Guest Post: A Bleak Future for Indonesia’s Anticorruption Commission?

GAB is pleased to welcome back Sofie Arjon Schütte, Senior Advisor at the U4 Anti-Corruption Resource Centre, to contribute today’s guest post:

Indonesia’s Corruption Eradication Commission, known by its acronym KPK, was established during Indonesia’s reformation period in the early 2000s, and quickly became one of the world’s most powerful and independent anticorruption commissions. When the KPK began operations in 2004, a government regulation granted the agency substantial autonomy in its human resources management system, which the KPK used to ensure the integrity and competence of its staff. This control over personnel is considered good practice by international standards for anticorruption agencies, especially in environments where the existing state apparatus, and in particular law enforcement, is part of the corruption problem. And in Indonesia’s case, the KPK’s success in ensuring a competent and honest staff has been crucial to the agency’s track record of success—a track record that includes bringing more than 700 cases, the large majority of which resulted in guilty verdicts against members of Indonesia’s national and regional political elite.

But the KPK’s threat to vested interests has provoked strong resistance. This resistance has taken many forms, from judicial hostility, orchestrated demonstrations and threats, personal attacks on members of the organization, stalling the agency’s budget, and attempts to curtail its authority and autonomy through other legislative changes. The most devastating development was a new KPK Law, adopted in 2019, that was pushed through the legislature in rapid time without public input. This law effectively stripped the KPK of autonomy in important investigative functions and in its human resources management (here and here). Under the law, by September 2021 the KPK is to be integrated into the state apparatus, and its employees must become regular civil servants.

Allegedly as part of this process of integrating KPK employees into the regular civil service, the government recently required all KPK officials to take a specially concocted “national vision exam.” To be clear, neither the 2019 KPK Law nor its implementing regulations explicitly require such a test, which differs from the standard civil service entrance exam that all civil servants must take. Rather, this special test was developed by the National Civil Service Agency in collaboration with the Indonesian Armed Forces and Intelligence Service specifically to determine which KPK officers were radical and lacked neutrality and integrity and therefore presumably unfit for future civil service.

Seventy-five KPK employees failed this special exam. That may not seem like a big deal, both because 75 people amounts to less than 6% of the KPK’s current staff of over 1,300 employees, and because it might seem that failing a civil service exam is a reasonable ground for dismissal. But as the names of those who failed the test, and more details about the questions and the process, were made public, many critics have raised legitimate concerns. Indeed, even before the test was administered, the KPK employees’ union (which, by the way, will cease to exist after the conversion of the KPK into a regular civil service agency) warned that such a test could be misused to legitimize the marginalization or dismissal of KPK officers that handle strategic cases or hold strategic positions in the agency. And now that the results have come out, there are reasons to believe these fears were well-founded.

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U4 Brief on “An International Anti-Corruption Court? A Synopsis of the Debate”

As regular readers likely know, GAB has featured a number of commentaries over the past few years on the proposal to create an International Anti-Corruption Court (IACC), modeled on the International Criminal Court, to try senior figures for grand corruption when their domestic justice systems prove unwilling or unable to do so (see here, here, here, here, and here). The idea has attracted a great deal of interest, as well as both support and criticism. To provide a basic overview of the debate so far, a few months ago the U4 Anti-Corruption Resource Center Centre’s Sofie Schütte and I published a short U4 paper entitled “An International Anticorruption Court? A Synopsis of the Debate.”(The brief is also available in French and Spanish.)  For those out there who are new to this topic, this U4 Brief is meant to provide some general background information and a succinct summary of (1) the strongest arguments in favor of creating an IACC, (2) the strongest criticisms of the IACC proposal, and (3) an overview of some other approaches to the grand corruption and impunity problems. Hope it’s helpful!

When Should Countries Outsource Key Anticorruption Functions to Foreigners?

Partly because of previous work I’ve done (with Sofie Schütte of the U4 Centre) on specialized anticorruption courts, I recently had the opportunity to participate in some interesting discussions in Kiev about ongoing debates about the possible the creation of such a court for Ukraine. There’s much to say on this topic generally, but what most and surprised me about the discussions I was fortunate enough to attend was how much they focused on a specific proposal—advanced by certain influential members of the Ukrainian civil society community—for the international donor community to participate (indirectly but formally) in the selection of the judges to serve on this court. There are a few different proposals floating around, but I’ll focus on the version embraced by a draft law currently pending in the Ukrainian Parliament. Under this proposal, judges on the special anticorruption court would be chosen by a nine-member Judicial Selection Committee. Of these nine members, three would be appointed by the President, three would be appointed by the Parliament, and three would be selected by the international donor community. (Formally, the last three would be appointed by the Minister of Justice, but that’s a formality: According to the proposal, the Minister of Justice would be obligated to consult with the international donor community and to appoint the three individuals that they recommend.)

