00074918.2011.619051
Bulletin of Indonesian Economic Studies
ISSN: 0007-4918 (Print) 1472-7234 (Online) Journal homepage: http://www.tandfonline.com/loi/cbie20
Anti-corruption reform in indonesia: an obituary?
Simon Butt
To cite this article: Simon Butt (2011) Anti-corruption reform in indonesia: an obituary?,
Bulletin of Indonesian Economic Studies, 47:3, 381-394, DOI: 10.1080/00074918.2011.619051
To link to this article: http://dx.doi.org/10.1080/00074918.2011.619051
Published online: 16 Nov 2011.
Submit your article to this journal
Article views: 1773
View related articles
Citing articles: 4 View citing articles
Full Terms & Conditions of access and use can be found at
http://www.tandfonline.com/action/journalInformation?journalCode=cbie20
Download by: [Universitas Maritim Raja Ali Haji]
Date: 18 January 2016, At: 19:19
Bulletin of Indonesian Economic Studies, Vol. 47, No. 3, 2011: 381–94
ANTI-CORRUPTION REFORM IN INDONESIA:
AN OBITUARY?
Simon Butt
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
University of Sydney
Indonesia’s Anti-Corruption Court had until recently convicted all the defendants
brought before it by the Corruption Eradication Commission. Many of these were
well-known and politically powerful igures. Yet both the Court and the Commission are under threat. Between February and October 2011, the Anti-Corruption
Courts issued more than 20 acquittals, and on 11 October 2011, for the irst time, a
defendant prosecuted by the KPK itself was acquitted. This article traces the history
of the Court and the Commission and explains why their fall may be imminent.
Both institutions have been the targets of efforts to discredit and hobble them, apparently orchestrated by people the Commission has investigated. If the current
trend continues, the Anti-Corruption Court and the Corruption Eradication Commission may soon join the growing list of Indonesia’s failed anti-corruption initiatives.
Keywords: corruption, governance, rent seeking, bribery
INTRODUCTION
Before February 2011, Indonesia’s Anti-Corruption Court (Pengadilan Tindak
Pidana Korupsi, or Tipikor Court) had convicted all 250 or so defendants that the
Corruption Eradication Commission (Komisi Pemberantasan Korupsi, or KPK)
had brought before it. The Tipikor Court had maintained this 100% conviction rate
in cases involving high-proile and politically powerful igures, including parliamentarians, ministers, provincial governors and Bank Indonesia oficials – even
Aulia Pohan, a member of President Susilo Bambang Yudhoyono’s extended family. Many judge the Court’s success by reference to this conviction rate. Yet success in this sense may be slipping from the grasp of the Tipikor Court and the
KPK. In February 2011 the Jakarta Tipikor Court handed down its irst acquittal.
By the beginning of October 2011, the Surabaya Tipikor Court alone had acquitted
21 defendants, and the Bandung Tipikor Court acquitted four defendants between
August and October 2011.
In this article, I trace the rise of the KPK and the Tipikor Court and explain
why their fall may be imminent. Both institutions have been the targets of wellorchestrated efforts to discredit and hobble them, launched by some of those the
KPK has investigated. The Constitutional Court – probably inadvertently, as discussed below – sowed the seeds for their weakening in 2006. More signiicant,
however, have been events occurring since early 2009. In that year, some police,
ISSN 0007-4918 print/ISSN 1472-7234 online/11/030381-14
DOI: 10.1080/00074918.2011.619051
© 2011 Indonesia Project ANU
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
382
Simon Butt
prosecutors and parliamentarians, themselves under threat of KPK investigation
or connected with others who were, pushed back against the KPK and the Tipikor
Court.
For their part, police and prosecutors sought to discredit and remove individual
KPK commissioners. In this endeavour, they hold powerful trump cards: police
can have KPK commissioners suspended simply by charging them; prosecutors
can have them dismissed merely by bringing them to trial. In 2009, police charged
the KPK chair with murder and two commissioners with misuse of power, triggering the suspension of all three. The chair was convicted following a highly
questionable trial, but the commissioners were released after proving that they
had been framed.
By contrast, parliamentarians sought to weaken the Tipikor Court and the KPK
by legislatively removing some of the features responsible for their success. Perhaps the most signiicant of these features were the KPK’s ability to choose the
cases it handles (thereby excluding ordinary police and prosecutors from those
cases) and the Tipikor Court’s use of ad hoc (non-career) judges. Legislative
efforts to weaken these and other features have borne fruit. In 2009, the national
parliament passed Law 46/2009 on the Tipikor Court; I will show that the Court’s
irst acquittal can be attributed directly to this Law. In 2011, parliamentarians proposed amendments to other statutes which, if passed, are likely to reduce the eficacy of the Tipikor Court and the KPK further, and may even remove the KPK’s
power to prosecute.
THE INSTITUTIONAL DESIGN OF THE KPK AND THE TIPIKOR COURT
Law 30/2002, the statute that established the KPK, made it institutionally independent of government (art. 3). The Law authorises the KPK to investigate and
prosecute most corruption cases itself and to take over corruption investigations
and prosecutions from police and prosecutors in some circumstances (arts 8 and
9). It gives the KPK investigative powers that the police lack. These include powers to wire-tap suspects’ phones without seeking court approval, to freeze bank
accounts and to issue travel bans (art. 12). The Law also prohibits the KPK from
dropping a case once it has progressed beyond initial investigations – a restriction aimed at preventing prosecutions from being dropped in return for bribes
(Fenwick 2008). The KPK’s ive commissioners are selected through rigorous
and transparent processes (arts 30 and 31) (Schütte 2011, in this issue). And, even
though KPK investigators and prosecutors are secondments from the police force
and the public prosecutor’s ofice, strong competition for positions and the use of
private-sector recruitment services have ensured that, with some notable exceptions, the integrity and professionalism of appointees have rarely been brought
into question (Bolongaita 2010: 16–17).
A signiicant feature of the KPK’s institutional design has been its ability to
exclude ordinary law enforcement institutions from handling particular corruption cases, either by initiating an investigation itself, or by taking over a case that
police or prosecutors have already begun investigating or prosecuting (Fenwick
2008; Bolongaita 2010: 16–17). This has been crucial to the anti-corruption effort,
because Indonesia’s general law enforcement institutions are perceived to be
largely ineffective in pursuing corruption allegations (Assegaf 2002).
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
Anti-corruption reform in Indonesia: an obituary?
383
One cause of their ineffectiveness is probably incompetence – in detecting corruption, handling and preparing evidence and proving allegations at trial, for
example. To be fair, convictions are notoriously dificult to obtain in corruption
cases even in developed and well-resourced states. Evidence is often dificult to
uncover, because perpetrators usually go to great lengths to prevent detection
(Wagner and Jacobs 2008: 18; Pearson 2001: 39; ADB and OECD 2006: 17).
However, the primary reason for the ineffectiveness of general law enforcement institutions is likely to be that many, if not most, Indonesian law enforcers are themselves corrupt. Corruption is so endemic within the justice system
that the system is often referred to as the ‘justice maia’ (maia peradilan). In most
types of cases, including corruption cases, police can be ‘persuaded’ to drop an
investigation, lose important evidence or charge a suspect with a lesser offence. In
return for a bribe, prosecutors often drop a prosecution, present their case poorly
at trial or seek a lenient penalty (Aspandi 2002: 33; Fenwick 2008: 406; Yunto 2008;
Assegaf 2002: 130). The result is, in essence, immunity for those whose cases are
handled by ordinary law enforcement institutions and who are willing and able
to bribe their way out of trouble.
The Tipikor Court was established and located within the Central Jakarta District Court with the sole function of hearing the cases that the KPK prosecutes
(art. 53). Under the 2002 KPK Law, each case was to be presided over by a ivejudge panel, comprising two career judges drawn from the general courts and
three ’ad hoc judges’ (art. 58). These are legal experts – usually academics, legal
practitioners and retired judges – employed to sit on Tipikor Court trials. Appeals
were available to similarly constituted benches in the Jakarta High Court and the
Supreme Court (arts 59–60).
The key to the Tipikor Court’s success has probably been this use of three ad
hoc judges on each ive-judge panel. Although there are exceptions, Indonesian
general court judges are not known for high levels of integrity and competence,
and they have developed a reputation for acquitting or imposing short sentences
in corruption cases (Butt 2009b). Indonesia’s most prominent anti-corruption nongovernment organisation, Indonesia Corruption Watch (ICW), claims that general
court career judges acquit in around 50% of corruption cases (Diansyah 2009).
By contrast, ad hoc judges are considered more likely to be professional because
they do not work within the existing judiciary and are therefore not tainted by its
practices. Empanelling a majority of ad hoc judges appears to have been critical to
the Tipikor Court’s maintenance of its 100% conviction rate. Some of its decisions
have been split between the ad hoc and the career judges, with the majority ad
hoc judges holding sway and convicting the defendant, and the minority career
judges declaring that they would have acquitted or imposed a lower sentence
(Fenwick 2008: 414).
The case of the Joint Investigating Team for Corruption Eradication (Tim
Gabungan Pemberantasan Tindakan Korupsi, or TGPTK) brings into sharp relief
the need to bypass ordinary law enforcers in corruption cases. The TGPTK was
formed within the Attorney General’s Ofice in 2000 to help with dificult-to-prove
corruption cases. Like many pre-KPK anti-corruption initiatives, the TGPTK had
limited powers (Assegaf 2002; Hamzah 1984). It could only coordinate investigations and prosecutions that ordinary police and prosecutors conducted. Its inability to investigate or prosecute on its own initiative was seen as its main weakness
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
384
Simon Butt
(Assegaf 2002). The TGPTK oversaw the completion of only around 10% of the
cases submitted to it (Assegaf 2002: 135), leading its head, former Supreme Court
judge and respected reformist Adi Andojo Soetjipto, to resign in frustration in
2001 (Jakarta Post, 28/3/2001).
While the TGPTK was only ever intended to remain until the KPK was established, it did not last even as long as that. When in 2001 it began investigating
allegations that Supreme Court judges had received bribes to ix cases, the judges
responded by challenging, in the Central Jakarta District Court, the jurisdiction
of the TGPTK to investigate them. They were successful, albeit on highly dubious
legal grounds, and the investigation into them was declared invalid. The judges
also sought, before the Supreme Court, a judicial review of the government regulation that established the TGPTK. Again they were successful despite questionable
legal arguments (Butt and Lindsey forthcoming). The Supreme Court invalidated
the regulation, thereby disbanding the TGPTK. The judges were therefore able to
escape scrutiny completely, by appealing to their inferiors in the District Court
and their brethren on the Supreme Court. This case is still often cited to explain
why law enforcement institutions cannot be trusted to handle corruption cases
and, in particular, how they have ‘guarded their own’ in the face of corruption
allegations (Butt and Lindsey forthcoming).
