Sofie A. Schuette, Jakarta – In view of the recent reporting by The Jakarta Post on the Constitutional Court's decision to give lawmakers three years to enact specific legislation governing the Anticorruption Court, with the latest report, A corruption body, a witch-hunt and a counterattack, appearing on Jan. 5, some further reflection seems necessary.

The public debate centers on the Constitutional Court's ruling on a series of requests for a constitutional review of various articles of Law No. 30 of 2002 on the Corruption Eradication Commission, which were filed by a number of applicants in August and September 2006, including persons prosecuted by the Corruption Eradication Commission (KPK) and subsequently convicted of corruption by the Anticorruption Court.

In the Constitutional Court's decision last month, all of the challenges were dismissed except for the one concerning the Anticorruption Court. The Constitutional Court found that the existence of the Anticorruption Court, with its own procedures and jurisdiction to only hear cases prosecuted by the KPK, resulted in legal dualism that needed to be addressed through the enactment of specific new legislation providing a firm legal basis for the Anticorruption Court within a maximum of three years. Until then, however, the relevant provisions of Law No. 30 remain in effect and the Anticorruption Court, as currently constituted, is able to continue its work.

Under Law No. 30 of 2002, two new institutions were established, the KPK and a special court to try corruption cases, which was constituted as a chamber of the Central Jakarta District Court, although the jurisdiction of both institutions extended to the entire territory of Indonesia. The underlying reasons that prompted the national legislature to set up these new institutions was the fact that corruption seriously impairs national development and was not being handled effectively by the existing agencies.

Many believed – and continue to do so – that the establishment of an independent commission with a strong mandate for both prevention and enforcement, and a special court to try graft cases, was the last resort to eradicate corruption, which has become so deeply and firmly entrenched in this society.

In late 2004, the KPK brought its first case before the Anticorruption Court, to a bench consisting of two career judges appointed by the chief justice and three non-career judges appointed by the President. Since its establishment in 2004, a total of 20 verdicts handed down by the Anti-Corruption Court have achieved final and conclusive legal effect.

Twenty-three cases are currently being heard by the Court: 11 at first instance, one at the appellate level, and eleven at the Supreme Court (final appeal) level.

It is true, as argued in the applications to the Constitutional Court, that none of the cases brought before the Anticorruption Court by the KPK have resulted in acquittals. It is not true, however, that the prosecution of a case by the KPK will automatically result in a guilty verdict.

Rather, the fact that the KPK's success rate has been so outstanding is the result of solid case-building based on the careful gathering of evidence. The high success rate may also be interpreted as a sign of clean court proceedings.

The KPK receives dozens of complaints and reports about alleged corruption cases every day – about 16,000 to date, in all. However, it is a comparatively small organization and can only go after a limited number of cases, while turning over others to the police, prosecution service and state auditors.

The KPK was not designed or intended to handle all corruption cases in Indonesia, but rather to prosecute cases of major public importance, to oversee and coordinate the work of other agencies in the fight against corruption, and to serve as a catalyst for reform. From the very beginning, it has been made abundantly clear that the majority of corruption cases will continue to be investigated and prosecuted by the police or the prosecution service.

In fact, considerations concerning the need to have an Anticorruption Court to hear all corruption cases, whether from the KPK or the prosecution service, were already adduced by the KPK to the government following Presidential Instruction No. 5 of 2004 on the Acceleration of the Fight against Corruption, and to the committee drafting amendments to the existing anticorruption laws – Law No. 31 of 1999 and Law No. 20 of 2001 – a process that is still underway at the present time.

Considering the time limit of three years the Constitutional Court has given lawmakers, it is strongly recommended that the government submit new legislation reconstituting the position of the Anticorruption Court to parliament within the next six months. Furthermore, it is highly desirable that parliament prioritize the deliberation and passage of such a bill so that it can be promulgated by the President this year.

This would give the Justice and Human Rights Ministry, the Finance Ministry and the Supreme Court two years to prepare for the establishment of special chambers to handle corruption cases, including the selection and training of non-career judges for these courts.

Experience with the establishment of the existing Anticorruption Court as a chamber of the Central Jakarta District Court shows the importance of thorough preparation to ensure the timely availability of the necessary funding and infrastructure.

There is certainly a lot that will need to be discussed in detail, decided on and prepared over the next three years. While doing all this, the overriding common cause should be constantly kept in mind: the eradication of corruption and the promotion of legal certainty and public welfare.

[The writer is the international anti-corruption advisor to the KPK.]