GAB is pleased to welcome Simon Butt, Professor of Indonesian Law and Director of the Centre for Asian and Pacific Law, the University of Sydney, to contribute a two-part series on recent developments in Indonesia. Today’s post, the second of the two, is a revised and expanded version of an article that Professor Butt originally published on Indonesia at Melbourne.
As I discussed in yesterday’s post, Indonesia’s anticorruption commission (the Komisi Pemberantasan Korupsi, or KPK) has found itself under serious attack since it began to pursue powerful political figures. Members of the national parliament, many of whom have found themselves in the KPK’s sights, have long threatened to use their legislative power to weaken the KPK and undermine its independence. For many years the KPK has managed to stave off such threats, thanks mainly to strong leadership and public support. But the KPK has found itself in a weakened state in recent months. It lost its first case in its 17-year history, and more significantly, the KPK’s leadership team has been replaced with a new group of problematic commissioners, whose terms commence next year. And last month, on September 17th, the parliament took advantage of this vulnerability and finally made good on its threat to amend the 2002 statute that established the KPK. These amendments, which attack the very institutional features and powers the KPK has used to build its impressive track record, are disastrous for the KPK and Indonesia’s fight against corruption.
- First, the revised law removes the blanket prohibition on the KPK ceasing investigations and prosecutions of people it has formally named as suspects. This prohibition was initially imposed to prevent cases being dropped due to political pressure, or in return for a bribe—practices that were common among police and prosecutors during the Suharto era. The original 2002 law meant that once the KPK had announced a prosecution, it had to follow through. Under the revised statute, the KPK can now drop cases if the investigation or prosecution is not complete within two years.
- Second, the amended law curtails the KPK’s investigative powers, most importantly its authority to use wiretaps—the investigative tool that the KPK has relied on perhaps more heavily than any other to prove many of its cases. While the amendments do not remove the KPK’s power to wiretap, the revised law requires the KPK to get prior written approval from a new Supervisory Board before it can use wiretapping (or engage in other searches or seizures). While framed by proponents as a sensible check on overbroad or abusive investigations, in fact this new requirement will—and is likely intended to—slow down the process and make it easier to tip off the targets of proposed surveillance. Worse, the new provisions do not establish any time limits on the Board’s consideration of an application, and indeed seem to give the Board unconstrained discretion to grant or deny an application. (Article 12B(3) says that the “Supervisory Board can give written permission [for a wiretap]…within 24 hours from when the request is lodged” (my emphasis); the use of the word “can” means that 24-hour time limit is merely precatory.) The provision also does not establish any consequences if the Board does not meet within 24 hours or refuses a request without explanation.
- Third, the revised law also gives this new Supervisory Board broad power over KPK employees and commissioners. The amendments authorize the Board to write an ethics code for KPK employees, including the commissioners, and the Board is empowered to hold formal hearings to determine whether the code has been breached. In other words, the Board both writes and enforces the ethics rules. The Board will also evaluate the performance of KPK leaders annually. Furthermore, the President chooses the Board’s members. The problem here should be obvious: The Board, a political body closely aligned with the President, can not only prevent the KPK from using its most effective investigative tools (such as wiretaps), but can also discipline KPK commissioners and staff. This is likely to dissuade the KPK from aggressively pursuing the President or figures close to the President, including ministers, senior bureaucrats, and legislators from parties that support the President.
- Fourth, the revised law reclassifies KPK employees formally as “civil servants”. This is significant under Indonesian law because it places KPK employees under the general rules that apply to all civil servants and the administration of the Ministry of Administrative and Bureaucratic Reform. The fear here is that KPK employees will come to see their main responsibility as being to support the government rather than to uncover and pursue corruption in that government. Unfortunately, there’s a long history in Indonesia of doling out desirable positions and promotions to reward loyalty rather than good performance. The KPK had been shielded from this system, but under the revised law, KPK staff will lose that insulation.
The official explanation for these amendments was that the KPK was ineffective due to weak coordination between the KPK and other law enforcement institutions, and lax ethical standards at the KPK. Indeed, the head of Indonesia’s House of Representatives suggested that corruption had increased since the KPK’s establishment. At the same time, the President’s chief of staff asserted, without substantiation, that the KPK’s enforcement efforts were deterring investment. But these claims don’t withstand scrutiny. Indeed, there’s little evidence to suggest that the KPK’s performance has been anything but stellar, particularly given the hostile political environment in which it must operate. The KPK has generally increased the number of cases it handles each year, and has only ever lost one prosecution out of over 500 cases. There is no reliable evidence indicating that corruption is increasing, nor that the KPK’s efforts to fight corruption are to blame for Indonesia’s economic troubles. If anything, the KPK’s performance suggests that its budget and operations should be expanded so that it can handle more cases. As numerous civil society organizations and concerned academics have observed, the real explanation for these amendments is that many legislators and their cronies fear being investigated or prosecuted by the KPK themselves. That fear is well-founded, given that the national legislature is widely considered one of Indonesia’s most corrupt institutions, with about two dozen legislators sitting in the 2014-2019 legislature already pursued by the KPK.
The future is looking bleak. But all may not be lost: In Indonesia’s larger cities, students, academics and civil society organizations have been demonstrating against the amendments. If President Joko Widodo (known as Jokowi) is put under enough pressure, he could reverse the amendments by issuing an emergency law. Another possible avenue for challenging the amendments is through the courts, and indeed civil society organizations are already planning a legal challenge, which will be heard before the Constitutional Court. There are genuine constitutional concerns about the new law. One of the strongest arguments is that the process of passing these revisions–which involved behind-closed-doors deliberations, without the input of the KPK and academic experts—violates rules that require lawmakers to seek public input on draft legislation. Additionally, only 107 legislators were present to vote on the draft law, well below the 281 required for a quorum. (The House Deputy Speaker claimed that 289 legislators voted, mainly using messaging apps, but it is unclear whether voting via messaging app is legal.) So there’s hope here too, though this will probably require the Court can see past the fact that the KPK itself has successfully pursued two of its judges for corruption in recent years. And, of course, there’s a serious question whether the government would comply with a judicial decision invalidating the amendments. So this drama will continue to unfold in the weeks and months to come. But the current situation is very bad. The KPK has been a beacon of hope for anticorruption fighters not only in Indonesia, but around the world, and these new amendments represent an enormous setback.