THE KPK UNDER CHAIR TAUFIQURRAHMAN RUKI (2004–08)
From its irst prosecution in 2004 until the end of 2007, under the leadership of
Tauiqurrahman Ruki, the KPK for the most part pursued mid-level national oficials and mid-level to senior regional government oficials, securing over 80 convictions in the Tipikor Court (table 1).
However, not all observers heralded the success of the KPK – Tipikor Court
‘team’. Some lawyers complained that the Tipikor Court must have ignored the
presumption of innocence to have maintained its conviction rate, and that its
20 judges lacked the judicial skills needed to preside over trials and write decisions (Hukumonline 2009; Syamsuddin 2007). Others pointed out that the overall impact of the KPK and the Tipikor Court was low: the KPK prosecutes and
the Tipikor Court decides less than 5% of corruption cases Indonesia-wide (Butt
2011: 47). Yet perhaps the most sustained criticism – commonly levelled by anticorruption activists and the media – was about the KPK’s case selection. The criticism was that the KPK chose only ‘easy’ cases, avoiding the ‘big ish’ – including
former President Soeharto, his family and inner circle, senior military personnel
and those involved in the bank liquidity scandals in the aftermath of the 1997
inancial crisis (Butt 2009b).
While on a general level this criticism has some merit, it neglects the fact that
the KPK was a new institution operating in a hostile political environment and still
inding its place. It also overlooks several important convictions, including those
of former national ministers and parliamentarians and the most senior of local
government oficials. Most importantly, by keeping clear of the ‘big ish’ – those
with strong ‘live’ political connections – the KPK avoided the powerful resistance
that these people could muster and, potentially, a fate similar to that of the TGPTK.
Starting with smaller cases allowed the KPK to build momentum, experience,
expertise and public support before tackling the cases the critics highlighted.
Anti-corruption reform in Indonesia: an obituary?
385
TABLE 1 Corruption Convictions by Defendant Category, 2004–10
Ofice Held by Defendant
Year of Conviction at First Instance
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
2004
Parliamentarians
(national and local)
Heads of ministries or
institutions
Ambassadors
Commissioners
Governors
Heads of local government
Civil servants a
Judges
Private sector defendants
Other
Total
2005
2006
2007
2
1
1
3
2
9
2
2
3
15
1
4
6
23
5
1
29
1
4
2
1
2008
2009
2010
6
8
27
1
1
2
6
10
1
1
2
5
22
1
2
4
14
3
2
26
12
4
54
11
4
44
1
4
12
1
8
9
65
a Including public prosecutors and police.
Source: KPK (2011).
During this period, some of those the KPK had prosecuted and the Tipikor
Court had convicted attempted to ‘push back’ against both institutions. Resistance was, however, limited largely to challenges, lodged with Indonesia’s
Constitutional Court, to the constitutionality of aspects of the KPK Law and
Indonesia’s 1999 Anti-Corruption Law (amended in 2001). Though some of
these challenges were successful, they did not signiicantly affect the way the
KPK and the Tipikor Court worked or hinder their performance (Butt 2009a),
with one critical exception.
In a 2006 case, the Constitutional Court decided that the Tipikor Court was
itself unconstitutional because its establishment had created a dual system. Indonesia’s general courts continued to hear the cases that the KPK decided not to
prosecute, and this, the Court found, breached the constitutional right to equality
before the law.1 Implicit in the Constitutional Court’s reasoning was that conviction rates were higher in the Tipikor Court than in the general courts, to the disadvantage of defendants the KPK chose to pursue (Butt 2009a). The Constitutional
Court gave the national parliament three years to pass a new statute that gave the
Tipikor Court exclusive jurisdiction over corruption cases. Parliament met this
deadline, but with a statute that, in ways explained below, signiicantly weakens
the KPK and the Tipikor Court.
1 Constitutional Court Decision No. 012-016-019/PUU-IV/2006.
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
386
Simon Butt
THE KPK UNDER ANTASARI AZHAR (2008–09)
Under the leadership of Antasari Azhar (2008–09), the KPK began targeting
some of the ‘big ish’ that it had previously avoided in the parliament, public
prosecution and the police force (table 1). This, it seems, drew more intense
retaliation – this time from or through police and prosecutors. In 2009, the KPK
had been investigating senior law enforcement oficials. Perhaps the most prominent was Susno Duadji, a former chief of criminal investigations with the national
police. The KPK investigated him for planning, in return for a bribe, to help a
depositor retrieve funds illegally from the ailing Bank Century – a bank that the
national government had bailed out in November 2008 to the tune of Rp 6.7 trillion (approximately $524 million) (Jansen 2010).
Though pursuing corruption cases involving law enforcement institutions is
clearly within the KPK’s mandate, targeting police and prosecutors invites danger for KPK commissioners. Under the KPK Law, the president must suspend
any KPK commissioner formally charged with a crime (art. 32(1)), and remove
the commissioner once he or she is prosecuted (art. 32(2)) – regardless, it seems,
of whether the commissioner is in fact tried or convicted. Though apparently
designed to safeguard the KPK’s reputation, these provisions give police and
prosecutors tremendous leverage over the KPK. Police and prosecutor decisions
to charge and prosecute are unilateral and largely unreviewable.
THE FRAMING OF BIBIT AND CHANDRA – ANTASARI TOO?
Police and prosecutors used these powers from early March 2009 against the
KPK chair, Antasari Azhar, who was arrested in March 2009, and from mid-2009
against two other KPK commissioners, Chandra Muhammad Hamzah and Bibit
Samad Rianto.
Police arrested Antasari for ordering the murder of Nasruddin Zulkarnaen, the
husband of a woman with whom Antasari allegedly had a sexual encounter. Nasruddin was shot while travelling home in his car. Police and prosecutors alleged
that Nasruddin had attempted to blackmail Antasari, threatening to reveal the
encounter to the media unless Antasari helped him obtain business opportunities
and a promotion.
Meanwhile, in September 2009 police arrested Bibit and Chandra for abusing
their powers to issue and revoke travel bans. The only evidence they could produce to substantiate the charges was a travel ban document that was later proven
to be a fake. Yet because police had formally charged Bibit and Chandra, the president still suspended both commissioners under art. 32(1) of the KPK Law. Bibit
and Chandra knew that they would be dismissed under art. 32(2) once a prosecution commenced. In an attempt to prevent this, they challenged art. 32(2) in the
Constitutional Court, arguing that it contravened their constitutional right to the
presumption of innocence.
The Court’s proceedings were broadcast live on television and streamed online.
During the irst hearing of the case, the Constitutional Court allowed the KPK to
play wire-tapped phone conversations between suspects the KPK was investigating and senior law enforcement oficials. The recordings clearly revealed a plot to
frame Bibit and Chandra. Voices identiied on the tape included the then Deputy
Attorney General, Abdul Hakim Ritonga; the former Head of Intelligence at the
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
Anti-corruption reform in Indonesia: an obituary?
387
Attorney General’s Ofice, Wisnu Subroto; and Susno Duadji. The Court unanimously declared that Bibit and Chandra had been framed and should immediately be released and re-instated.2 The ‘Team of 8’ – a fact-inding team that
President Susilo Bambang Yudhoyono had himself established to investigate the
case – drew similar conclusions. Soon afterwards, prosecutors issued an oficial
Declaration of Cessation of Prosecution (SKPP) for both Bibit and Chandra. Susno
and Ritonga were forced to resign (Dhyatmika et al. 2009; Haryadi 2009).
Antasari Azhar’s trial began on 8 October 2009 in the South Jakarta District
Court. The Court accepted the chain of events put forward by the prosecution, to
which Sigid Haryo Wibisono, a businessman and the chair of the Merdeka daily
newspaper, testiied. Sigid attested that Antasari met with him and Williardi
Wizar, a former South Jakarta police chief, and asked them to help him ‘pacify’
(mengamankan) threats Nasruddin had made against him. Sigid also testiied that
Wizar had then contacted others to arrange and perform the killing. The Court
also accepted evidence from Sigid that Antasari had promised to repay the ‘operational funds’ for the murder that Sigid initally provided. In early 2010, Antasari
was convicted and sentenced to 18 years in prison.3
Antasari’s trial was highly questionable: no credible evidence was adduced
pointing to his guilt (Butt 2011: ch. 5). Most problematic was the testimony of the
prosecution’s own forensic and ballistic expert, Abdul Munim Idris. He testiied
that the gun the prosecution had produced as the murder weapon could not ire
the bullets found in the victim and that it was in such poor condition that it could
not have been used in the murder. Idris’s testimony was not challenged at trial,
yet the Court simply ignored it. However, the authenticity of the murder weapon
was surely central to the prosecution’s case, as it is in most murder trials. It thus
seems inconceivable that an objective panel of judges could have found Antasari
guilty ‘legally and convincingly’ – the Indonesian equivalent of ‘beyond reasonable doubt’ (Butt 2011: ch. 5). The trial smacks of a set-up to remove Antasari,
under whom the KPK had become signiicantly bolder. Antasari’s appeal to the
Jakarta High Court was unsuccessful.
Despite the exposure of Bibit and Chandra’s framing, the widespread public
perception that politically strong igures had the KPK in their sights, and the
paucity of evidence adduced at trial to support his conviction, Antasari enjoyed
little public support. Very few openly expressed the view that he, too, might
have been framed. Some anti-corruption reformists I interviewed in Jakarta
voiced doubts about his integrity: allegations of corruption surrounded both his
appointment as KPK chair and cases he had handled in previous prosecutorial
posts (Handayani, Kustiani and Nilawaty 2009) (though there is much to counteract these doubts, not least the KPK’s greater focus on corruption by ‘bigger ish’ under his leadership). These unproven allegations against Antasari
appeared to morph into perceptions that he might have been capable of ordering Nasruddin’s murder. Whatever one’s view of Antasari’s integrity or even his
capacity for murder, his trial was clearly unfair. Reformists should have protested more vocally against his conviction based on such a lawed prosecution
case.
2 Constitutional Court Decision No. 133/PUU-VII/2009.
3 Decision No. 1532/PIDB/2009/PN.JKT.SEL.
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
388
Simon Butt
Nevertheless, the tide of public support might yet turn in Antasari’s favour.
He appealed to the Supreme Court in July 2010. By late September 2010, a
two-judge majority had upheld his conviction and sentence.4 Ignoring the problematic ballistic evidence mentioned above, the majority held that the lower
courts had in fact considered all relevant evidence and had not misapplied the
law. However, Professor Dr Surya Jaya issued a dissenting judgment.5 A former
Hasanuddin University law academic, Judge Surya Jaya was appointed to the
Supreme Court as a non-career judge in April 2010 after serving as an ad hoc
Tipikor Court appeals judge. He is reportedly the youngest judge ever appointed
to the Supreme Court (Fajar Online, 3/4/2010).
