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The KPK-police row: An aberration or the norm?
The arrest of deputy Corruption Eradication Commission (KPK) chief Bambang Widjojanto by the National Police has sparked national concern and controversy for weeks
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he arrest of deputy Corruption Eradication Commission (KPK) chief Bambang Widjojanto by the National Police has sparked national concern and controversy for weeks.
In particular, between Jan. 25 and Feb. 3, 2015, leading daily Kompas repeatedly published reports of the urgent need to grant the KPK the same immunity awarded to the Indonesian Ombudsman (ORI), namely the immunity (of its officials) from prosecution and arrest in the course of carrying out their duties.
Although the Ombudsman was established two years earlier than the KPK, Indonesians in general are more familiar with the KPK and its work. One factor is probably the public's lack of knowledge about an 'ombudsman', a Swedish word which refers to an institution with independent character responsible for monitoring the administrative activities of the executive, legislative and judicial branches of government.
Another factor is the fact that many of the high-profile corruption cases under the remit of the KPK receive great publicity and thereby increase the KPK's profile.
The operations of an ombudsman are the earliest and most widespread set of standard operating procedures for government watchdogs. Hundreds of democracies around the world have adopted the ombudsman system since its establishment in Sweden more than 200 years ago.
Many would assume comparing the KPK to the ORI is akin to comparing apples to oranges. If we look closer, however, it would be fair to say it is more like comparing red apples to green apples.
In other words, they are not entirely different creatures.
In fact, the KPK and the ORI to a certain extent have much in common. Structurally, they are both independent agencies, operating outside of the three branches of government. Their top executives are strictly nonpartisan and citizens with relevant professional experience. They have to go through screenings with the President and House of Representatives before assuming their jobs.
These two watchdogs share features with ombudsman institutions worldwide. Functionally, the KPK and the ORI are empowered to monitor any abuse of power on the part of the three branches of government.
Their institutional mandates include powers to receive citizens' grievances and complaints, conduct investigations based on such complaints or on the agencies' own initiative, and publicize government officials' administrative misconduct if the alleged officials fail to take action despite being informed of their misconduct.
The primary difference between the KPK and the ORI is in the area of their jurisdictions. As straightforward as its name, the KPK's main duty is to investigate corruption in the government with a view to eradicating such practices.
Whereas the domain of the ORI's operations is more investigating indications of maladministration or poor public service based on citizens' complaints (which may or may not be related to corruption).
Consequently, in order to carry out its mandate, the KPK is legally empowered with wiretapping and prosecuting powers, yet it lacks immunity from either police arrest or prosecution. On the other hand, the ORI does not have the extra powers awarded to the KPK. Analogous to a doctor giving a prescription to patients, the ORI may only submit a recommendation for corrective measures to institutions being complained against. Nonetheless, it possesses the immunity that eludes the KPK.
Turning to the ORI first, it makes perfect sense for the ORI to have the 'immunity clause' for it serves as an incentive for the ORI to 'give a voice to the voiceless' (a phrase commonly used by scholars of ombudsmanship) without fear of prosecution from those within the government who are the subject of complaints and seek to silence them.
The ORI is vulnerable enough with its lack of sanctioning powers such as wiretapping and prosecution. The 'immunity clause' is therefore necessary protection for the ORI, which is designed to protect the less powerful.
In the same vein, it is arguable that the KPK should also be granted similar immunity. But there are concerns about the long-term risk of doing so: immunity would provide the KPK an excessive amount of power.
Having the authority to prosecute suspects and perform wiretapping procedures with immunity from arrest and prosecution could turn the KPK into a supreme independent watchdog agency above the law.
Note that the appointment of KPK commissioners depends on political decisions made by the President and the House and therefore, an independent watchdog agency with such a position is susceptible to serving the interests of the power brokers.
So, how can watchdog agencies such as the KPK and the ORI mitigate the untamed political contestation in Indonesia's failing democracy while they are vulnerable to a certain extent? There seems to be a pattern in the design of each government watchdog agency, in which each has a certain degree of vulnerability so that they complement each other within the network of multiple government watchdog agencies, and not substituting or cannibalizing each other's legitimacy. Such a design minimizes the chance for leaders to use any of these agencies of government accountability as their political vehicle.
In the context of resolving the KPK-police standoff, the nature of the current impasse is so extraordinary and exceptional that it should not be used so easily to justify the 'immunity clause' as a panacea for KPK crises.
For in moments like this, we should be aware of the saying that 'hard cases make bad law'. In other words, cases of this extreme rarity are likely to become a poor basis, and should not be used, to promote or formulate general law that would cover a wider range of less-extreme cases.
The risk of not granting immunity to the KPK is indeed the emergence of cases such as today's KPK-police conflict. But if we follow the works of political scientists such as Moreno, Crisp and Shugart (2003) on horizontal accountability, it is by design that institutions of accountability such as the KPK and the ORI merely play a 'fire alarm' role in Indonesia's democracy.
The key is intervention by the President as the nation's chief executive. Ideally, like a firefighter who rushes to a burning site after an alarm breaks out, President Joko 'Jokowi' Widodo should respond to these fire alarms through decisive executive actions.
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The writer is 2014 Arryman fellow at Northwestern University, Evanston, Illinois.
