The Politics of Eradicating the KPK
Over the past few weeks, we have been the subject of controversial coverage on the candidates of the KPK leadership and public opposition to the revision of the KPK Law, which shows no signs of abating.
"Do you know that becoming a politician is not easy? Especially if you want to be a politician that stands for the public interest.” –Soekarno, 1964
Over the past few weeks, we have been the subject of controversial coverage on the candidates of the Corruption Eradication Commission (KPK) leadership and public opposition to the revision of the KPK Law, which shows no signs of abating. The KPK logo on the “Red-and-White” building has been covered with a black cloth as a symbol of protest against the efforts to undermine the anticorruption drive.
Almost immediately afterwards, we were shocked by news on the departure of foreign investors from Indonesia to invest elsewhere, and our envy at India\'s progress in launching its moon mission. Meanwhile, it appears that we still haven\'t moved on. We advance and then slip backward.
We have created an anticorruption institution to then weaken and dissolve it. History has recorded our corruption eradication journey, which has been full of the drama surrounding the formation and extinction of anti-graft institutions since Indonesian independence. At least the KPK’s journey of nearly two decades has been colored by its struggle to maintain its independence against cooptation. It has not been easy, but this is the choice the KPK has made to survive and to retain the people’s trust.
Bung Karno’s advice to Guntur Soekarno, which was given in 1964 at Merdeka Palace as recorded in Bung Karno: My father, my friend, my teacher, reminded me once again about Bung Karno\'s struggle and its relevance to national politics. It reminds us all not to stray from the people’s politics – politics that upholds the people\'s aspirations and hopes. The people’s politics in the present day wants to eradicate corruption completely. Unfortunately, their public representatives prefer not to understand their wish for a stronger KPK, a desire that has been confirmed by the public actions of intellectuals, the people, communities and the silent majority in all corners of the country.
Civil society’s suspicion that deliberate attempts are afoot to weaken the anticorruption drive is understandable. Systematic efforts are being made to weaken the KPK through the proposed revisions to the KPK Law, the Criminal Code Bill and the controversial process of selecting the KPK leadership. The proposed revisions to the existing KPK Law will certainly diminish the KPK\'s law enforcement authority and make it susceptible to external control. In fact, the KPK was established as a product of reform, designed to be a national institution that is independent of any branch of government as stipulated in Article 3 of the KPK Law. The law confirms the KPK as a national institution, not a government agency.
There are several reasons why the revised KPK Law will diminish the KPK’s independence. First, the KPK will no longer be permitted to appoint or recruit its investigators. This is an effective tool to control – even stunt – the KPK\'s activities, because it creates a dependency on other institutions. The proposed revision mandates that the National Police appoint KPK investigators from among its ranks. Likewise, KPK investigators must hail from the police or the civil service, including the prosecutors’ office. The current investigators that the KPK recruited independently will be automatically deemed redundant and void.
These investigations are currently gathering evidence in ongoing cases. As a result, these ongoing cases that the KPK’s independent investigators are handling will be dropped. The KPK\'s nearly 20-year effort to develop professional human resources and to strengthen institutional integrity will soon be naught.
The KPK investigative and interrogational processes have been running effectively as a direct result of its open, professional recruitment system that prioritizes the integrity and professionalism of candidates who can come from all backgrounds.
On the other hand, that the KPK has been lawful and aboveboard in appointing its investigators is beyond legal doubt, as the Constitutional Court has determined in several material tests on their legal basis. However, the proposed revisions will make it difficult to apply the concept of independence. It can only be imagined that the KPK leadership will find it difficult to instill institutional loyalty among its employees. The KPK, as a state institution, will gradually be reduced to a government body because it must depend on the executive for its decisions.
On observing overseas practices, the anticorruption institutions of several countries in the world implement open recruitment for its investigators and do not recruit from the police. This includes the CPIB in Singapore, the ICAC in Hong Kong, the MACC in Malaysia, the ACB in Brunei Darussalam, the Anticorruption Commission in Timor Leste, the NACC in Thailand and the EFCC in Nigeria, and many more.
Second, it has been proposed that KPK employees be registered as state civil servants (ASN). As a result, 85 percent of the current 1,638 employees at the KPK will be given the ASN status of government employees under work agreements (P3K), similar to temporary or contract employees. This has the risk of undermining the independence of KPK employees in handling cases that involve government agencies, because their promotion, supervision and even mutation bonuses will fall under interministerial coordination; so as ASN, they will be susceptible to governmental control and interference.
On observing overseas practices, the anticorruption institutions of several countries in the world implement open recruitment for its investigators and do not recruit from the police.
This is not in alignment with the principle and spirit of an independent KPK as stipulated under human resource management in the Jakarta Statement on the Principle of Anticorruption Agencies of 2012, a reference document for the establishment of anticorruption institutions around the world.
Third, the KPK’s wiretapping activities – which are based on the lawful interception standards of the European Telecommunications Standards Institute (ETSI) and are accountable to third-party auditors – will be replaced by a requirement to first obtain permission from the Supervisory Council. The members of the Supervisory Council, an oversight committee, is to be selected by the DPR from a list of candidates the President proposes, and so it carries the potential for a conflict of interest in fulfilling its duties and the potential for leaking information. The KPK requires speed and tight security of high-level information in its operations while pursuing legal prosecution. Wiretapping is vital to planning and carrying out sting operations (OTT) in the majority of bribery cases.