Judge Surya Jaya held that the lower courts had breached Indonesia’s Code
of Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana, or Kuhap)
by ignoring what he described as ‘determinative’ expert evidence. According
to Judge Surya Jaya, Idris’s testimony raised doubts about whether the ‘assassins’ who had already been convicted had in fact been involved in the shooting
and, in turn, whether Antasari had ordered it. If the lower courts had considered
this testimony, he continued, they might well have reached a different decision.
Judge Surya Jaya also accepted that, though Antasari might have met with friends
to complain about being threatened and to seek protection and help, there was
no evidence that he had discussed murdering Nasruddin, let alone planned or
promised to inance the murder. Judge Surya Jaya concluded that he would have
acquitted Antasari.
Judge Surya Jaya might also have commented on another signiicant law in the
decisions of the majority and the lower courts. A fundamental rule of Indonesian
evidence law is that ‘one witness equals none’ (unus testis nullus testis) (Handayani
and Aprianto 2009). In other words, witness testimony without corroboration at
trial, from another witness or other evidence, is insuficient to ground a conviction (Kuhap, art. 185). It seems that the majority in the Supreme Court, and the
judges in the lower courts, breached this principle in convicting Antasari. By the
time Antasari’s case came to trial, only Sigid remained willing to testify against
him. All others that had been convicted for their alleged involvement in the plot
to kill Nasruddin – including several alleged intermediaries and assassins – had
retracted their police statements implicating Antasari. Many of them claimed that
they had been coerced into making those statements.
In early February 2011, the National Commission on Human Rights (Komnas
HAM) announced that it would investigate the fairness of Antasari’s trial. The
probe was launched in response to claims – made by Gayus Tambunan, infamously convicted of corruption within the Indonesian tax ofice – that Cirus
Sinaga, who led both his and Antasari’s prosecution, was involved in a plot
to sideline Antasari (Parlina 2011).6 Indonesia’s Judicial Commission (Komisi
Yudisial) also investigated allegations that the judges who decided his case
breached the judicial code of ethics by ignoring ballistic, forensic and other
evidence (Aprianto and Cipta 2011). At time of writing the Judicial Commission
4 Supreme Court Decision No. 1429 K/Pid/2010.
5 The following description draws from pp. 58–61 of Judge Surya Jaya’s judgment.
6 ‘Komnas to probe Antasari trial process’, Jakarta Post, 31/1/2011.
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
Anti-corruption reform in Indonesia: an obituary?
389
had completed its investigation and recommended to the Supreme Court that it
discipline the district court judges who had presided over Antasari’s trial. The
Commission concluded that the judges had indeed breached the Judicial Code
of Ethics and Behaviour Guidelines by ignoring the expert ballistic evidence,
and recommended their removal from adjudicative duties for six months. The
Supreme Court, which has the inal say on whether to impose most types of punishments upon judges, rejected the recommendation in early September 2011, on
the basis that the Judicial Commission lacked power to assess the technical–legal
correctness of judicial decisions (Hukumonline 2011d). (This ground is commonly
employed by the Supreme Court to avoid Commission scrutiny of its own judges
and judges under its control in the lower courts (Colbran 2009)). Antasari had
asked the Supreme Court to exercise its peninjauan kembali (‘review’) jurisdiction,
under which it could re-open his case and reconsider its decision. As this article
went to press, the Court had not yet rendered a decision.
STATUTORY REFORM: CRIPPLING THE KPK AND THE TIPIKOR COURT?
By November 2009, the national parliament had passed Law 46/2009 on the AntiCorruption Court in response to the 2006 Constitutional Court decision discussed
above. This statute addressed the Constitutional Court’s concerns about ‘dualism’
– the hearing of corruption cases by two types of courts with different conviction
rates, resulting in possible violation of the principle of equality before the law –
by giving the Tipikor Court exclusive jurisdiction over all corruption cases. But
the statute also made signiicant institutional changes to the Tipikor Court, and
implicitly to the KPK, that jeopardise future corruption convictions. Law 46/2009
required that by 29 October 2011 Tipikor courts be established in district courts in
Indonesia’s 33 provincial capitals (art. 35), a task the Supreme Court completed
within the deadline (Hukumonline 2011f).
At irst blush, expanding the Tipikor Court might seem like a boost for the
Court and for the anti-corruption movement. Yet it seems highly unlikely – perhaps impossible – that the success of the Jakarta Tipikor Court will be replicated
in these regional courts. Law 46/2009 gives the chair of the district court in which
the Tipikor Court is housed – a career judge – power to determine whether ad
hoc judges will make up the majority on each Tipikor court panel. Given that the
Supreme Court is having trouble inding enough ad hoc judges to ill these new
courts, they will probably constitute the minority in most cases. This appears to
have already begun happening in the Semarang, Surabaya and Bandung Tipikor
Courts (Hidayat et al. 2011). In these courts, it appears that three career judges
and two ad hoc judges preside over cases involving more than Rp 100 billion,
and that two career judges and one ad hoc judge decide cases involving less than
Rp 100 billion. Career-judge majorities are likely to win the day in split decisions.
The likely result is fewer convictions.
Law 46/2009 could carry even more dire consequences for the KPK. The
Law does not once mention the KPK. It mentions only general public prosecutors (penuntut umum) being able to prosecute before the Tipikor Court. This has
two important consequences. First, ordinary public prosecutors can now bring
claims before Tipikor courts – and have already done so. Given the widespread
corruption and incompetence within Indonesia’s prosecution service, the Tipikor
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
390
Simon Butt
courts will probably not be able to maintain a high conviction rate. They will be
more likely to ind fault with the evidence and arguments put by ordinary prosecutors than the Jakarta Tipikor Court has done for the prosecutors of the KPK.
Indeed, prosecutorial incompetence seems to have resulted in the Tipikor Court’s
irst acquittal, to which I turn below. Add to this the potential for majority careerjudge panels in regional Tipikor courts, and the result is that almost all corruption
cases will be controlled by ordinary prosecutors and judges – the very people
whose inluence the KPK and the Tipikor Court were established to circumvent.
Second, and perhaps more signiicantly, the KPK’s omission from Law 46/2009
leaves its prosecutorial function tenuous. According to press reports, this omission was not a drafting oversight (Handayani et al. 2009; Wright 2009; Kustiani
et al. 2009). Some parliamentarians – perhaps even a majority – had wanted to
excise the KPK’s prosecutorial powers but, in a compromise, the KPK’s role was
left ambiguous in Law 46/2009.
At the time of writing, the KPK continues to prosecute in the Tipikor courts.
Yet it is highly likely that defendants will seek to exploit this ambiguity and
argue that Law 46/2009 has, in fact, removed the KPK’s jurisdiction to prosecute,
along the lines of the Supreme Court judges’ challenge to the jurisdiction of the
TGPTK, discussed above. There are certainly reasonable legal arguments against
including the KPK’s prosecutors within the deinition of penuntut umum (Butt
2011: 120). If the KPK were to lose a challenge to its jurisdiction to prosecute, its
prosecutorial powers might be stripped away, leaving it as a mere investigative
institution. If this occurred, then ordinary prosecutors would regain complete
control over corruption cases.
More recently, politicians have pushed for revisions to the 2002 KPK Law and
the 1999 Anti-Corruption Law (amended in 2001). These statutes are critical to
the effective functioning of the KPK and the Tipikor Court. The KPK Law is the
statutory source for the KPK’s power to perform investigations, prosecutions,
wire-taps and the like. The Anti-Corruption Law deines and sets punishments
for various types of corruption, and arguably makes corruption easier to pursue
than most other types of crimes (Butt 2009b).
Proposed amendments to the 1999 Anti-Corruption Law, in circulation from
early 2011, explicitly remove the KPK’s prosecutorial function and reduce the
penalties for some corruption offences (Hukumonline 2011a). Fortunately, a public
backlash against the revisions, driven by the KPK and ICW, has led to the withdrawal of the amendments from parliamentary consideration to allow more public comment.
Amendments to the KPK Law have not yet been drafted. However, ICW
obtained the ‘terms of reference’ for the revisions and claims that they seek to
interfere with the KPK’s wire-tapping powers; to allow the KPK formally to
cease investigations (leaving open the possibility of this occurring in response to
bribery); and to increase the KPK’s role in corruption prevention, which would
presumably divert its attention from enforcement (Hukumonline 2011b). Amending the KPK Law reportedly sits at number four on the 2011 National Legislative
Program, a list of priority legislation that parliament should aim to enact within
the year (Hukumonline 2011a).
It is hardly surprising that Law 46/2009 and the proposed KPK and AntiCorruption Law revisions seek to enfeeble the KPK. In the months before Law
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
Anti-corruption reform in Indonesia: an obituary?
391
46/2009’s enactment, the KPK had been investigating parliamentarians for corruption and had conducted very public raids on their ofices. In particular, it
had investigated allegations that 30 parliamentarians had each received traveller’s cheques worth Rp 500 million to elect Miranda Goeltom as Bank Indonesia’s
deputy governor in 2004 (Hidayat and Febriyan 2011). By June 2009, the KPK
had formally charged four of them and by July it had publicly identiied 26 more
serving and former legislators as recipients of the cheques. The KPK has also
investigated parliamentarians for involvement in other corruption cases. In 2011,
ICW estimated that, once the KPK had completed its current investigations into
parliamentarians, more than 100 might be ensnared (Hukumonline 2011c). Many
parliamentarians and the political parties to which they belong had, and still
have, much to gain from a weakened KPK and Tipikor Court.
THE TIPIKOR COURT’S FIRST ACQUITTAL:
A GLIMPSE OF THE FUTURE
In late February 2011, the Central Jakarta Tipikor Court issued the irst acquittal
in its seven-year history. The defendant was Mieke Henriett Bambang, secretary
to Bank Indonesia Governor Burhanudin Abdullah from 2003 to 2008. She was
accused of impeding a KPK investigation into Abdullah.7 After searching Burhanudin’s ofice, the KPK had sealed off a cupboard in a computer desk (Hukumonline
2011a). Mieke had allegedly removed the seal and, the KPK claimed, had taken
some of the documents and given them to another Bank Indonesia employee.
Mieke denied any wrong-doing, claiming that she was following instructions to
put the documents in order (merapikan) and that she had not removed any material (Silalahi 2011).
The case was the irst brought before a Tipikor court by a public prosecutor.
