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A wolf in sheep's clothing

A wolf in sheep's clothing
Published: Apr 02, 2012

Simon Butt

An anti-corruption mural in JakartaAn anti-corruption mural in Jakarta
Jemma Parsons

In November 2009 Indonesia's national parliament ordered the Supreme Court to establish regional anti-corruption (Tipikor) courts – one in the district court of each provincial capital – to join the central anti-corruption court in Jakarta, operating since 2004. At first glance, this might have seemed like a good idea. The Jakarta Tipikor court had performed remarkably well. It had convicted in every case it had tried – around 150 of them. Those convicted included serving and former parliamentarians, former ministers, Bank Indonesia officials, senior local government officials, law enforcement officials, even the father of the daughter-in-law of the President. This was an extraordinary achievement in a country with notoriously high levels of corruption. It seemed that the tides of impunity – the norm for those with political connections or with the money to bribe their way out of trouble – were turning. If these successes could be replicated outside of Jakarta, then surely significant progress could be made in the ‘fight against corruption’.

The regional Tipikor courts began operating in early 2011, but by October their reputation was in tatters. They had begun acquitting defendants in corruption cases and had come under fire from civil society organisations, notably Indonesian Corruption Watch. In early November 2011, the Chair of Indonesia's Constitutional Court, Moh Mahfud MD, called for the regional Tipikor courts to be closed down. Ironically, it had been the Constitutional Court itself – albeit under different leadership – that paved the way for the establishment of the provincial courts in the first place.

Jakarta leads the way

The Anti-Corruption Commission (KPK) and the Jakarta Tipikor court were conceived in the reformist fervour of the early post-Suharto period. Both were based in Jakarta, but had jurisdiction over corruption cases Indonesia-wide. They were initially established so that corruption cases could be handled without the involvement of ordinary police, prosecutors and judges, many of whom were thought to be corrupt. The KPK was granted broad powers to shut out ordinary police and prosecutors from significant corruption cases. The commission could investigate and prosecute cases on its own, as well as take control of cases it thought police or prosecutors were mishandling.

All of KPK’s prosecutions were brought before the Jakarta Tipikor court, which had its own unique procedures. Most significantly, five judges presided over the corruption cases, two more than the three present in most other courts. Of these five judges, three were so-called ‘ad hoc’ judges, drawn from the ranks of lawyers, academics and others with legal or relevant experience, to sit alongside the two ‘career’ judges. By having more ad hoc judges than career judges on each panel, it was hoped that the court’s decisions would not be tainted by the corruption suspected of many career judges. Convictions could still be obtained if the majority of the five presiding judges so decided. Because the ad hoc judges did not have judicial experience, it was important to involve career judges to help run proceedings and write judgements.

Then, in 2006, the Constitutional Court ruled that the establishment of the Jakarta Tipikor court had breached the Constitution because it had created a ‘parallel’ or ‘dual’ legal system. Cases that KPK decided not to pursue continued to be handled by ordinary police prosecutors and courts. Anti-corruption court procedures also differed from those of ordinary courts, not least in the number of judges presiding and the composition of the bench. According to the Constitutional Court, this parallel system undermined an important Indonesian constitutional principle: equality before the law. In other words, the Constitutional Court felt that the odds were stacked against defendants whose cases were taken up by the KPK.

Some observers agree that the KPK and Jakarta Tipikor court have been overzealous in their handling of corruption cases. In its defence, the KPK and its supporters maintain that the KPK has highly skilled investigators and prosecutors that are superior to police in the collection and handling of evidence. Some of its commissioners and employees may have been implicated or convicted of impropriety themselves but, overall, it is serious about its tasks and, for the most part, maintains a high level of professionalism and integrity. Even so, one would expect the KPK to have made at least some errors that should have led to an acquittal. The main concern is that the Jakarta Tipikor court has ignored the presumption of innocence – an important universal human right – in its efforts to maintain its conviction rate. Unfortunately, the only people to complain about it have been defence lawyers who have lost cases in the court. Legal NGOs have remained largely silent on this issue, presumably because they don’t want to be accused of being anti-reformist.

