Monday, April 04, 2011

Designing Anti Corruption Policy: A Response to Cafe Salemba's Law for Sale

A couple of days ago I found this interesting article in Cafe Salemba. Their basic idea is that competition among law enforcers in fighting corruption, i.e. the Commission of Corruption Eradication ("KPK") and the General Attorney Office ("Kejaksaan") is good as it will increase the cost of bribery and the efficiency of the law enforcers. I beg to differ with this approach, since this will only work under 2 basic assumptions: (i) both law enforcers work in a professional and clean manner or both take bribes seriously; and (ii) cases can be easily transferred between law enforcers (though it seems impossible under the double jeopardy rule).

Why do we need the above assumptions in order to ensure that the competition system will work? Because if not, one of the law enforcers can act as a save haven for the bad guys simply by guaranteeing the villains that their bribe will work and that they will be protected from the other law enforcer who don't receive any form of bribery, i.e. if you have been handled by the corrupted law enforcer, there is no way that you will be transferred to the other law enforcer. As a result of this, instead of creating healthy competition among law enforcers, we actually create another super criminal organization. Now this is what I called as a true "Law for Sale".

Designing anti corruption policy is indeed problematic and will need a thorough analysis. However, I would like to raise some general ideas that might be used in fighting corruption. Hopefully this can trigger a bigger discussion on how we can arrange the policy for the greater good of society. My post will deal with two designs, the design of penal sanctions and the design of the law enforcers (as a response to Cafe Salemba's post)

Designing Penal Sanction for Anti Corruption Policy

In my opinion, with respect to the anti corruption policy, the main focuses of our penal sanctions should be: (i) to ensure that the Government can retrieve all of the stolen assets (together with interests and any lost profits due to the inability to use those assets for certain period of time, and also the costs of investigating the cases); (ii) to prevent corruptors from repeating their criminal conduct and buying their freedom from any penal sanction; and (iii) to prevent the birth of new corruptors by imposing correct incentives.

Does Indonesian anti corruption policy follow the above focuses? I don't think so. What I see is that we only focus on sending the corruptors to prisons in the name of justice. I hate to say this, but it's useless. What's the purpose of sending these bad guys to the prison if you can't retrieve anything valuable from them and if they can still buy their way out of it? Prison only creates additional costs and expenses. It would be cheaper if we just give them death penalty. But then again, what for?

The biggest problem of corruption is that it diminishes the state assets. Those assets are supposed to be used for the greater good of the society, and we pay some of those assets from our taxes. Now, if the end result of our anti corruption policy is only to spend additional money to conduct the investigation for the purpose of paying the living expenses of these evil men in the prison, the entire policy is a big failure! It would be cheaper if we just let these corruptors run free. At least we don't need to pay for the expensive investigation process.

If we really want to eradicate the corruption in accordance with the above focuses, the penal sanctions should be, among others: (i) taking over the entire assets of the corruptors (thus getting back the missing assets together with all of the interets and the lost profits); (ii) kicking out the corruptors from their official position and preventing them from getting any governmental position for their entire life (thus preventing their ability to repeat their criminal activities); and (iii) announcing the name of the corruptors in publicly accessed media (such as major newspapers) as a sample for their comrades (thus providing a good incentive for other would born corruptors to not follow the same path).

Should we send the corruptors to the prison with the sanctions above? I believe, no. Our main interests have been satisfied, why bother imposing additional costs to the tax payer by sending these guys to the prison? What harm can these people do if they don't have any funds and access to perform their criminal activities?

Designing Law Enforcers for Anti Corruption Policy

In designing the policy for Anti Corruption Law Enforcers, our main focuses should be: (i) to create a task force that can deal with anti corruption cases quickly and efficiently; and (ii) to provide a better incentives for these law enforcers to perform properly.

