. But for Indonesia’s Corruption Eradication Commission (Komisi Pemberantasan Korupsi, KPK) legions of followers, including some dressed as superheroes, have demonstrated over and over against perceived threats to the agency’s autonomy. Created in 2002, the KPK is frequently cited as Indonesia’s most trusted government institution. The KPK also receives high praise from abroad and was included as a model of best practices for anti-corruption agencies in a 2013 Transparency International (TI) document. But as experienced by many anti-corruption institutions around the world, vigorous investigation into corruption often leads to an intense backlash.

The continuous attempts by politicians to undermine the KPK’s independence and ability to effectively investigate and prosecute corruption generally come in two varieties: weakening the institution within its existing structure and fundamentally altering its basic structure.

The first type of political challenge to KPK’s independence has recently taken the form of restraints on resources and staffing the organization with inexperienced commissioners. Sufficient financial support is an essential prerequisite for an independent and effective anti-corruption commission. The Organization for Economic Co-Operation and Development (OECD) and Transparency International consider financial sustainability as one of the hallmarks for an independent graft-fighting agency. Anti-corruption expert Samuel De Jaegere believes true independence even requires guaranteed minimum budgets to avoid arbitrary reductions.

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For many years, the KPK was forced to work in a former bank building designed to accommodate only half of its staff. Lack of proper facilities was frequently cited a sign of politicians undermining KPK functions. In 2017, the KPK faces a significant 26 percent budget cut, 257.6 billion Rupiah (US$19.3 million). KPK spokesman Febri Diansyah stated that this budget cut would make the institution function “less optimally” for the benefit of “the perpetrators of corruption itself.”

The OECD and TI also agree that selection of personnel, in particular the agency director, is another crucial component of constructing independent anti-corruption agencies. When five new commissioners without anti-corruption experience were nominated by the House of Representatives (Dewan Perwakilan Rakyat, DPR) and appointed by President Joko Widodo in December 2015, observers saw a blatant attempt at weakening the institution. Indonesian Corruption Watch’s Emerson Yuntho was dismayed enough to release a statement reading “I am worried that the KPK is no longer a commission to eradicate corruption, but a commission to support corruption.”

Yet despite the limited financial resources and selection of inexperienced commissioners, the underlying independent authority of the KPK remained intact and the agency has continued to build on its reputation as a courageous advocate of good governance. Throughout the years of toiling away in the cramped bank building, the KPK maintained both its near-100 percent conviction rate and its high level of public approval. Chairman Agus Rahardjo, one of the commissioners criticized upon selection in 2015, has proven many critics wrong and led the KPK through investigations of several high-profile cases, including the ongoing alleged appropriation of state funds designated for electronic ID cards. In October 2016, the OECD commended the KPK for “steadfastly pursuing graft despite political backlashes.”

The KPK has persevered because its independent authority is enshrined in its founding law. Chapter 1, Article 3 of National Law 30/2002, which established the KPK, states that it will exercise its core investigatory and prosecutorial powers “independently, free from any and all influence.” A 2006 challenge to KPK Law resulted in the Constitutional Court upholding the independence of the commission from the executive, legislature, judiciary as well as other independent agencies.

Since 2010, factions of the DPR have regularly proposed revisions to the KPK Law. The most recent version put forward in 2017 would clearly bring the KPK well under the control of the executive and the legislature. First, a supervisory board (with members nominated by the president and elected by the DPR) would need to give permission for the KPK to employ essential anti-corruption tools, most notably wiretaps. In addition, the proposed amendment would mandate that KPK investigators are borrowed from the staff of the National Police. These alterations would effectively end the commission’s independence as established in Article 3 of the KPK Law.

Significant media attention is focused on overt efforts to amend the KPK Law. However, a subtler attempt to alter the commission’s fundamental structure is also underway. Without formally altering the KPK’s founding document, some politicians attempted to reframe it in a way which would significantly reduce its independence. Former Secretary of State Yusril Ihza Mahendra recently stated that because the KPK has powers of law enforcement, it is functionally the same as the national prosecutor and other law enforcement bodies. This functional equivalence means that the KPK is just as much an executive agency as the prosecutor’s office. Yusril’s argument is reminiscent of former DPR Speaker Marzuki Alie’s contention that the KPK is an ad hoc institution, created on a temporary basis to aid police and prosecutors in their anti-corruption efforts.

Both of these opinions attempt to reinterpret the status of the KPK as just another part of the executive rather than a full-fledged independent agency outside of the traditional three branches of government. This argument would seemingly fly in the face of the plain reading of the KPK Law and the 2006 Constitutional Court decision on KPK independence. But if this reinterpretation becomes the prevailing legal and political point of view, the KPK would then be subject to presidential controls as well as interventions by the DPR.

In the wake of the electronic ID scandal in early 2017, the DPR abandoned the latest effort to amend the KPK Law and instead launched an investigation through a special committee. Yusril argues that because of the KPK’s position under the executive, it must comply with the special committee or challenge its status in court. Observers have worried about the effect of this investigation, with Indonesia’s Tempo magazine labeling it “A plot to kill the KPK.”

Thanks to the 2002 KPK Law, the commission has only grown stronger in the face of financial and personnel challenges. But if the fundamental structure of this law were to change, either from amendments or successfully reframing it in court, the effects could be significant. The KPK might lose both its high conviction rate and high standing in public opinion. Indeed, reforms to the Law may well be needed. The OECD noted that the KPK is overly centralized and therefore unable to adequately address provincial corruption and issues endemic in the forestry and mining sectors, located predominantly in rural areas. Centralized anti-corruption agencies often fail to achieve their goals because, among other reasons, they provide a single focal point for interference by outside actors. Debates on topics like this must be had among the government, anti-corruption specialists and the general public. However, to truly tackle corruption in Indonesia, the legal basis which gave the KPK its independence must be preserved.

Maxwell Abbott is an American attorney and independent legal researcher based in Southeast Asia. He focuses on the subjects of access to justice, human rights, and legal education.

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