According to the account of the case provided by Indonesia’s leading legal news
service, Hukumonline (2011c), the public prosecution’s performance was far below
the standard for which the KPK has become well known. The KPK usually sends
at least two prosecutors to the cases it prosecutes, and its indictments usually run
to hundreds of pages (Hukumonline 2011a). By contrast, in this case, the indictment
against the defendant was presented by only one prosecutor and was a mere ive
pages long.
The indictment was also legally lawed, the Tipikor Court decided. Article
142(3) of the Kuhap requires that indictments must be accurate, clear and complete. The indictment in this case appeared to fulil none of these requirements; it
did not clearly set out the crime the prosecution alleged the defendant had committed (Hukumonline 2011b). (Mieke’s lawyer even claimed that the indictment
had been largely copied and pasted from the summary of evidence that police
had submitted to prosecutors, and did not include the evidence of the ive KPK
oficers who had reported Mieke for impeding their work (Silalahi 2011)). This left
the Tipikor Court with little choice but to dismiss the case before witnesses were
called – a rare event in Indonesia (Hukumonline 2011b).
This case raises signiicant questions about prosecutorial competence and
resource allocation, particularly in corruption cases. It also casts doubt upon the
7 For a discussion of the Abdullah case, see Kong and Ramayandi (2008).
392
Simon Butt
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
public prosecution’s case selection criteria. Of all of its ongoing corruption cases,
this was hardly an appropriate one to choose as its irst to bring before the Tipikor
Court. The defendant had not even been accused of committing corruption herself. All in all, this case does not bode well for non-KPK prosecutions in Indonesia’s Tipikor courts.
CONCLUSION
Mieke’s acquittal is likely to be the irst of many. In August and September 2011
alone, the Bandung Tipikor Court acquitted three defendants in trials tainted
by allegations of judicial impropriety, including the bribing of judges and questionable judicial reasoning. The Surabaya Tipikor Court had acquitted dozens of
defendants by the end of September 2011 (Anton 2011). These acquittals were
cases brought by ordinary public prosecutors.
Of particular signiicance is that on 11 October 2011, for the irst time, a defendant whom the KPK had prosecuted was acquitted. This was deeply embarrassing for the KPK, which had been able to deny responsibility for previous Tipikor
court acquittals by pointing out that ordinary public prosecutors – not the KPK
– had prosecuted them. The defendant was Mochtar Mohammad, the former
mayor of Bekasi, whom the KPK had prosecuted for corruption associated with
the regional budget. According to a Hukumonline report on the case (Hukumonline
2011e), the Bandung Tipikor Court found insuficient evidence to substantiate the
charges made against the defendant. Hukumonline also reported that, before reading out its reasons for the acquittal, the panel of judges declared that ‘the courts
are an independent pillar of democracy and are free of pressure from anyone,
including trial by the press. The courts are, in fact, not only institutions that punish, but ... also institutions that provide justice’. If this statement is taken as an
indication of future intent, the Bandung Tipikor Court might be expected to issue
many more acquittals.
Even though attempts at discrediting Bibit and Chandra back-ired, and impropriety in Antasari’s trial might still be revealed, the institutional features of the
Tipikor Court and the KPK that set them apart from ordinary police, prosecutors and courts are being chipped away. Ordinary police, prosecutors and judges
appear poised to regain the exclusive control over corruption cases that they lost
to the KPK and the Tipikor Court under the 2002 KPK Law. If the current trajectory continues, within a few short years the Tipikor Court and the KPK will join
the growing list of Indonesia’s failed anti-corruption initiatives.
REFERENCES
ADB and OECD (Asian Development Bank and Organisation for Economic Co-operation
and Development) (2006) Anti-corruption Policies in Asia and the Paciic: Progress in Legal
and Institutional Reform in 25 Countries, Asian Development Bank, Manila.
Anton, A. (2011) ‘Red report card for Corruption Court’, Tempo, 5 October.
Aprianto, Anton and Cipta, Ayu (2011) ‘Antasari’s quest’, Tempo, 27 May.
Aspandi, Ali (2002) Menggugat Sistem Hukum Peradilan Indonesia Yang Penuh Ketidakpastian
[Challenging an Indonesian Judicial System that is Full of Uncertainty], Lembaga
Kajian Strategis Hukum Indonesia (Institute for Strategic Study of Indonesian Law)
and Lutfansah Mediatama, Surabaya.
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
Anti-corruption reform in Indonesia: an obituary?
393
Assegaf, Ibrahim (2002) ‘Legends of the fall: an institutional analysis of Indonesian law
enforcement agencies combating corruption’, in Corruption in Asia: Rethinking the Governance Paradigm, eds Timothy Lindsey and H.W. Dick, Federation Press, Sydney.
Bolongaita, Emil P. (2010) ‘An exception to the rule? Why Indonesia’s Anti-Corruption
Commission succeeds where others don’t – a comparison with the Philippines Ombudsman’, Anti-corruption Resource Centre, Bergen (Norway), available at .
Butt, Simon (2009a) ‘”Unlawfulness” and corruption under Indonesian law’, Bulletin of
Indonesian Economic Studies 45 (2): 179–98.
Butt, Simon (2009b) ‘Indonesia’s anti-corruption drive and the Constitutional Court’, Comparative Law Journal 4 (2): 186–204.
Butt, Simon (2011) Corruption and Law in Indonesia, Routledge Contemporary Southeast
Asia Series, Routledge, London.
Butt, Simon and Lindsey, Timothy (forthcoming) ‘Uninished business: law reform, governance and the courts in post-Soeharto Indonesia’, in Indonesia, Islam and Democratic
Consolidation, eds Mirjam Kunkler and Alfred Stepan, Columbia University Press.
Colbran, N. (2009) ‘Courage under ire: the irst ive years of the Indonesian Judicial Commission’, Australian Journal of Asian Law 11 (2): 273–301.
Dhyatmika, Wahyu, Hadad, Toriq, Damayanti, Ninin, Tauiq, Rohman and Tauik, M.
(2009) ‘How to cage a house lizard’, Tempo, 16 November.
Diansyah, F. (2009) Weakening of Corruption Eradication Commission (KPK) in Indonesia: Independent Report, Indonesia Corruption Watch and National Coalition of Indonesia for
Anticorruption, Doha, November.
Fenwick, Stewart (2008) ‘Measuring up? Indonesia’s Anti-Corruption Commission and the
new corruption agenda’, in Indonesia: Law and Society, ed. Timothy Lindsey, 2nd edition,
Federation Press, Sydney.
Hamzah, Andi (1984) Korupsi di Indonesia: Masalah dan Pemecahannya [Corruption in Indonesia: Problems and Solutions], Gramedia, Jakarta.
Handayani, Anne L. and Aprianto, Anton (2009) ‘When one equals none’, Tempo, 26 October.
Handayani, Anne L., Aprianto, Anton, Muhtarom, Iqbal and Wibowo, Eko Ari (2009) ‘Pulling the tiger’s teeth’, Tempo, 28 September.
Handayani, Anne L., Kustiani, Rini and Nilawaty, Cheta (2009) ‘Tragedy of the dapper
prosecutor’, Tempo, 11 May.
Haryadi, Rohmat (2009) Chandra–Bibit: Membongkar Perseteruan KPK, Polri, dan Kejaksaan
[Chandra–Bibit: Breaking Down Hostilities between the KPK, the Police, and the Prosecution], Mizan Media Utama, Jakarta.
Hidayat, Bagja and Febriyan (2011) ‘Go to jail ... directly to jail’, Tempo, 15 February.
Hukumonline (2009) ‘DPR dan (anti) korupsi “sehidup semati”: catatan awal tahun 2009
[The DPR and (anti) corruption as bedfellows: comments in early 2009]’, 5 January.
Hukumonline (2011a) ‘Pertama kali kasus kejaksaan disidang di Pengadilan Tipikor Jakarta
[The irst public prosecution case heard in the Jakarta Tipikor Court]’, 31 January.
Hukumonline (2011b) ‘Pengadilan Tipikor Jakarta bebaskan seorang terdakwa [Jakarta
Tipikor Court frees defendant]’, 21 February.
Hukumonline (2011c) ‘Busyro: UU KPK tak perlu direvisi [Busyro: no need to revise KPK
Law]’, 3 March.
Hukumonline (2011d) ‘KY–MA kordinasi untuk kasus Antasari [The Judicial Commission
and Supreme Court will coordinate on the Antasari case], 15 September.
Hukumonline (2011e) ‘Majelis menilai pasal di UU Pemberantasan Tipikor tidak jelas [Panel
considers articles in the Corruption Eradication Law to be unclear]’, 11 October.
Hukumonline (2011f) ‘Jumlah Pengadilan Tipikor lengkap 33 [Number of Tipikor Courts
complete at 33]’, 22 October.
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
394
Simon Butt
Jansen, David (2010) ‘Snatching victory’, Inside Indonesia 100, available at .
Kong, Tao and Ramayandi, Arief (2008) ‘Survey of recent developments’, Bulletin of Indonesian Economic Studies 44 (1): 7–32.
KPK (Komisi Pemberantasan Korupsi, Corruption Eradication Commission) (2011) Laporan
Tahunan Komisi Pemberantasan Korupsi 2010 [KPK Annual Report 2010], KPK, Jakarta.
Kustiani, Rini, Aprianto, A., Wibowo, Eko Ari and Sutarto (2009) ‘A “middle of the road”
policy’, Tempo, 12 October.
Parlina, Ina (2011) ‘Judicial Commission says Antasari trial ishy’, Jakarta Post, 13 April.
Pearson, Zoe (2001) ‘An international human rights approach to corruption’, in Corruption
and Anti-corruption, eds Peter Larmour and Nick Wolanin, Asia Paciic Press, Canberra.
Schütte, Soie Arjon (2011) ‘Appointing top public oficials in a democratic Indonesia: the
Corruption Eradication Commission’, Bulletin of Indonesian Economic Studies 47 (3): 355–
79, in this issue.
Silalahi, Mustafa (2011) ‘Pengadilan Tindak Pidana Korupsi: sederhana membawa bebas
[Tipikor Court: mediocrity brings acquittal]’, Tempo, 7 March.
Syamsuddin, A. (2007) ‘Benarkah KPK tidak pernah bersalah? [Is it true that the KPK is
never wrong?]’, Kompas, 27 February.
Wagner, Benjamin B. and Jacobs, Leslie Gielow (2008) ‘Retooling law enforcement to investigate and prosecute entrenched corruption: key criminal procedure reforms for Indonesia and other nations’, University of Pennsylvania Journal of International Economic Law
30 (1): 183–266.
Wright, Tom (2009) ‘Indonesia dilutes antigraft court’, Wall Street Journal, 30 September.
Yunto, E. (2008) ‘Mencermati pemberian SP3 kasus korupsi [Examining the cessation of
police investigations in corruption cases]’, Hukumonline, 25 November.
