W

hile waiting for the new commissioners to be selected, the Corruption Eradication Commission (KPK) is facing a new challenge as the House of Representatives have officially proposed a revision of KPK Law No. 30/2002. According to the House, the amendment is nothing more than part of the efforts to strengthen the country'€™s anticorruption agency.

Opposition has loomed against the initiative for fear that it will weaken the KPK, as it will strip it off its powers in uncovering corrupt acts in Indonesia. On the other hand, a number of anticorruption scholars are willing to give the revision a chance so long as it actually strengthens the commission.

Without debating the motives behind the House'€™s move, the most crucial issue, however, is what strengthening the KPK truly means.

Every anticorruption agency (ACA) in the world is essentially a demonstration of its government'€™s commitment to addressing corruption. Nevertheless, many experts still believe that the creation of an ACA is by no means a panacea to eliminate corruption.

In fact, despite the success of Singapore and Hong Kong, as far as worldwide experience is concerned, there are only a few examples of successful ACAs on the planet.

Generally, an anticorruption agency comes with a mission of combating corruption and instilling anticorruption norms and culture in the society. Hong Kong'€™s Independent Commission against Corruption (ICAC), for example, is often regarded as one of the most successful antigraft agencies in the world for its achievements in investigating and prosecuting corrupt senior officials, as well as changing society'€™s ethical climate by means of education, outreach and empowerment of citizens in monitoring and detecting corrupt practices. ICAC is also seen as successful in changing the moral tone of a once corrupt government.

Among the lessons that can be learned from successful (and failed) anticorruption agencies is that an ACA'€™s success can only be attained when the supporting environment (e.g. functioning courts and a free press) and appropriate background conditions (e.g. political and economic stability and protection for antigraft supporters) are in place and maintained.

Many experts also believe that an antigraft agency must be free from political interference with a clear reporting hierarchy that is under close supervision by an independent oversight committee. An important part of the process in achieving an ACA'€™s mission is the detection and prosecution of corruption and its offenders.

However, in practice, due to the nature of corruption and its environment, unlike other inquiry processes, uncovering corruption cases requires a special approach by a special group of people.

However, many have misunderstood the whole process of corruption investigation as identical to a company'€™s day to day activities (e.g. conducting data collection and analysis for market research).

For example, many would say that the corruption investigation process should be fully transparent right from the start so that everybody knows everything about the whole process to ensure that at the end of the day all of its objectives are met. Well, that is just nonsense.

First of all, unlike any other inquiries, corruption investigation is carried out within a highly adversarial environment, especially within a country where corruption has been part of the so-called '€œsocietal schemata'€. The word '€œadversarial'€ simply means that many would love to see the investigators fail to perform their duties and some will actually do anything to ensure their failure.

Due to the sensitive nature of the investigation, a proper '€œpredication'€ needs to precede any corruption investigation. This includes gathering sufficient preliminary evidence on corruption allegations, which requires access to various sources of information prior to the commencement of the process.

Even within this early stage of investigation, the pressure from the adversarial environment will be felt by the investigators, which will require them to employ special procedures to minimize the risks. Such pressure will only mount as the investigation progresses to the point where personal safety may become an issue.

This is part of the reason that secrecy is a key to the success of any corruption investigation, which ideally must be maintained from the start to the end, or at least until all the required evidence is gathered.

However, the public will demand an anticorruption agency inform them about the progress of the ongoing investigations particularly in high profile corruption cases. This is where the agency needs to carefully select what information should be kept secret and what should be open to public consumption for the sake of the investigation.

During evidence-gathering, especially after suspects have been named and the public begins to guess who is next, all eyes will be on the investigators and this is where things get (really) tricky.

Unconventional means of evidence-gathering may need to be employed to unearth the otherwise untouchable evidence. At this stage, the use of surveillance, such as wiretapping, could be among the very few options available for completing the evidence gathering process.

As often mentioned in the media, KPK'€™s wiretapping power has sparked criticisms among some politicians for reasons such as privacy infringements.

As far as crime investigation is concerned, surveillance programs have always been controversial anywhere in the world in particular due to the development of technology, which makes such activities easier (and cheaper) to perform.

Nevertheless, many technology experts believe that there are over 30 important issues that can be used to challenge the use of surveillance by law enforcement institutions including anticorruption agencies, which fall into three major categories.

The first category is means (e.g. the possibility that the technique and device used will harm the subject physically and psychologically and the possibility that the technique and device used will produce invalid results).

The second category is the data collection process (e.g. the possibility of negative effects on those beyond the subject and the subject'€™s consent to the collection process).

The third category relates to the usage of the results (e.g. the legitimacy of data collection goals and the clarity of the link between the collected data and the predetermined goal).

Despite the legal justification, as an institution that uses surveillance in its line of work, the KPK must be able to address all the critical issues related to its wiretapping activities.

Should the commission lose its right to conduct surveillance it will no longer be able to create the '€œsurprise element'€ to maintain the natural setting (e.g. integrity of evidence) of the audited parties.

In conclusion, the KPK is unique in its missions and the way it achieves its objectives. Strengthening the KPK means we first need to understand its uniqueness that sets it apart from other agencies.

With regard to the amendment of the KPK law, strengthening the KPK means, among others things, providing legal instruments to support it carrying out proper investigative procedures, including, but not limited to, the secrecy of the evidence- gathering process, wider access to sources of data and information and independent and capable investigators. Freedom from political intervention and protection for its staff is also of critical importance.
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Corruption investigation is carried out within a highly adversarial environment.
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The writer, the director of the Center for Forensic Accounting Studies at the Islamic University of Indonesia, Yogyakarta, is currently an Endeavour research fellow at the University of Wollongong Australia.