Indonesia has a long historical background with corruption. Even before the independence of Indonesia in 1945, the people have engaged in corruption. Some people say that corruption has a part of Indonesian culture. After independence, Indonesia has been trying to eradicate corruption in every different presidential era. The government also has issued several statues in relation to anti-corruption, anti-money laundering and anti-bribery. Further, in 2002, the government and legislature also formed a special commission named the Corruption Eradication Commission (“KPK”) and a specific court for corruption cases.
However, even today, Indonesia still grapples with problems in eradicating corruption. Every day, corruption cases make headlines in the news. Governors, members of the People’s Representative Council, law enforcers, the Speaker of the People’s Representative Council and even the Chief Justice of the Constitutional Court have been accused of and/or arrested for corruption. In 2016, Indonesia is still the 90th least corrupt nation out of 175 countries.[1] Law enforcement officials have not been working effectively, and arresting individuals has not deterred them from engaging in corruption.
This paper describes other options to eradicate corruption by arguing that education, supervision by law enforcers and out-of-court settlement to prevent corruption are more effective than charging people in court. First, this paper explains the problems of corruption eradication. Then, this paper introduces the ideal solutions to eradicate corruption in Indonesia.
The instruments to eradicate corruption in Indonesia look ideal in theory. Indonesia has its own specific commission to eradicate corruption, the trial will be held in the specific corruption court and the anti-corruption laws will be applied. Nevertheless, in practice, Indonesia is scored 37 points out of 100 in 2016, according to the 2016 Corruption Perceptions Index reported by Transparency International.[2] Indonesia’s score still below China and India with 40 points. The law enforcement of KPK arresting the corruptors probably not effective to deter corruption.
What is more, the KPK’s achievement in restitution of stolen state money also was not in proportion with their spending budget.[3] At this moment, KPK facing budget’s problem with the People’s Representative Council because KPK’s expenses for law enforcement was too much in 2016, with spending around US$74,000,000.00 a year.[4]
To solve the problems in regards to eradicate corruption that facing KPK at this moment, I argue that this is the time for KPK to move away from only arresting the corruptors and towards to focus on preventive acts. As we know from the above, one of the duty of KPK is preventing corruption before the corrupt acts occurred and that could be done in many ways such as supervising the strategic transactions or projects that have indication in corruption, and out-of-court settlement to make full restitution of financial state losses.
The first solution is supervising the government strategic transactions or projects directly by KPK and lawyers. A direct supervision by KPK often makes the potential suspect of corruption afraid and reconsider a plan to engage in corrupt acts. For example, KPK could assign a member of their team to give supervision in projects that using state finance. Alternatively, KPK conduct a review before transactions that using state finance. In addition, eradicating corruption in Indonesia should involve the supervision of lawyers. Many international law firms have anti-corruption practice area and in the most of multinational companies, it is common to ask for legal opinion to lawyers prior to perform the transaction that have a potential corruption risk. However, this is not common in Indonesia because most of the government institution and regional government only focus on litigation process after the corruption occurred and do not mitigate the potential risk. This is the time for government and KPK to ask lawyers’ contribution as a law enforcer by involving them in reviewing and supervising the transaction that have a potential corruption risk.
Besides the solution of supervising, a progressive practical solution for corruption eradication in Indonesia is out-of-court settlement with deferred prosecution or non prosecution agreements. Out-of-court settlement is not a preferential treatment for corruptors because the fact that trial proceeding is long, costly and unpredictable. Out-of-court settlement affords more predictability by offering a shorter and less costly proceeding which have little guarantee of a positive outcome than the court proceeding. [5] Out-of-court settlement also provides a crucial solution which focus on stolen assets recovery and forced restitution of financial state losses.
It is not common in Indonesia, but for comparison in the U.S., more than four-fifths of Foreign Corrupt Practice Act (FCPA) cases against companies since 2010 have been settled with deferred-prosecution or non-prosecution agreements, that is, out-of-court settlements in which the prosecution’s case does not undergo the scrutiny of a judge. In the law’s 38 years, only one case against a public company has gone to trial.[6] For example lately, secretary of Health and Human Services, Tom Price, who accused for corruption because he traveled on the charter planes only obligated to reimburse the cost of his seat on private flights.[7] Example in another country, the government of Saudi Arabia offered out-of-court settlement for princes, officials and businessmen that detained on corruption charges.[8] Therefore, I suggest that the corruption cases that should go to the court is limited to the case that have worth equal or less with the law enforcement costs, the goal should be asset or money recovery, not criminal charges.
This paper has argued that the more effective way to eradicate corruption is using a progressive way such as preventive action before the corruption occurred and out-of-court settlement. Using the former way to prosecute the corruptors in court is no longer effective as reflected in the high corruption index of Indonesia. Other than mitigate the potential risk and supervision in strategic transactions, out-of-court settlement also one of the best options for eradicating and preventing corruption. In the future, Indonesia has to develop the self-awareness of their people to avoid the corruption because corruption commonly occurred in most developing countries where the people still not able to control their ego and desires. Self-awareness on corruption generally takes an important role in most developed countries to fight against corruption.
References:
[1] https://tradingeconomics.com/indonesia/corruption-rank
[2] https://tradingeconomics.com/indonesia/corruption-index
[3] http://www.tribunnews.com/nasional/2017/08/21/masinton-soroti-besarnya-biaya-operasional-penanganan-perkara-di-kpk – https://www.merdeka.com/peristiwa/komisi-iii-bandingkan-anggaran-penyelidikan-kpk-dan-kejaksaan-agung.html
[4] https://www.cnnindonesia.com/nasional/20150915193013-12-78980/kpk-ajukan-pagu-anggaran-2016-rp-11-triliun/
[5] http://www.ethic-intelligence.com/experts/283-what-influence-do-deferred-prosecution-agreements-have-on-the-fight-against-corruption/
[6] https://www.economist.com/news/business/21650557-enforcement-laws-against-corporate-bribery-increases-there-are-risks-it-may-go
[7] http://www.cnn.com/2017/10/05/politics/tom-price-personal-check/index.html
[8] https://www.bloomberg.com/news/articles/2017-12-28/two-saudi-princes-are-said-to-be-released-after-graft-probe