ISSN: 0007-4918 (Print) 1472-7234 (Online) Journal homepage: http://www.tandfonline.com/loi/cbie20
Anti-corruption reform in indonesia: an obituary?
Simon Butt
To cite this article: Simon Butt (2011) Anti-corruption reform in indonesia: an obituary?,
Bulletin of Indonesian Economic Studies, 47:3, 381-394, DOI: 10.1080/00074918.2011.619051
To link to this article: http://dx.doi.org/10.1080/00074918.2011.619051
Published online: 16 Nov 2011.
Submit your article to this journal
Article views: 1773
View related articles
Citing articles: 4 View citing articles
Full Terms & Conditions of access and use can be found at
http://www.tandfonline.com/action/journalInformation?journalCode=cbie20
Download by: [Universitas Maritim Raja Ali Haji]
Date: 18 January 2016, At: 19:19
Bulletin of Indonesian Economic Studies, Vol. 47, No. 3, 2011: 381–94
ANTI-CORRUPTION REFORM IN INDONESIA:
AN OBITUARY?
Simon Butt
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
University of Sydney
Indonesia’s Anti-Corruption Court had until recently convicted all the defendants
brought before it by the Corruption Eradication Commission. Many of these were
well-known and politically powerful igures. Yet both the Court and the Commission are under threat. Between February and October 2011, the Anti-Corruption
Courts issued more than 20 acquittals, and on 11 October 2011, for the irst time, a
defendant prosecuted by the KPK itself was acquitted. This article traces the history
of the Court and the Commission and explains why their fall may be imminent.
Both institutions have been the targets of efforts to discredit and hobble them, apparently orchestrated by people the Commission has investigated. If the current
trend continues, the Anti-Corruption Court and the Corruption Eradication Commission may soon join the growing list of Indonesia’s failed anti-corruption initiatives.
Keywords: corruption, governance, rent seeking, bribery
INTRODUCTION
Before February 2011, Indonesia’s Anti-Corruption Court (Pengadilan Tindak
Pidana Korupsi, or Tipikor Court) had convicted all 250 or so defendants that the
Corruption Eradication Commission (Komisi Pemberantasan Korupsi, or KPK)
had brought before it. The Tipikor Court had maintained this 100% conviction rate
in cases involving high-proile and politically powerful igures, including parliamentarians, ministers, provincial governors and Bank Indonesia oficials – even
Aulia Pohan, a member of President Susilo Bambang Yudhoyono’s extended family. Many judge the Court’s success by reference to this conviction rate. Yet success in this sense may be slipping from the grasp of the Tipikor Court and the
KPK. In February 2011 the Jakarta Tipikor Court handed down its irst acquittal.
By the beginning of October 2011, the Surabaya Tipikor Court alone had acquitted
21 defendants, and the Bandung Tipikor Court acquitted four defendants between
August and October 2011.
In this article, I trace the rise of the KPK and the Tipikor Court and explain
why their fall may be imminent. Both institutions have been the targets of wellorchestrated efforts to discredit and hobble them, launched by some of those the
KPK has investigated. The Constitutional Court – probably inadvertently, as discussed below – sowed the seeds for their weakening in 2006. More signiicant,
however, have been events occurring since early 2009. In that year, some police,
ISSN 0007-4918 print/ISSN 1472-7234 online/11/030381-14
DOI: 10.1080/00074918.2011.619051
© 2011 Indonesia Project ANU
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
382
Simon Butt
prosecutors and parliamentarians, themselves under threat of KPK investigation
or connected with others who were, pushed back against the KPK and the Tipikor
Court.
For their part, police and prosecutors sought to discredit and remove individual
KPK commissioners. In this endeavour, they hold powerful trump cards: police
can have KPK commissioners suspended simply by charging them; prosecutors
can have them dismissed merely by bringing them to trial. In 2009, police charged
the KPK chair with murder and two commissioners with misuse of power, triggering the suspension of all three. The chair was convicted following a highly
questionable trial, but the commissioners were released after proving that they
had been framed.
By contrast, parliamentarians sought to weaken the Tipikor Court and the KPK
by legislatively removing some of the features responsible for their success. Perhaps the most signiicant of these features were the KPK’s ability to choose the
cases it handles (thereby excluding ordinary police and prosecutors from those
cases) and the Tipikor Court’s use of ad hoc (non-career) judges. Legislative
efforts to weaken these and other features have borne fruit. In 2009, the national
parliament passed Law 46/2009 on the Tipikor Court; I will show that the Court’s
irst acquittal can be attributed directly to this Law. In 2011, parliamentarians proposed amendments to other statutes which, if passed, are likely to reduce the eficacy of the Tipikor Court and the KPK further, and may even remove the KPK’s
power to prosecute.
THE INSTITUTIONAL DESIGN OF THE KPK AND THE TIPIKOR COURT
Law 30/2002, the statute that established the KPK, made it institutionally independent of government (art. 3). The Law authorises the KPK to investigate and
prosecute most corruption cases itself and to take over corruption investigations
and prosecutions from police and prosecutors in some circumstances (arts 8 and
9). It gives the KPK investigative powers that the police lack. These include powers to wire-tap suspects’ phones without seeking court approval, to freeze bank
accounts and to issue travel bans (art. 12). The Law also prohibits the KPK from
dropping a case once it has progressed beyond initial investigations – a restriction aimed at preventing prosecutions from being dropped in return for bribes
(Fenwick 2008). The KPK’s ive commissioners are selected through rigorous
and transparent processes (arts 30 and 31) (Schütte 2011, in this issue). And, even
though KPK investigators and prosecutors are secondments from the police force
and the public prosecutor’s ofice, strong competition for positions and the use of
private-sector recruitment services have ensured that, with some notable exceptions, the integrity and professionalism of appointees have rarely been brought
into question (Bolongaita 2010: 16–17).
A signiicant feature of the KPK’s institutional design has been its ability to
exclude ordinary law enforcement institutions from handling particular corruption cases, either by initiating an investigation itself, or by taking over a case that
police or prosecutors have already begun investigating or prosecuting (Fenwick
2008; Bolongaita 2010: 16–17). This has been crucial to the anti-corruption effort,
because Indonesia’s general law enforcement institutions are perceived to be
largely ineffective in pursuing corruption allegations (Assegaf 2002).
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
Anti-corruption reform in Indonesia: an obituary?
383
One cause of their ineffectiveness is probably incompetence – in detecting corruption, handling and preparing evidence and proving allegations at trial, for
example. To be fair, convictions are notoriously dificult to obtain in corruption
cases even in developed and well-resourced states. Evidence is often dificult to
uncover, because perpetrators usually go to great lengths to prevent detection
(Wagner and Jacobs 2008: 18; Pearson 2001: 39; ADB and OECD 2006: 17).
However, the primary reason for the ineffectiveness of general law enforcement institutions is likely to be that many, if not most, Indonesian law enforcers are themselves corrupt. Corruption is so endemic within the justice system
that the system is often referred to as the ‘justice maia’ (maia peradilan). In most
types of cases, including corruption cases, police can be ‘persuaded’ to drop an
investigation, lose important evidence or charge a suspect with a lesser offence. In
return for a bribe, prosecutors often drop a prosecution, present their case poorly
at trial or seek a lenient penalty (Aspandi 2002: 33; Fenwick 2008: 406; Yunto 2008;
Assegaf 2002: 130). The result is, in essence, immunity for those whose cases are
handled by ordinary law enforcement institutions and who are willing and able
to bribe their way out of trouble.
The Tipikor Court was established and located within the Central Jakarta District Court with the sole function of hearing the cases that the KPK prosecutes
(art. 53). Under the 2002 KPK Law, each case was to be presided over by a ivejudge panel, comprising two career judges drawn from the general courts and
three ’ad hoc judges’ (art. 58). These are legal experts – usually academics, legal
practitioners and retired judges – employed to sit on Tipikor Court trials. Appeals
were available to similarly constituted benches in the Jakarta High Court and the
Supreme Court (arts 59–60).
The key to the Tipikor Court’s success has probably been this use of three ad
hoc judges on each ive-judge panel. Although there are exceptions, Indonesian
general court judges are not known for high levels of integrity and competence,
and they have developed a reputation for acquitting or imposing short sentences
in corruption cases (Butt 2009b). Indonesia’s most prominent anti-corruption nongovernment organisation, Indonesia Corruption Watch (ICW), claims that general
court career judges acquit in around 50% of corruption cases (Diansyah 2009).
By contrast, ad hoc judges are considered more likely to be professional because
they do not work within the existing judiciary and are therefore not tainted by its
practices. Empanelling a majority of ad hoc judges appears to have been critical to
the Tipikor Court’s maintenance of its 100% conviction rate. Some of its decisions
have been split between the ad hoc and the career judges, with the majority ad
hoc judges holding sway and convicting the defendant, and the minority career
judges declaring that they would have acquitted or imposed a lower sentence
(Fenwick 2008: 414).
The case of the Joint Investigating Team for Corruption Eradication (Tim
Gabungan Pemberantasan Tindakan Korupsi, or TGPTK) brings into sharp relief
the need to bypass ordinary law enforcers in corruption cases. The TGPTK was
formed within the Attorney General’s Ofice in 2000 to help with dificult-to-prove
corruption cases. Like many pre-KPK anti-corruption initiatives, the TGPTK had
limited powers (Assegaf 2002; Hamzah 1984). It could only coordinate investigations and prosecutions that ordinary police and prosecutors conducted. Its inability to investigate or prosecute on its own initiative was seen as its main weakness
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
384
Simon Butt
(Assegaf 2002). The TGPTK oversaw the completion of only around 10% of the
cases submitted to it (Assegaf 2002: 135), leading its head, former Supreme Court
judge and respected reformist Adi Andojo Soetjipto, to resign in frustration in
2001 (Jakarta Post, 28/3/2001).
While the TGPTK was only ever intended to remain until the KPK was established, it did not last even as long as that. When in 2001 it began investigating
allegations that Supreme Court judges had received bribes to ix cases, the judges
responded by challenging, in the Central Jakarta District Court, the jurisdiction
of the TGPTK to investigate them. They were successful, albeit on highly dubious
legal grounds, and the investigation into them was declared invalid. The judges
also sought, before the Supreme Court, a judicial review of the government regulation that established the TGPTK. Again they were successful despite questionable
legal arguments (Butt and Lindsey forthcoming). The Supreme Court invalidated
the regulation, thereby disbanding the TGPTK. The judges were therefore able to
escape scrutiny completely, by appealing to their inferiors in the District Court
and their brethren on the Supreme Court. This case is still often cited to explain
why law enforcement institutions cannot be trusted to handle corruption cases
and, in particular, how they have ‘guarded their own’ in the face of corruption
allegations (Butt and Lindsey forthcoming).
