The Jakarta Globe
has more details about the corruption scandal involving Judge Syarifuddin Umar. The Bengkulu Legal Aid Office claims the judge took some Rp 5 billion ($585,000) while presiding over the graft trial of Bengkulu Governor Agusrin Najamuddin. Meanwhile, the Supreme Court announced
that it would temporarily suspend Judge Syarifuddin Umar pending the investigation.
Last night, Indonesia’s anti-corruption commission (KPK) arrested a bankruptcy court judge in the Central Jakarta Commercial Court on charges of corruption. He will be required to undergo judicial ethics training with the Judicial Commission. It’s unclear if this is part of a larger effort to crack down on judicial corruption or just an individual case. It was a particularly conspicuous case in that the judge had tens of thousands of dollars (in different currencies), but it’s certainly not the only case of judicial corruption. There are a few brief articles about the case in The Jakarta Post here, here, here, and here. Hopefully we’ll see on this case more soon.
A few months ago, I mentioned that Indonesia’s Attorney General dropped what many believed were fraudulent charges against two KPK deputies, Bibit and Chandra. Surprisingly, some of their supporters wanted the two men to fight it out in court, believing that only a full trial would full vindicate them. Technically, the government used a Dutch procedure known as a deponering, which suspends the prosecution but still considers the men suspects.
Now, it appears opponents of the KPK seek to wield that technicality against Bibit and Chandra. According to The Jakarta Globe, the two men were not permitted to attend a House hearing on the KPK and reforms. Lawmakers claimed this was because the men were still legally considered suspects. Yet, as the newspaper notes, many believe the move was in retaliation for the arrest of 19 former and current legislators on charges of corruption.
Sadly, it seems that even if Bibit and Chandra are no longer in immediate danger of prosecution, last year’s compromise over the case also compromised their ability to act effectively. Yet another tragedy in the story of post-reformasi Indonesia.
Filed under indonesia, KPK
When the Washington, D.C., think-tank crowd gathers for an event on legal reform in Indonesia, you know a major scandal is brewing. At a CSIS event earlier this week, November 23 2009, Michael Buehler, of Columbia University’s Weatherhead East Asian Institute, discussed the ongoing controversy surrounding Indonesia’s Corruption Eradication Commission (KPK). Appropriately titled Of Geckos and Crocodiles,” the talk discussed the KPK (nicknamed the geckos), and its failure to root out vested interests in the police and judiciary (the crocodiles).
Buehler began his talk with a tour de force of Indonesia’s current anti-corruption legal framework. He later discussed the institutional capacity of Indonesia’s legal institutions, particularly the KPK. As of 2009, the KPK has a staff of 400 and a budget of $22 million – an obvious improvement over the Suharto era, but miniscule compared to its counterparts in Hong Kong and Singapore. According to Buehler’s data, the the KPK Corruption Court (TIPIKOR) handled over 30% of all corruption cases in the country. Impressively, it has a 100% conviction rate against defendants, versus less than 40% in the regular judiciary. However, most of those officials convicted in the TIPIKOR have been lower-level officials rather than the “big fish.”
Unfortunately, the SBY administration watered down the legal basis for the KPK and TIPIKOR in the Corruption Court Law of 2009. Previously, TIPIKOR judge panels consisted of a mix of ad hoc and career judges. The former were seen as more independent than the latter, who often must please superiors to receive promotions. However, the new law would replace the ad hoc judges entirely with career judges. Furthermore, the district court chief judge can alter a panel of TIPIKOR judges at will, even further weakening their independence. The law also establishes a branch of the TIPIKOR in all 33 provinces, but some critics allege that this would simply stretch the KPK’s already limited resources too thin.
Buehler made an interesting point about the “legal mafia.” According to a study he recently conducted, Indonesian conglomerates pay tuition for law students and recruit them to serve in the judicial service. Then, when they graduate, the conglomerate knows it has a network of loyal judges throughout the district courts. I am in the process of tracking down this report and will post comments as soon as possible.
