Of Geckos and Crocodiles

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.