Recently, at the height of the presidential election, the public was surprised by the House of Representatives’ (DPR) decision to approve the revision of the Legislative Institutions Law (MD3). Part of the revision has sparked controversy. For example, according to the amendment made to Article 245 of the law, any summons request of a House lawmaker by, among others, the Corruption Eradication Commission (KPK) must first seek permission from the House’s ethics council. If after 30 days the council does not give written permission, the KPK may go ahead and summon the lawmaker.
Some, especially House members, argue that the MD3 is aimed, among other things, at creating a more regulated corruption investigation process (supposedly by making it longer).
Many others disagree with this argument, however. The KPK, for example, believes that this revision signals a more aggressive effort to hinder corruption eradication efforts in Indonesia.
According to a statement made by KPK chairman Abraham Samad, the amendments to the Legislative Institutions Law is evidence of the current government’s lack of seriousness in eradicating corruption.
Furthermore, the KPK’s deputy chairman, Busyro Muqoddas, argued that the amendments were not in line with the principle of “equality before the law”, as they implied that House members would seem to enjoy some sort of “immunity” from prosecution.
Nevertheless, the KPK believes that regardless of what the substance of the revised law will be, it will have no effect on the investigative processes carried out by the commission.
As Abraham explained, the existing corruption and KPK laws are lex specialis in nature, regulating as they do special crimes and, thus, they go beyond the scope of the revised MD3 law. Consequently, Abraham said he believed that the KPK could still directly summon House members for questioning in corruption investigations.
Despite the KPK’s confidence that the amended Legislative Institutions Law will not affect its investigations, it is necessary to note that the commission needs to anticipate any further action that may be taken to hinder corruption eradication in Indonesia. For example, there is always a possibility in the future that such a law will be revised again to literally shield lawmakers from the KPK’s reach.
In principle, the success of any fraud investigation depends largely on the ability of investigators to maintain the probed party’s natural setting as long as needed. In this process, the element of surprise is a crucial factor in ensuring that evidence is not tampered with or destroyed.
The ability to immediately summon anyone who is allegedly involved in corruption is an important means to minimize the chance by the suspected offender to thwart the investigation. Any delay in doing so may significantly affect the outcome of an investigation.
Evidence from around the world suggests that the difference between being able to summon fraud suspects in time and not being able to do so may result in the success or failure to prosecute them. This is to say that if the KPK ever loses this power, it will lose its effectiveness in investigating corruption.
With the excuse of promoting transparency throughout the process, many parties tied to corruption offenders will try to prolong the evidence-gathering process to provide a chance to devise countermeasures.
In practice, resistance is likely to occur in every corruption investigation; hence, a solid anticorruption institution needs to be able to adapt to any changes in its working environment. In an environment where pressure and resistance are part of everyday life, continually improving its methods for gathering and analyzing evidence should be part of the institution’s strategy. For example, the methods used to gather evidence as quickly as possible without corruption suspects knowing it may vary across cases and, thus, selecting and refining the right method for each case is essential to ensure that sufficient evidence is collected for prosecution.
Compared to similar institutions in other countries, the KPK is known to be understaffed and underfunded. At some points, this creates limitations in responding to the numerous corruption allegations and may give offenders enough time to prepare counterattacks.
Therefore, with a new government due to take over later this year, the commission must prepare itself with better staff, skills and facilities because corruption eradication will always be an uphill struggle, full of unpredictability.
The writer is the director of the Center for Forensic Accounting Studies at the accounting department of the Islamic University of Indonesia. He obtained his master’s and doctorate in forensic accounting from the University of Wollongong, Australia.
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