The Istana Merdeka
announced a policy that resembled traditional Javanese aloofness
more than the vigorous activism legal reformers had hoped for. According to BBC
, SBY has suggested the two KPK officials – Bibit Samad Rianto and Chandra Hamzah – should not face trial, but also resisted pressure to interfere directly in the case. SBY hinted that the scandal should be settled out of court, i.e. that nobody would face justice on corruption charges. Buehler criticized this as sending precisely the wrong message about corruption, and that’s certainly the image foreigners have taken away from this scandal.
While far from blameless, one thing that bothers me about all of these attacks on SBY is that they seem to ignore the finer points of Indonesian law. Any American lawyer knows that the president cannot simply intervene in an ongoing prosecution. Just imagine the outcry if President Bush had publicly condemned Patrick Fitzgerald’s prosecution of Scooter Libby for outing CIA agent Valerie Plame. As the Economist
pointed out, it’s ironic that legal reformers are now criticizing SBY for refusing to take a similar action. As lawyers, we should be concerned with process as well as justice. Just because Bibit and Chandra are sympathetic figures on the side of righteousness, it wouldn’t make a good precedent for the president to take extra-constitutional steps to protect them. Unfortunately, this is not the first or last time legal reformers have urged foreign governments to take certain reforms without considering local context.
Note: if you haven’t been following the story, check out BBC’s Q&A
about the scandal.
With the brewing scandal over the Indonesian police’s ham-handed efforts to blackball the Corruption Commission (KPK), it appears there is talk once again of a commission to reform Indonesia’s legal system. According to Reuters, Adnan Buyung Nasution, recently appointed by President Yudhoyono to a task force to respond to the scandal, has proposed a new state commission to oversee and enforce legal reforms:
I would like to see the whole case [the recent scandal] as an entry point to reform the legal institutions in Indonesia,’ Mr Nasution, 75, said in a telephone interview. With enough evidence, ‘we might make a recommendation to establish a state commission to reform the legal institutions so that we have rule of law in Indonesia.
Nasution also warned that corruption in the country has deterred foreign investors. Read the entire story here
My own thoughts – this is probably a temporary balm on a much deeper problem. Nasution cites the example of Hong Kong’s Independence Commission Against Corruption, but studies suggest that political willpower was the most important factor in ICAC’s success. By contrast, recent reports
implicate SBY in the conspiracy caught on tape. Indeed, the KPK indicted SBY’s son’s father-in-law, and, according to The Jakarta Post
, was said to be preparing indictments against more members of his inner circle. While there is no evidence directly tying SBY to the conspiracy, so far Indonesians do not see him as a profile in courage, according to new polls
Another concern is the fate of the last Indonesian commission established to reform the legal sector – namely the Judicial Commission. Several years ago, when the Judicial Commission accused several Supreme Court justices of corruption, the Supreme Court turned around and sued the commission in the Constitutional Court. The Constitutional Court accepted the Supreme Court’s arguments and stripped the Judicial Commission of its enforcement powers. [Simon Butt recently published a paper
on the case].
This case dramatically shows just how vigorously Indonesia’s judges will protect their vested interests. Judges have tended to rally around accused colleagues rather than assist reformers, even if it damages the credibility of both themselves and their court. More ominously, the case also showed just how uncoordinated and disunited stakeholders in the legal sectors have been. Successful legal reform needs committed stakeholders, but so far it seems corruption runs throughout the entire legal system – judges, police, prosecutors, even the bar associations. Whenever one legal institution tries to reform part of the system, another simply undercuts it. In this case, the Judicial Commission and Constitutional Court, both post-Suharto reform institutions, interpreted judicial independence and the rule of law differently.
Maybe a commission with full presidential backing and oversight over the entire system will fare better than the Judicial Commission. However, the late Indonesian legal scholar Daniel Lev predicted that it would take a generation to achieve meaningful legal reforms. Ten years after the fall of Suharto, Nasution claimed the new legal commission would need 10-20 years to complete its work. Sadly, I fear this predictions are correct and that Indonesian legal reform will only succeed with the arrival of a new generation of Indonesian government officials.