Amendments spell disaster for the KPK

Civil society activists held a mock funeral for the anti-graft agency on 17 September. Photo by Wahyu Putro A for Antara.

 

For at least a decade, national legislators have threatened to weaken the Corruption Eradication Commission (KPK). On 17 September, they finally made good on this threat, enacting an amendment to the 2002 KPK Law that will likely neuter the Commission.

 

This amendment was deliberated by the national legislature (DPR) behind closed doors, without the input of the KPK and academic experts. It was finalised and enacted in record time amid growing civil society protest. Only 107 legislators were present to vote on the draft law, well below the 281 required for a quorum (although DPR Deputy Speaker Fahri Hamzah claimed that 289 legislators voted, some via messaging apps).

 

Why was this amendment pushed through? The official explanation appears to be that the KPK was ineffective. The general elucidation to the amendment seems to attribute this to weak coordination between the KPK and other law enforcement institutions, violation of ethical standards by its staff, and the KPK’s power being inconsistent and overlapping with those of other law enforcement institutions. Indeed, the head of the DPR’s legislation body even suggested that corruption had increased since the KPK’s establishment, as had losses to the state from corruption.

 

There is, in fact, very little evidence to suggest that the KPK’s performance has been anything but stellar, particularly given the hostile political environment it works in. If anything, the KPK’s performance suggests that its budget and operations should be expanded so that it can handle more cases. It 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.

 

Many civil society organisations and concerned academics have called out these justifications for the amendments as concoctions, created by legislators and their allies who fear being investigated or prosecuted by the KPK themselves. This fear is well founded. The national legislature is widely considered one of Indonesia’s most corrupt institutions and, according to Indonesia Corruption Watch (ICW), about two dozen legislators sitting in the 2014-2019 legislature are being or have been pursued by the KPK.

 

In this context, it seems reasonable to presume that many of these legislators were desperate to enact the amendment before their term ends. (Those elected to sit in the DPR for its 2019-2014 term will be sworn in next month.)

 

The amendments attack the very institutional features and powers the KPK has needed to build such an impressive track record. For example, 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 in return for a bribe – a practice that became very common among police and prosecutors during the New Order era. The KPK can drop cases if the investigation or prosecution is not complete within two years (Article 40).

 

Perhaps the amendments most likely to render the KPK ineffective relate to its wiretapping powers. The KPK has often admitted relying on wiretapped conversations more heavily than any other form of evidence to prove many of its cases.

 

The amendments do not remove its power to wiretap, but KPK leaders now need prior written approval to tap from a Supervisory Board established under the amendments. Leaders must apply for this approval in writing, which presumably will slow down the process and can easily be forwarded, including to people whose conversations the KPK wishes to record.

 

Worse, the new provisions do not establish any criteria for the Board to apply when determining whether to approve a wiretapping application. The amendments do not even appear to formally restrict how long the Board can take to consider the application. Article 12B(3) says that the “Supervisory Board can give written permission…within 24 hours from when the request is lodged” [my emphasis].

 

While a cursory look at this provision seems to impose a 24-hour time limit, the word “can” means that the Board is not time-restricted. The provision also does not establish any consequences if the Board does not meet within 24 hours or refuses a request without explanation.

 

The Board’s approval is also required for the KPK to exercise other powers, including searches and seizures. Perhaps most important, however, is the power the Board can exert over KPK employees and commissioners. The amendments authorise the Board to both write an ethics code for KPK employees and leaders and establish formal hearings to determine whether the code has been breached. In other words, the Board writes and enforces the rules. It also evaluates the performance of KPK leaders annually.

 

The way the KPK will now operate, then, depends on who sits on this Board and, in particular, whether its members are competent, independent, and have the best interests of the KPK and corruption eradication efforts in mind. This will be up to the president, who chooses the members of the Board (Articles 37E and 69A).

 

While the amendments are certainly disastrous for the KPK and Indonesia’s anti-corruption drive, they could have been much worse if the initial draft proposed by the legislature was adopted. For example, the draft gave the DPR the final say on the Board’s composition, including who became chair of the Board.

 

Given the DPR’s recent track record – particularly its highly questionable choice of new KPK commissioners and the passage of these amendments – it could have been expected to choose Board members sympathetic to its own interests. (That said, having the president choose the members might be no better. After all, he did approve putting these amendments to the DPR.)

 

A provision in the initial draft would also have required all KPK investigators to be “investigators appointed from the national police” and would have required them to be trained by police with only the “cooperation” of the KPK. This is important because the KPK’s success has been widely attributed to its independence, both from the government and from ordinary police and prosecutors, many of whom are considered corrupt. In the end, this provision was not adopted and the amendments now allow for investigators to “come from the police, the public prosecution, other government agencies and/or KPK internals” (see Articles 43 and 45), and for them to be trained by the KPK with police cooperation.

 

Also in the original draft was the requirement that the KPK “coordinate with prosecutors” in respect of prosecutions. This was changed to “perform coordination in accordance with the law” (peraturan perundang-undangan) (Article 12A). While this might appear to be better than the initial provision, it could ultimately have the same effect. Article 12A is particularly vague, because it does not specify the “law” to which it refers. Unfortunately, this opens the door for the government, by regulation, to require the KPK to coordinate with prosecutors, which may undermine the KPK’s independence and the quality of its prosecutions.

 

It is, for example, possible that a future regulation might require the KPK and prosecutors to form teams to prosecute cases together. This might not be necessary, however. If the Board is hostile to the KPK’s operations, it could quite easily force KPK investigators and prosecutors to work in teams with ordinary police or prosecutors. It could even force commissioners to refuse to take on certain corruption cases.

 

The future is definitely looking bleak. But all is not lost. Civil society might be able to muster enough support to pressure Jokowi to change his mind about the amendments. He could reverse them by issuing an emergency law, as his predecessor Susilo Bambang Yudhoyono did to reinstate direct regional head elections in 2014. However, having come this far, Jokowi is unlikely to do this.

 

Civil society organisations are already planning a constitutional challenge to the amendments, which will be heard before the Constitutional Court. It has issued decisions both favourable and unfavourable to the KPK over the years. Much will depend, it seems, on whether the Court can see past the fact that the KPK itself has successfully pursued two of its judges for corruption in recent years and whether the government will comply with its decision in the unlikely event that it invalidates the amendments.