My first suggestion would be: adding more resources to the law enforcers which means that we don't need competition among law enforcers. What we need is cooperation and collaboration! If there are 2 law enforcers, their performances should be linked. So a bad or good performance of one law enforcer will affect the other law enforcer. This can be implemented through the financial compensation of both law enforcers. I would prefer one single law enforcer though and add more resources to such body.

My second suggestion: we can provide a good financial incentive in the form of granting a portion of the recovered state assets to the law enforcer who can successfully secure those assets from the corruptors. By doing this, we increase the cost of bribery to a new level. Imagine how much a corruptor must pay now to save his ass if he must compete with a portion of his own entire assets? This is also a good incentive to increase the performance of the law enforcers. Now, other than receive an honor as clean and professional law enforcers, they can receive a better financial benefit which is connected with their actual performance. It's time to bring this anti corruption fighting to a whole new business. This is my version of "Law for Sale".

6 comments:

Anonymous,  Thursday, April 07, 2011 6:20:00 PM  

considering how the current justice system works, no wonder how people shift their view on corruption from malign to goal

asti Wednesday, April 13, 2011 10:46:00 PM  

Interesting post! Stumbled here from A Fatih Syuhud's blog.

I have always thought that if an official was found guilty for corruption and was sentenced to jail, then automatically the stolen assets are handed back to the rightful owner, i.e. the Government. Similar to if I got mugged and my bag is stolen, then once the mugger is caught I'll get my bag back! Is this not so then under the Indonesian Law?

I am still on the fence when it comes to death penalty, but somehow, in the case of corrupt Indonesian government officials, I think it may just be the sole solution. The whole institution, from the top-most level down to the bottom, is already so rotten that the only thing left to do is just to cut the whole tree down.

Pramudya A. Oktavinanda Friday, April 15, 2011 2:42:00 PM  

On getting the assets back, unfortunately no. There is no automatic mechanism, which is bad.

On death penalty, I don't mind, but since it is reversible, the costs for the trial tend to be higher to avoid pulling a wrong judgment. Therefore, it might be easier to focus on collecting the money and preventing the officials from regaining power. At least if the judgment is wrong, it still can be reversed.

asti Sunday, April 17, 2011 8:26:00 AM  

So how does the government get the "corrupted" assets back then? Would that need a separate procedure that's done after the guilty verdict? Or is it done in parallel? Does the same apply to my thief analogy, i.e. if a thief stole my possession, it does not straight away mean I get it back once he's caught and ruled as guilty?

Sorry for all the questions! I just can't comprehend why it will not be done automatically...

and yes, I take your point on the death penalty. I just think there should be a bigger "stick" to stop people from being corrupt!

Pramudya A. Oktavinanda Thursday, April 21, 2011 5:06:00 PM  

Sorry for taking a long time to reply your comments. I'm just released from the hospital.

Yes, the process can be done in parallel, but the state attorney must clearly state in its prosecution that the state demand the convicted to return the assets and this should also be stated in the court's judgement. Unfortunately, I haven't heard any news where the court actually order to convicted to return the assets.

On death penalty issues, yes, we need to find a bigger stick to punish the criminals. Maybe we should use the old law that has been prohibited under the Indonesian Civil Code, i.e. private law death. This is a sanction where you will be considered as legally non existent. You cannot enter into a contract, marry, etc. You will not have any rights as a citizen. That would be the ultimate sanction, I guess.

astina Sunday, May 01, 2011 1:12:00 AM  

Oh, hope the hospital stay wasn't for something too serious and that you've recovered!

Re returning the assets, thanks for the clarification! I'll certainly be on the lookout for such court order in any new corruption cases. I wonder why they haven't been doing it... more backdoor deal? *sigh*

What an interesting concept, the private law death! If they no longer have any right as a citizen, does that mean that they don't have any responsibility either as a citizen? i.e. if they're caught breaking the law (e.g. stealing), would the police be able to catch and prosecute them? Can you sue someone who is legally non-existent?

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