THE KPK UNDER CHAIR TAUFIQURRAHMAN RUKI (2004–08)
From its irst prosecution in 2004 until the end of 2007, under the leadership of
Tauiqurrahman Ruki, the KPK for the most part pursued mid-level national oficials and mid-level to senior regional government oficials, securing over 80 convictions in the Tipikor Court (table 1).
However, not all observers heralded the success of the KPK – Tipikor Court
‘team’. Some lawyers complained that the Tipikor Court must have ignored the
presumption of innocence to have maintained its conviction rate, and that its
20 judges lacked the judicial skills needed to preside over trials and write decisions (Hukumonline 2009; Syamsuddin 2007). Others pointed out that the overall impact of the KPK and the Tipikor Court was low: the KPK prosecutes and
the Tipikor Court decides less than 5% of corruption cases Indonesia-wide (Butt
2011: 47). Yet perhaps the most sustained criticism – commonly levelled by anticorruption activists and the media – was about the KPK’s case selection. The criticism was that the KPK chose only ‘easy’ cases, avoiding the ‘big ish’ – including
former President Soeharto, his family and inner circle, senior military personnel
and those involved in the bank liquidity scandals in the aftermath of the 1997
inancial crisis (Butt 2009b).
While on a general level this criticism has some merit, it neglects the fact that
the KPK was a new institution operating in a hostile political environment and still
inding its place. It also overlooks several important convictions, including those
of former national ministers and parliamentarians and the most senior of local
government oficials. Most importantly, by keeping clear of the ‘big ish’ – those
with strong ‘live’ political connections – the KPK avoided the powerful resistance
that these people could muster and, potentially, a fate similar to that of the TGPTK.
Starting with smaller cases allowed the KPK to build momentum, experience,
expertise and public support before tackling the cases the critics highlighted.
Anti-corruption reform in Indonesia: an obituary?
385
TABLE 1 Corruption Convictions by Defendant Category, 2004–10
Ofice Held by Defendant
Year of Conviction at First Instance
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
2004
Parliamentarians
(national and local)
Heads of ministries or
institutions
Ambassadors
Commissioners
Governors
Heads of local government
Civil servants a
Judges
Private sector defendants
Other
Total
2005
2006
2007
2
1
1
3
2
9
2
2
3
15
1
4
6
23
5
1
29
1
4
2
1
2008
2009
2010
6
8
27
1
1
2
6
10
1
1
2
5
22
1
2
4
14
3
2
26
12
4
54
11
4
44
1
4
12
1
8
9
65
a Including public prosecutors and police.
Source: KPK (2011).
During this period, some of those the KPK had prosecuted and the Tipikor
Court had convicted attempted to ‘push back’ against both institutions. Resistance was, however, limited largely to challenges, lodged with Indonesia’s
Constitutional Court, to the constitutionality of aspects of the KPK Law and
Indonesia’s 1999 Anti-Corruption Law (amended in 2001). Though some of
these challenges were successful, they did not signiicantly affect the way the
KPK and the Tipikor Court worked or hinder their performance (Butt 2009a),
with one critical exception.
In a 2006 case, the Constitutional Court decided that the Tipikor Court was
itself unconstitutional because its establishment had created a dual system. Indonesia’s general courts continued to hear the cases that the KPK decided not to
prosecute, and this, the Court found, breached the constitutional right to equality
before the law.1 Implicit in the Constitutional Court’s reasoning was that conviction rates were higher in the Tipikor Court than in the general courts, to the disadvantage of defendants the KPK chose to pursue (Butt 2009a). The Constitutional
Court gave the national parliament three years to pass a new statute that gave the
Tipikor Court exclusive jurisdiction over corruption cases. Parliament met this
deadline, but with a statute that, in ways explained below, signiicantly weakens
the KPK and the Tipikor Court.
1 Constitutional Court Decision No. 012-016-019/PUU-IV/2006.
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
386
Simon Butt
THE KPK UNDER ANTASARI AZHAR (2008–09)
Under the leadership of Antasari Azhar (2008–09), the KPK began targeting
some of the ‘big ish’ that it had previously avoided in the parliament, public
prosecution and the police force (table 1). This, it seems, drew more intense
retaliation – this time from or through police and prosecutors. In 2009, the KPK
had been investigating senior law enforcement oficials. Perhaps the most prominent was Susno Duadji, a former chief of criminal investigations with the national
police. The KPK investigated him for planning, in return for a bribe, to help a
depositor retrieve funds illegally from the ailing Bank Century – a bank that the
national government had bailed out in November 2008 to the tune of Rp 6.7 trillion (approximately $524 million) (Jansen 2010).
Though pursuing corruption cases involving law enforcement institutions is
clearly within the KPK’s mandate, targeting police and prosecutors invites danger for KPK commissioners. Under the KPK Law, the president must suspend
any KPK commissioner formally charged with a crime (art. 32(1)), and remove
the commissioner once he or she is prosecuted (art. 32(2)) – regardless, it seems,
of whether the commissioner is in fact tried or convicted. Though apparently
designed to safeguard the KPK’s reputation, these provisions give police and
prosecutors tremendous leverage over the KPK. Police and prosecutor decisions
to charge and prosecute are unilateral and largely unreviewable.
THE FRAMING OF BIBIT AND CHANDRA – ANTASARI TOO?
Police and prosecutors used these powers from early March 2009 against the
KPK chair, Antasari Azhar, who was arrested in March 2009, and from mid-2009
against two other KPK commissioners, Chandra Muhammad Hamzah and Bibit
Samad Rianto.
Police arrested Antasari for ordering the murder of Nasruddin Zulkarnaen, the
husband of a woman with whom Antasari allegedly had a sexual encounter. Nasruddin was shot while travelling home in his car. Police and prosecutors alleged
that Nasruddin had attempted to blackmail Antasari, threatening to reveal the
encounter to the media unless Antasari helped him obtain business opportunities
and a promotion.
Meanwhile, in September 2009 police arrested Bibit and Chandra for abusing
their powers to issue and revoke travel bans. The only evidence they could produce to substantiate the charges was a travel ban document that was later proven
to be a fake. Yet because police had formally charged Bibit and Chandra, the president still suspended both commissioners under art. 32(1) of the KPK Law. Bibit
and Chandra knew that they would be dismissed under art. 32(2) once a prosecution commenced. In an attempt to prevent this, they challenged art. 32(2) in the
Constitutional Court, arguing that it contravened their constitutional right to the
presumption of innocence.
The Court’s proceedings were broadcast live on television and streamed online.
During the irst hearing of the case, the Constitutional Court allowed the KPK to
play wire-tapped phone conversations between suspects the KPK was investigating and senior law enforcement oficials. The recordings clearly revealed a plot to
frame Bibit and Chandra. Voices identiied on the tape included the then Deputy
Attorney General, Abdul Hakim Ritonga; the former Head of Intelligence at the
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
Anti-corruption reform in Indonesia: an obituary?
387
Attorney General’s Ofice, Wisnu Subroto; and Susno Duadji. The Court unanimously declared that Bibit and Chandra had been framed and should immediately be released and re-instated.2 The ‘Team of 8’ – a fact-inding team that
President Susilo Bambang Yudhoyono had himself established to investigate the
case – drew similar conclusions. Soon afterwards, prosecutors issued an oficial
Declaration of Cessation of Prosecution (SKPP) for both Bibit and Chandra. Susno
and Ritonga were forced to resign (Dhyatmika et al. 2009; Haryadi 2009).
Antasari Azhar’s trial began on 8 October 2009 in the South Jakarta District
Court. The Court accepted the chain of events put forward by the prosecution, to
which Sigid Haryo Wibisono, a businessman and the chair of the Merdeka daily
newspaper, testiied. Sigid attested that Antasari met with him and Williardi
Wizar, a former South Jakarta police chief, and asked them to help him ‘pacify’
(mengamankan) threats Nasruddin had made against him. Sigid also testiied that
Wizar had then contacted others to arrange and perform the killing. The Court
also accepted evidence from Sigid that Antasari had promised to repay the ‘operational funds’ for the murder that Sigid initally provided. In early 2010, Antasari
was convicted and sentenced to 18 years in prison.3
Antasari’s trial was highly questionable: no credible evidence was adduced
pointing to his guilt (Butt 2011: ch. 5). Most problematic was the testimony of the
prosecution’s own forensic and ballistic expert, Abdul Munim Idris. He testiied
that the gun the prosecution had produced as the murder weapon could not ire
the bullets found in the victim and that it was in such poor condition that it could
not have been used in the murder. Idris’s testimony was not challenged at trial,
yet the Court simply ignored it. However, the authenticity of the murder weapon
was surely central to the prosecution’s case, as it is in most murder trials. It thus
seems inconceivable that an objective panel of judges could have found Antasari
guilty ‘legally and convincingly’ – the Indonesian equivalent of ‘beyond reasonable doubt’ (Butt 2011: ch. 5). The trial smacks of a set-up to remove Antasari,
under whom the KPK had become signiicantly bolder. Antasari’s appeal to the
Jakarta High Court was unsuccessful.
Despite the exposure of Bibit and Chandra’s framing, the widespread public
perception that politically strong igures had the KPK in their sights, and the
paucity of evidence adduced at trial to support his conviction, Antasari enjoyed
little public support. Very few openly expressed the view that he, too, might
have been framed. Some anti-corruption reformists I interviewed in Jakarta
voiced doubts about his integrity: allegations of corruption surrounded both his
appointment as KPK chair and cases he had handled in previous prosecutorial
posts (Handayani, Kustiani and Nilawaty 2009) (though there is much to counteract these doubts, not least the KPK’s greater focus on corruption by ‘bigger ish’ under his leadership). These unproven allegations against Antasari
appeared to morph into perceptions that he might have been capable of ordering Nasruddin’s murder. Whatever one’s view of Antasari’s integrity or even his
capacity for murder, his trial was clearly unfair. Reformists should have protested more vocally against his conviction based on such a lawed prosecution
case.
2 Constitutional Court Decision No. 133/PUU-VII/2009.
3 Decision No. 1532/PIDB/2009/PN.JKT.SEL.
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
388
Simon Butt
Nevertheless, the tide of public support might yet turn in Antasari’s favour.
He appealed to the Supreme Court in July 2010. By late September 2010, a
two-judge majority had upheld his conviction and sentence.4 Ignoring the problematic ballistic evidence mentioned above, the majority held that the lower
courts had in fact considered all relevant evidence and had not misapplied the
law. However, Professor Dr Surya Jaya issued a dissenting judgment.5 A former
Hasanuddin University law academic, Judge Surya Jaya was appointed to the
Supreme Court as a non-career judge in April 2010 after serving as an ad hoc
Tipikor Court appeals judge. He is reportedly the youngest judge ever appointed
to the Supreme Court (Fajar Online, 3/4/2010).