Furthermore, the KPK must also obtain the Supervisory Council’s approval in its search and seizure operations for gathering evidence.
The proposed revisions to the KPK Law also restrict wiretapping to three months, whereas the KPK’s investigative experience shows that a much longer time is required to carefully plan and execute investigations into sophisticated corruption cases to prevent wrongful arrests.
The KPK’s wiretapping ability has long been a target of the DPR’s criticism, even though the KPK is not the only law enforcement institution that is authorized to carry out interception activities. The National Police, the Attorney General\'s Office, the National Intelligence Agency (BIN), the National Counterterrorism Agency (BNPT) and the National Narcotics Agency (BNN) are all authorized to conduct wiretapping.
Even the FBI of the United States can take decades to investigate and solve complex cases.
Fourth, the KPK is permitted to drop cases categorized as active investigation (SP3). The KPK upgrades case statuses to active investigations under a carefully regulated process because it is not allowed to cease active investigations or ongoing legal processes. This new provision would reduce the KPK’s case management standards. Terminating active investigations and ongoing legal processes that are not completed within the stipulated one-year time frame will leave cases open to external intervention, especially as it is nearly impossible to solve major cases that involve international actors in one year. Even the FBI of the United States can take decades to investigate and solve complex cases.
Fifth, it revokes the KPK’s authority to investigate minor cases that cause public disruption by limiting its investigative purview to cases that incur losses of more than Rp 1 billion to the state. In fact, investigating cases that incur state losses is already stipulated in Articles 2 and 3 of the Corruption Crimes Law. The new provision restricts the KPK’s ability to mount sting operations in bribery cases, and the KPK will become dependent on the Supreme Audit Agency in handling such cases.
The DPR\'s plans to revise the KPK Law seem to focus primarily on weakening the KPK in its enforcement function. This contradicts the DPR’s stance on strengthening corruption prevention. Regarding corruption prevention, the revised KPK Law only regulates the wealth report of state officials (LHKPN) by revoking the KPK\'s access to LKHPNs, which has been an effective tool in supporting the KPK\'s enforcement and prevention activities.
World’s leading anti-graft body
In addition to the phenomenal volume of cases it has handled, the KPK’s hard work and independence over the last 17 years has raised Indonesia’s Corruption Perception Index (CPI) from 17 (out of 100) in 1999 to 38 in 2018 – an increase of 21 points. This is the highest and fastest increase in CPI in the world, even beating out China with its capital punishment for corruptors. Transparency International Indonesia’s data for the same year shows that the CPI for China increased by a mere 5 points, Nigeria by 10 points and Malaysia by only 4 points.
This is a critical moment for President Jokowi to maintain the positive anticorruption trend. The commotion and controversy surrounding the attempt to undermine the country’s anticorruption drive and the KPK can reverse the CPI trend. It is not possible to advance Indonesia through the development of superior infrastructure and quality human resources by undermining corruption eradication. Indonesia’s reduced attractiveness to investors does not merely involve the licensing issue, but legal uncertainty due to increasing corruption in business, both central and regional.
The KPK marked another milestone on 26-27 Nov. 2012, when it led an initiative that gathered 45 leaders of anticorruption institutions and international institutions like the United Nations and the OECD, as well as dozens of anticorruption experts and representatives of global anticorruption networks, to draft and sign an agreement in Jakarta: the Jakarta Statement on the Principles of Anticorruption Agencies.
Those gathered agreed on the guiding principles for establishing a country’s anticorruption institution. These principles provide import guidelines on safeguarding anticorruption institutions from undue influence, protecting their employees from criminalization in the course of their duties and selecting the leaders of an anticorruption institution, as well as provisions on adequate resources, legal sufficiency, independence and many other important matters.
The meeting was held to address the fact that anticorruption enforcers all over the world faced extraordinary resistance from corruptors and at times from their governments through state capture – the corrupt practice of individual interests influencing state legislation. The Jakarta Principles has been agreed and adopted by the International Association of Anticorruption Authorities (IAACA) and through UN resolutions in several meetings of the United Nations Anticorruption Convention (UNCAC). The Jakarta Principles complies with Articles 6 and 36 of the UNCAC that guarantee the existence of anticorruption institutions.
It is sufficient to simply maximize its existing authority in the prevailing law.
The Jakarta Principles needs greater awareness in Indonesia. The KPK referred to many anticorruption examples and models from countries around the world in formulating the principles. Many countries appreciate the KPK as an anticorruption institution, and the agreed principles closely reflect the institutional model of Indonesia’s KPK. This fact proves that the KPK is performing well and is a global leader in anticorruption and negates the notion that the KPK has failed to reduce corruption in Indonesia because of a lack of deterrence. Therefore, it is sane and rational to reject the proposed revisions to the KPK Law that will effectively weaken it. It is sufficient to simply maximize its existing authority in the prevailing law.
The sky above the KPK\'s “Red-and-White” building is filled with dark clouds as it awaits President Jokowi\'s decision. I close the book in my hand and imagine Bung Karno visiting the KPK building today to greet us by saying, "Continue your struggle, KPK, don\'t give up! Colonialist corruption." Indeed, we are acutely and sorely missing the presence of Bung Besar (the great leader) who was close to the people. Our hope is like that of the Malaysian people, who longed for a Mahathir Mohamad when the country was dominated by corruption and hegemony. The hope is still there.
Giri Suprapdiono, Education and Community Service Director, Corruption Eradication Commission (KPK)