Spreading into the regions

Ultimately, the Constitutional Court's solution to the problem was to give Indonesia's national parliament a three-year deadline to enact a new statute on the Tipikor court that gave the court jurisdiction over all corruption cases, not just those pursued by the KPK. Parliament responded by passing the 2009 Tipikor Court Law, which granted exclusive jurisdiction over corruption cases to the Tipikor court. But it didn't stop there. It also decided to create the new provincial courts.

The new Tipikor courts were more or less like their Jakarta counterpart, but with some important differences. For example, the chief judge could determine the ratio of ad hoc to career judges that would sit on each case. Also, ordinary prosecutors were permitted to bring cases before them – something that had previously been the exclusive domain of the KPK.

In percentage terms, the regional Tipikor courts acquittal rate is still low. According to figures cited by the Chief Justice of the Supreme Court, 142 cases had been lodged with the Surabaya Tipikor court since its establishment. Convictions were handed down in 60 of these cases and acquittals in 12. In Bandung, 93 cases had been registered, of which 46 were convictions and four were acquittals. According to Hukumonline, Indonesia's leading legal news service, the Samarinda Tipikor court has acquitted 14 defendants, while Tempo magazine reports that the Tipikor court in East Kalimantan acquitted 44 local parliamentarians indicted for corruption. The conviction rate is much higher than in normal courts – where, according to Indonesian Corruption Watch estimates, around 50 per cent of corruption cases have ended in acquittals – but nowhere near the conviction rate in Jakarta.

The main problem, according to the pundits, is that there simply aren't enough good ad hoc judges to go around. Supreme Court recruitment rounds have failed to attract enough high-quality candidates, and no doubt some candidates had been put off by reports that ad hoc judges had not been paid even after working for several months. There have also been allegations that some regional Tipikor court ad hoc judges have previously been embroiled in corruption scandals before their appointments, though none were convicted. Others lack the requisite knowledge and experience. As a result, many chief judges have been forced to allocate only two ad hoc judges to most cases, leaving the final decision in the hands of three career judges. In other words, Indonesia now appears to be moving back to the days before the KPK and the Jakarta Tipikor court, when ordinary judges – perhaps tainted by corruption themselves – had the final say in corruption cases.

A conspiracy?

Why did the national Parliament enact a law that so seriously undermines the efficacy of the Tipikor court and the KPK? The answer seems to be quite simple. While the national parliament was deliberating the new Tipikor court statute in 2009, the KPK was investigating a corruption scandal in which many parliamentarians were implicated, linked to allegations they had received travellers cheques to appoint Miranda Goeltom as Bank Indonesia’s deputy governor in 2004. By the time the draft came up for enactment, the KPK had named around 30 parliamentarians, claiming to have many more in its sights. A large proportion of parliamentarians, then, would have had a strong interest in weakening the KPK and the Tipikor court. If this conspiracy theory is correct, then we can expect the national parliament, and others, to continue their attacks.

Perhaps, though, there is just too much emphasis on the conviction rate in criticisms of the regional Tipikor courts. Acquittals are not always a bad thing. As in many other countries, defendants in Indonesia are supposed to enjoy the presumption of innocence. The main point of holding a trial is to determine whether enough evidence exists to convict. Evidence is often hard to come by in corruption cases. Because of the nature of the crime, perpetrators will go to great lengths to cover their tracks. It may well be that regional Tipikor courts are finding genuine fault with the cases being presented by prosecutors and are unable, in good conscience, to convict.

Simon Butt ( teaches law at the University of Sydney. Simon is the author of Corruption and Law in Indonesia (Routledge 2011).

Inside Indonesia 108: Apr-June 2012

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