Judge Surya Jaya held that the lower courts had breached Indonesia’s Code
of Criminal Procedure (Kitab Undang-undang Hukum Acara Pidana, or Kuhap)
by ignoring what he described as ‘determinative’ expert evidence. According
to Judge Surya Jaya, Idris’s testimony raised doubts about whether the ‘assassins’ who had already been convicted had in fact been involved in the shooting
and, in turn, whether Antasari had ordered it. If the lower courts had considered
this testimony, he continued, they might well have reached a different decision.
Judge Surya Jaya also accepted that, though Antasari might have met with friends
to complain about being threatened and to seek protection and help, there was
no evidence that he had discussed murdering Nasruddin, let alone planned or
promised to inance the murder. Judge Surya Jaya concluded that he would have
acquitted Antasari.
Judge Surya Jaya might also have commented on another signiicant law in the
decisions of the majority and the lower courts. A fundamental rule of Indonesian
evidence law is that ‘one witness equals none’ (unus testis nullus testis) (Handayani
and Aprianto 2009). In other words, witness testimony without corroboration at
trial, from another witness or other evidence, is insuficient to ground a conviction (Kuhap, art. 185). It seems that the majority in the Supreme Court, and the
judges in the lower courts, breached this principle in convicting Antasari. By the
time Antasari’s case came to trial, only Sigid remained willing to testify against
him. All others that had been convicted for their alleged involvement in the plot
to kill Nasruddin – including several alleged intermediaries and assassins – had
retracted their police statements implicating Antasari. Many of them claimed that
they had been coerced into making those statements.
In early February 2011, the National Commission on Human Rights (Komnas
HAM) announced that it would investigate the fairness of Antasari’s trial. The
probe was launched in response to claims – made by Gayus Tambunan, infamously convicted of corruption within the Indonesian tax ofice – that Cirus
Sinaga, who led both his and Antasari’s prosecution, was involved in a plot
to sideline Antasari (Parlina 2011).6 Indonesia’s Judicial Commission (Komisi
Yudisial) also investigated allegations that the judges who decided his case
breached the judicial code of ethics by ignoring ballistic, forensic and other
evidence (Aprianto and Cipta 2011). At time of writing the Judicial Commission
4 Supreme Court Decision No. 1429 K/Pid/2010.
5 The following description draws from pp. 58–61 of Judge Surya Jaya’s judgment.
6 ‘Komnas to probe Antasari trial process’, Jakarta Post, 31/1/2011.
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
Anti-corruption reform in Indonesia: an obituary?
389
had completed its investigation and recommended to the Supreme Court that it
discipline the district court judges who had presided over Antasari’s trial. The
Commission concluded that the judges had indeed breached the Judicial Code
of Ethics and Behaviour Guidelines by ignoring the expert ballistic evidence,
and recommended their removal from adjudicative duties for six months. The
Supreme Court, which has the inal say on whether to impose most types of punishments upon judges, rejected the recommendation in early September 2011, on
the basis that the Judicial Commission lacked power to assess the technical–legal
correctness of judicial decisions (Hukumonline 2011d). (This ground is commonly
employed by the Supreme Court to avoid Commission scrutiny of its own judges
and judges under its control in the lower courts (Colbran 2009)). Antasari had
asked the Supreme Court to exercise its peninjauan kembali (‘review’) jurisdiction,
under which it could re-open his case and reconsider its decision. As this article
went to press, the Court had not yet rendered a decision.
STATUTORY REFORM: CRIPPLING THE KPK AND THE TIPIKOR COURT?
By November 2009, the national parliament had passed Law 46/2009 on the AntiCorruption Court in response to the 2006 Constitutional Court decision discussed
above. This statute addressed the Constitutional Court’s concerns about ‘dualism’
– the hearing of corruption cases by two types of courts with different conviction
rates, resulting in possible violation of the principle of equality before the law –
by giving the Tipikor Court exclusive jurisdiction over all corruption cases. But
the statute also made signiicant institutional changes to the Tipikor Court, and
implicitly to the KPK, that jeopardise future corruption convictions. Law 46/2009
required that by 29 October 2011 Tipikor courts be established in district courts in
Indonesia’s 33 provincial capitals (art. 35), a task the Supreme Court completed
within the deadline (Hukumonline 2011f).
At irst blush, expanding the Tipikor Court might seem like a boost for the
Court and for the anti-corruption movement. Yet it seems highly unlikely – perhaps impossible – that the success of the Jakarta Tipikor Court will be replicated
in these regional courts. Law 46/2009 gives the chair of the district court in which
the Tipikor Court is housed – a career judge – power to determine whether ad
hoc judges will make up the majority on each Tipikor court panel. Given that the
Supreme Court is having trouble inding enough ad hoc judges to ill these new
courts, they will probably constitute the minority in most cases. This appears to
have already begun happening in the Semarang, Surabaya and Bandung Tipikor
Courts (Hidayat et al. 2011). In these courts, it appears that three career judges
and two ad hoc judges preside over cases involving more than Rp 100 billion,
and that two career judges and one ad hoc judge decide cases involving less than
Rp 100 billion. Career-judge majorities are likely to win the day in split decisions.
The likely result is fewer convictions.
Law 46/2009 could carry even more dire consequences for the KPK. The
Law does not once mention the KPK. It mentions only general public prosecutors (penuntut umum) being able to prosecute before the Tipikor Court. This has
two important consequences. First, ordinary public prosecutors can now bring
claims before Tipikor courts – and have already done so. Given the widespread
corruption and incompetence within Indonesia’s prosecution service, the Tipikor
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
390
Simon Butt
courts will probably not be able to maintain a high conviction rate. They will be
more likely to ind fault with the evidence and arguments put by ordinary prosecutors than the Jakarta Tipikor Court has done for the prosecutors of the KPK.
Indeed, prosecutorial incompetence seems to have resulted in the Tipikor Court’s
irst acquittal, to which I turn below. Add to this the potential for majority careerjudge panels in regional Tipikor courts, and the result is that almost all corruption
cases will be controlled by ordinary prosecutors and judges – the very people
whose inluence the KPK and the Tipikor Court were established to circumvent.
Second, and perhaps more signiicantly, the KPK’s omission from Law 46/2009
leaves its prosecutorial function tenuous. According to press reports, this omission was not a drafting oversight (Handayani et al. 2009; Wright 2009; Kustiani
et al. 2009). Some parliamentarians – perhaps even a majority – had wanted to
excise the KPK’s prosecutorial powers but, in a compromise, the KPK’s role was
left ambiguous in Law 46/2009.
At the time of writing, the KPK continues to prosecute in the Tipikor courts.
Yet it is highly likely that defendants will seek to exploit this ambiguity and
argue that Law 46/2009 has, in fact, removed the KPK’s jurisdiction to prosecute,
along the lines of the Supreme Court judges’ challenge to the jurisdiction of the
TGPTK, discussed above. There are certainly reasonable legal arguments against
including the KPK’s prosecutors within the deinition of penuntut umum (Butt
2011: 120). If the KPK were to lose a challenge to its jurisdiction to prosecute, its
prosecutorial powers might be stripped away, leaving it as a mere investigative
institution. If this occurred, then ordinary prosecutors would regain complete
control over corruption cases.
More recently, politicians have pushed for revisions to the 2002 KPK Law and
the 1999 Anti-Corruption Law (amended in 2001). These statutes are critical to
the effective functioning of the KPK and the Tipikor Court. The KPK Law is the
statutory source for the KPK’s power to perform investigations, prosecutions,
wire-taps and the like. The Anti-Corruption Law deines and sets punishments
for various types of corruption, and arguably makes corruption easier to pursue
than most other types of crimes (Butt 2009b).
Proposed amendments to the 1999 Anti-Corruption Law, in circulation from
early 2011, explicitly remove the KPK’s prosecutorial function and reduce the
penalties for some corruption offences (Hukumonline 2011a). Fortunately, a public
backlash against the revisions, driven by the KPK and ICW, has led to the withdrawal of the amendments from parliamentary consideration to allow more public comment.
Amendments to the KPK Law have not yet been drafted. However, ICW
obtained the ‘terms of reference’ for the revisions and claims that they seek to
interfere with the KPK’s wire-tapping powers; to allow the KPK formally to
cease investigations (leaving open the possibility of this occurring in response to
bribery); and to increase the KPK’s role in corruption prevention, which would
presumably divert its attention from enforcement (Hukumonline 2011b). Amending the KPK Law reportedly sits at number four on the 2011 National Legislative
Program, a list of priority legislation that parliament should aim to enact within
the year (Hukumonline 2011a).
It is hardly surprising that Law 46/2009 and the proposed KPK and AntiCorruption Law revisions seek to enfeeble the KPK. In the months before Law
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
Anti-corruption reform in Indonesia: an obituary?
391
46/2009’s enactment, the KPK had been investigating parliamentarians for corruption and had conducted very public raids on their ofices. In particular, it
had investigated allegations that 30 parliamentarians had each received traveller’s cheques worth Rp 500 million to elect Miranda Goeltom as Bank Indonesia’s
deputy governor in 2004 (Hidayat and Febriyan 2011). By June 2009, the KPK
had formally charged four of them and by July it had publicly identiied 26 more
serving and former legislators as recipients of the cheques. The KPK has also
investigated parliamentarians for involvement in other corruption cases. In 2011,
ICW estimated that, once the KPK had completed its current investigations into
parliamentarians, more than 100 might be ensnared (Hukumonline 2011c). Many
parliamentarians and the political parties to which they belong had, and still
have, much to gain from a weakened KPK and Tipikor Court.
THE TIPIKOR COURT’S FIRST ACQUITTAL:
A GLIMPSE OF THE FUTURE
In late February 2011, the Central Jakarta Tipikor Court issued the irst acquittal
in its seven-year history. The defendant was Mieke Henriett Bambang, secretary
to Bank Indonesia Governor Burhanudin Abdullah from 2003 to 2008. She was
accused of impeding a KPK investigation into Abdullah.7 After searching Burhanudin’s ofice, the KPK had sealed off a cupboard in a computer desk (Hukumonline
2011a). Mieke had allegedly removed the seal and, the KPK claimed, had taken
some of the documents and given them to another Bank Indonesia employee.
Mieke denied any wrong-doing, claiming that she was following instructions to
put the documents in order (merapikan) and that she had not removed any material (Silalahi 2011).
The case was the irst brought before a Tipikor court by a public prosecutor.
According to the account of the case provided by Indonesia’s leading legal news
service, Hukumonline (2011c), the public prosecution’s performance was far below
the standard for which the KPK has become well known. The KPK usually sends
at least two prosecutors to the cases it prosecutes, and its indictments usually run
to hundreds of pages (Hukumonline 2011a). By contrast, in this case, the indictment
against the defendant was presented by only one prosecutor and was a mere ive
pages long.