For some in the civil society community, this feature of the proposal is absolutely essential, and they fear that without a formal role for the international community in the judicial selection process, the anticorruption court will be a failure. Others feel equally passionately that formalizing a role for international donors in the selection of special court judges is deeply misguided, and will jeopardize (both politically and legally) the special court experiment. I don’t know nearly enough about Ukraine’s specific situation to have an informed view on this one way or the other. But the proposal seemed sufficiently novel and interesting to be worth contemplating more generally. After all, though to the best of my knowledge there’s no precedent for what the draft Ukrainian law proposes, it’s not unheard of for countries to “outsource” (for lack of a better term) aspects of the law enforcement apparatus that most countries most of the time would consider core functions of the state, particularly in the context of anticorruption or closely related matters. (Probably the best known example is CICIG in Guatemala, in which a UN-sponsored body, headed by a non-citizen, has substantial investigative—though not prosecutorial or adjudicative—powers.) Is this an approach that more countries should adopt—for their investigators, prosecutors, or even their courts?

Again, I don’t have a terribly strong or well-informed view on this question, so this isn’t one of those posts where I’m going to take an aggressive, argumentative stand. I’m still thinking this through myself. But I figured that since this question might be of interest to others as well, I’ll offer a few thoughts on the possible advantages and disadvantages of outsourcing some or all of a state’s core law enforcement functions. I’ll think about this mainly in the context of anticorruption, though many of the arguments would apply more generally.

Long story short: I can think of two big potential advantages for this sort of outsourcing, and four countervailing drawbacks. Continue reading

Specialized Anticorruption Courts: An Overview

I’m going to take a quick break from agonizing about the impending Trumpocalypse to share some news about a new U4 Issue Paper, which I coauthored with Sofie Schütte, on specialized anticorruption courts in countries around the world. (This paper builds on an earlier series of case studies.) Here’s the abstract:

Frustration with the capacity of the ordinary machinery of justice to deal adequately with corruption has prompted many countries to develop specialised anti-corruption institutions. While anti-corruption agencies with investigative and/or prosecutorial powers have attracted more attention, judicial specialisation is an increasingly common feature of national anti-corruption reform strategies. The most common argument for the creation of special anti-corruption courts is the need for greater efficiency in resolving corruption cases promptly and the associated need to signal to various domestic and international audiences that the country takes the fight against corruption seriously. In some countries, concerns about the ability of the ordinary courts to handle corruption cases impartially, and without being corrupted themselves, have also played an important role in the decision to create special anti-corruption courts. Existing specialised anti-corruption courts differ along a number of dimensions, including their size, their place in the judicial hierarchy, mechanisms for selection and removal of judges, the substantive scope of the courts’ jurisdiction, trial and appellate procedures, and their relationship with anti-corruption prosecutors. These institutional design choices imply a number of difficult trade-offs: while there are no definitive “best practices” for specialised anti-corruption courts, existing models and experience may provide some guidance to reformers considering similar institutions. They must decide whether such a court should adopt procedures that are substantially different from those of other criminal courts, and/or special provisions for the selection, removal, or working conditions of the anti-corruption court judges.

New Case Studies on Specialized Anticorruption Courts in Indonesia, the Philippines, Slovakia, and Uganda

As is well-known, many countries around the world–especially developing and transition countries–have established specialized anticorruption institutions with prosecutorial and/or investigative functions. These agencies have attracted a great deal of attention and analysis (including on the blog–see, for example, here, here, here, and here). Many countries have gone further, and established specialized courts (or special divisions of existing courts) to focus exclusively or substantially on corruption cases. These specialized anticorruption courts have gotten relatively less attention, but as proposals for such courts have become increasingly prominent in many countries, there is a growing need for close analysis of these institutions.

To meet this need, the U4 Anticorruption Resource Centre has a new project, under the direction of Senior Advisor Sofie Arjon Schutte, on specialized anticorruption courts (a project in which I have been fortunate enough to participate). The first set of publications to result from this project are a series of short case studies on four of the existing special courts, in a diverse set of countries: Indonesia, the Philippines, Slovakia and Uganda. Readers who are interested in this topic might want to click on the links. Also, in addition to these four country briefs, there’s a longer U4 paper in the pipeline (coauthored by Sofie and myself) that discusses and compares a larger set of special courts around the world. I’ll do a post announcing that as well, as soon as it’s ready. And if anyone out there has information and insights about any special courts in other countries, please feel free to send it!

Guest Post: Fishing for the Right ACA Heads, and Keeping Them Safe

Sofie Arjon Schütte, Senior Advisor at the U4 Anti-Corruption Resource Centre, contributes the following guest post, adapted from her recent U4 research paper, “The fish’s head: appointment and removal procedures for anti-corruption agency leadership”:

There has been much discussion on this blog (see here, here, and here) about the requirements for an effective, independent anticorruption agency (ACA). A number of factors are important, including (as emphasized in the Jakarta Statement) the ACA’s mandate, permanence, budget security, autonomy over financial and human resources, and internal and external accountability mechanisms, to name a few. But among the many important factors, the procedures for appointment and removal are particularly critical. As the saying goes, “a fish rots from the head down”: when the leadership of an organization is unethical or ineffective, these failings infect the entire organization. Undue external interference with an ACA is likely to target the head, and a co-opted or corrupted ACA head can do serious damage to the effectiveness and reputation of the ACA.

My research on the appointment and removal procedures for heads of 46 ACAs around the world has highlighted some of the important factors that can promote or undermine effective, ethical, and independent ACA leadership. Given different contexts, no specific set of procedures for appointments and removals can be considered ideal for all environments. Nevertheless, some general guidelines are possible: Continue reading