The indictment was also legally lawed, the Tipikor Court decided. Article
142(3) of the Kuhap requires that indictments must be accurate, clear and complete. The indictment in this case appeared to fulil none of these requirements; it
did not clearly set out the crime the prosecution alleged the defendant had committed (Hukumonline 2011b). (Mieke’s lawyer even claimed that the indictment
had been largely copied and pasted from the summary of evidence that police
had submitted to prosecutors, and did not include the evidence of the ive KPK
oficers who had reported Mieke for impeding their work (Silalahi 2011)). This left
the Tipikor Court with little choice but to dismiss the case before witnesses were
called – a rare event in Indonesia (Hukumonline 2011b).
This case raises signiicant questions about prosecutorial competence and
resource allocation, particularly in corruption cases. It also casts doubt upon the
7 For a discussion of the Abdullah case, see Kong and Ramayandi (2008).
392
Simon Butt
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
public prosecution’s case selection criteria. Of all of its ongoing corruption cases,
this was hardly an appropriate one to choose as its irst to bring before the Tipikor
Court. The defendant had not even been accused of committing corruption herself. All in all, this case does not bode well for non-KPK prosecutions in Indonesia’s Tipikor courts.
CONCLUSION
Mieke’s acquittal is likely to be the irst of many. In August and September 2011
alone, the Bandung Tipikor Court acquitted three defendants in trials tainted
by allegations of judicial impropriety, including the bribing of judges and questionable judicial reasoning. The Surabaya Tipikor Court had acquitted dozens of
defendants by the end of September 2011 (Anton 2011). These acquittals were
cases brought by ordinary public prosecutors.
Of particular signiicance is that on 11 October 2011, for the irst time, a defendant whom the KPK had prosecuted was acquitted. This was deeply embarrassing for the KPK, which had been able to deny responsibility for previous Tipikor
court acquittals by pointing out that ordinary public prosecutors – not the KPK
– had prosecuted them. The defendant was Mochtar Mohammad, the former
mayor of Bekasi, whom the KPK had prosecuted for corruption associated with
the regional budget. According to a Hukumonline report on the case (Hukumonline
2011e), the Bandung Tipikor Court found insuficient evidence to substantiate the
charges made against the defendant. Hukumonline also reported that, before reading out its reasons for the acquittal, the panel of judges declared that ‘the courts
are an independent pillar of democracy and are free of pressure from anyone,
including trial by the press. The courts are, in fact, not only institutions that punish, but ... also institutions that provide justice’. If this statement is taken as an
indication of future intent, the Bandung Tipikor Court might be expected to issue
many more acquittals.
Even though attempts at discrediting Bibit and Chandra back-ired, and impropriety in Antasari’s trial might still be revealed, the institutional features of the
Tipikor Court and the KPK that set them apart from ordinary police, prosecutors and courts are being chipped away. Ordinary police, prosecutors and judges
appear poised to regain the exclusive control over corruption cases that they lost
to the KPK and the Tipikor Court under the 2002 KPK Law. If the current trajectory continues, within a few short years the Tipikor Court and the KPK will join
the growing list of Indonesia’s failed anti-corruption initiatives.
REFERENCES
ADB and OECD (Asian Development Bank and Organisation for Economic Co-operation
and Development) (2006) Anti-corruption Policies in Asia and the Paciic: Progress in Legal
and Institutional Reform in 25 Countries, Asian Development Bank, Manila.
Anton, A. (2011) ‘Red report card for Corruption Court’, Tempo, 5 October.
Aprianto, Anton and Cipta, Ayu (2011) ‘Antasari’s quest’, Tempo, 27 May.
Aspandi, Ali (2002) Menggugat Sistem Hukum Peradilan Indonesia Yang Penuh Ketidakpastian
[Challenging an Indonesian Judicial System that is Full of Uncertainty], Lembaga
Kajian Strategis Hukum Indonesia (Institute for Strategic Study of Indonesian Law)
and Lutfansah Mediatama, Surabaya.
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
Anti-corruption reform in Indonesia: an obituary?
393
Assegaf, Ibrahim (2002) ‘Legends of the fall: an institutional analysis of Indonesian law
enforcement agencies combating corruption’, in Corruption in Asia: Rethinking the Governance Paradigm, eds Timothy Lindsey and H.W. Dick, Federation Press, Sydney.
Bolongaita, Emil P. (2010) ‘An exception to the rule? Why Indonesia’s Anti-Corruption
Commission succeeds where others don’t – a comparison with the Philippines Ombudsman’, Anti-corruption Resource Centre, Bergen (Norway), available at .
Butt, Simon (2009a) ‘”Unlawfulness” and corruption under Indonesian law’, Bulletin of
Indonesian Economic Studies 45 (2): 179–98.
Butt, Simon (2009b) ‘Indonesia’s anti-corruption drive and the Constitutional Court’, Comparative Law Journal 4 (2): 186–204.
Butt, Simon (2011) Corruption and Law in Indonesia, Routledge Contemporary Southeast
Asia Series, Routledge, London.
Butt, Simon and Lindsey, Timothy (forthcoming) ‘Uninished business: law reform, governance and the courts in post-Soeharto Indonesia’, in Indonesia, Islam and Democratic
Consolidation, eds Mirjam Kunkler and Alfred Stepan, Columbia University Press.
Colbran, N. (2009) ‘Courage under ire: the irst ive years of the Indonesian Judicial Commission’, Australian Journal of Asian Law 11 (2): 273–301.
Dhyatmika, Wahyu, Hadad, Toriq, Damayanti, Ninin, Tauiq, Rohman and Tauik, M.
(2009) ‘How to cage a house lizard’, Tempo, 16 November.
Diansyah, F. (2009) Weakening of Corruption Eradication Commission (KPK) in Indonesia: Independent Report, Indonesia Corruption Watch and National Coalition of Indonesia for
Anticorruption, Doha, November.
Fenwick, Stewart (2008) ‘Measuring up? Indonesia’s Anti-Corruption Commission and the
new corruption agenda’, in Indonesia: Law and Society, ed. Timothy Lindsey, 2nd edition,
Federation Press, Sydney.
Hamzah, Andi (1984) Korupsi di Indonesia: Masalah dan Pemecahannya [Corruption in Indonesia: Problems and Solutions], Gramedia, Jakarta.
Handayani, Anne L. and Aprianto, Anton (2009) ‘When one equals none’, Tempo, 26 October.
Handayani, Anne L., Aprianto, Anton, Muhtarom, Iqbal and Wibowo, Eko Ari (2009) ‘Pulling the tiger’s teeth’, Tempo, 28 September.
Handayani, Anne L., Kustiani, Rini and Nilawaty, Cheta (2009) ‘Tragedy of the dapper
prosecutor’, Tempo, 11 May.
Haryadi, Rohmat (2009) Chandra–Bibit: Membongkar Perseteruan KPK, Polri, dan Kejaksaan
[Chandra–Bibit: Breaking Down Hostilities between the KPK, the Police, and the Prosecution], Mizan Media Utama, Jakarta.
Hidayat, Bagja and Febriyan (2011) ‘Go to jail ... directly to jail’, Tempo, 15 February.
Hukumonline (2009) ‘DPR dan (anti) korupsi “sehidup semati”: catatan awal tahun 2009
[The DPR and (anti) corruption as bedfellows: comments in early 2009]’, 5 January.
Hukumonline (2011a) ‘Pertama kali kasus kejaksaan disidang di Pengadilan Tipikor Jakarta
[The irst public prosecution case heard in the Jakarta Tipikor Court]’, 31 January.
Hukumonline (2011b) ‘Pengadilan Tipikor Jakarta bebaskan seorang terdakwa [Jakarta
Tipikor Court frees defendant]’, 21 February.
Hukumonline (2011c) ‘Busyro: UU KPK tak perlu direvisi [Busyro: no need to revise KPK
Law]’, 3 March.
Hukumonline (2011d) ‘KY–MA kordinasi untuk kasus Antasari [The Judicial Commission
and Supreme Court will coordinate on the Antasari case], 15 September.
Hukumonline (2011e) ‘Majelis menilai pasal di UU Pemberantasan Tipikor tidak jelas [Panel
considers articles in the Corruption Eradication Law to be unclear]’, 11 October.
Hukumonline (2011f) ‘Jumlah Pengadilan Tipikor lengkap 33 [Number of Tipikor Courts
complete at 33]’, 22 October.
Downloaded by [Universitas Maritim Raja Ali Haji] at 19:19 18 January 2016
394
Simon Butt
Jansen, David (2010) ‘Snatching victory’, Inside Indonesia 100, available at .
Kong, Tao and Ramayandi, Arief (2008) ‘Survey of recent developments’, Bulletin of Indonesian Economic Studies 44 (1): 7–32.
KPK (Komisi Pemberantasan Korupsi, Corruption Eradication Commission) (2011) Laporan
Tahunan Komisi Pemberantasan Korupsi 2010 [KPK Annual Report 2010], KPK, Jakarta.
Kustiani, Rini, Aprianto, A., Wibowo, Eko Ari and Sutarto (2009) ‘A “middle of the road”
policy’, Tempo, 12 October.
Parlina, Ina (2011) ‘Judicial Commission says Antasari trial ishy’, Jakarta Post, 13 April.
Pearson, Zoe (2001) ‘An international human rights approach to corruption’, in Corruption
and Anti-corruption, eds Peter Larmour and Nick Wolanin, Asia Paciic Press, Canberra.
Schütte, Soie Arjon (2011) ‘Appointing top public oficials in a democratic Indonesia: the
Corruption Eradication Commission’, Bulletin of Indonesian Economic Studies 47 (3): 355–
79, in this issue.
Silalahi, Mustafa (2011) ‘Pengadilan Tindak Pidana Korupsi: sederhana membawa bebas
[Tipikor Court: mediocrity brings acquittal]’, Tempo, 7 March.
Syamsuddin, A. (2007) ‘Benarkah KPK tidak pernah bersalah? [Is it true that the KPK is
never wrong?]’, Kompas, 27 February.
Wagner, Benjamin B. and Jacobs, Leslie Gielow (2008) ‘Retooling law enforcement to investigate and prosecute entrenched corruption: key criminal procedure reforms for Indonesia and other nations’, University of Pennsylvania Journal of International Economic Law
30 (1): 183–266.
Wright, Tom (2009) ‘Indonesia dilutes antigraft court’, Wall Street Journal, 30 September.
Yunto, E. (2008) ‘Mencermati pemberian SP3 kasus korupsi [Examining the cessation of
police investigations in corruption cases]’, Hukumonline, 25 November.