Was it a potential conflict of interest for Indonesia’s President Joko Widodo to award state honors to six judges on a court that will rule on petitions contending that his government’s landmark new Omnibus Law is unconstitutional?
Yes, say some Indonesia lawyers. No, insists the president’s chief of staff.
Considerable controversy has surrounded the massive (1,187-page) “job creation” law pushed by Jokowi, as the president is known, and passed by the parliament in October. In one go, the bill amends nearly 80 existing laws in a bid to help Indonesia compete for needed manufacturing investment. On November 11, nine days after Jokowi signed the bill, he awarded national honors to dozens of Indonesians, including to six judges on the Constitutional Court that will rule on the various petitions seeking to strike down the Omnibus Law.
The awards raised eyebrows and spurred some discussion of what constitutes conflict of interest, a topic that doesn’t get much attention in Indonesia.
“Conflict of interest as a concept is not very well understood by the Indonesian people,” Jakarta-based lawyer Arief Surowidjojo wrote in a paper for a 2007 conference on the subject. The proceedings of the conference were later published by the Asian Development Bank and the Organisation of Economic Cooperation and Development (OECD).
Noke Kiroyan, chairman of the Indonesian national committee of the International Chamber of Commerce, describes conflict of interest as “a totally alien concept in Indonesia,” which only started to get attention after the fall of Suharto in 1998. The Indonesian leader’s departure came amid a clamor to end the “KKN” (collusion, corruption, and nepotism) that had characterized the last 10 or so of his 32 years in power.
According to Kiroyan, who has been an executive with several multinational firms, the only people talking about conflicts of interest are those in the circle of public companies, who are aware of the various regulations of the stock exchange and the doings of the financial authorities, and that’s just a “tiny segment of the Indonesian business world.” Outside of that, conflict of interest is addressed “only by activists advocating good governance in the public sector and business.”
The OECD defines conflict of interest as a situation in which “a public official has private-capacity interests which could improperly influence the performance of his or her official duties and responsibilities.”
In the case of Indonesia’s Constitutional Court, the state honors aren’t the only thing that has raised eyebrows this year. In August, the parliament speedily approved an amendment to the act that created the court in 2003. It raised the maximum term-length for a judge to 15 years, from five, and increased the retirement age from 60 to 70.
Of the nine judges, three are appointed by the Supreme Court, three by parliament, and three by the president.
If the six judges who were accorded state honors were retired, the medals wouldn’t pose any problems, but as they are still serving, and are likely to rule on questions central to Jokowi’s governing agenda, the president “shouldn’t have conferred the awards,” said Bivitri Susanti, a lecturer at Jentera Law School in Jakarta. She added that “common sense” would dictate that such honors only be awarded to judges who have completed their duties in government.
Jokowi’s chief of staff, Moeldoko, defended his boss’s decision, claiming that the medals had been given completely in line with the law. He asserted that conferring them did not hinder the court’s independence, since the president awarded them in his capacity as head of state. According to Jakarta media, another member of Jokowi’s staff said the medals were given “purely [as] an appreciation” of what the judges had done for the nation, and the spokesman of the Constitutional Court said the justices did their work “in the most straightforward way” and maintained their independence.
Jokowi was first elected president in 2014, helped by his reputation for being completely clean – which he has maintained in office – and by the fact that he was linked neither to Jakarta’s elite nor to the military.
Corruption remains a serious problem. In late November, officials from Indonesia’s Commission to Eradicate Corruption, known locally as Komisi Pemberantasan Korupsi (KPK), arrested Fisheries Minister Edhy Prabowo, his wife, and others on charges of bribery related to the export of baby lobsters. The minister, shown on television talking with reporters, apologized and said he took responsibility for his actions. The following day, he resigned from his post.
This weekend saw the detention of another minister, Juliari Batubara, on suspicion of taking kickbacks related to COVID-19 aid packages. In total, four active ministers have been named suspects or convicted of corruption since Jokowi took office. Jokowi, in a statement following Edhy Prabowo’s arrest, stated that the KPK works transparently and professionally, and that his government “consistently supports the efforts to prevent and eradicate corruption.”
Yet in 2019, the government made a series of revisions to the laws governing the workings of the KPK. Civil society groups contended that the changes severely weakened the powers of the anti-corruption body, which was established following the fall of Suharto. According to Transparency International’s Corruptions Perceptions Index, Indonesia rated 85th out of 198 countries in 2019, up from 122nd place in 2003, the year the KPK was established.
It could be quite some time before the Constitutional Court rules on petitions against the Indonesian government’s Omnibus Law, which upon its passage prompted nationwide protests against its major changes to labor laws and environmental regulations. The court still hasn’t ruled on petitions seeking to have declared unconstitutional the amendments made to the law governing the KPK.
Recent controversies and arrests demonstrate that corruption did not end with the departure of Suharto; indeed, many think it has worsened, because the decentralization of political power away from Jakarta has greatly increased the number of district and regional officials who have an incentive – and the opportunity – to seek bribes.
At the 2007 Jakarta conference on conflicts of interest, which was hosted by the KPK, then-President Susilo Bambang Yudhoyono talked about the Suharto period without mentioning the late strongman’s name.
“It is no secret that Indonesia’s history includes a long period where conflicts of interest were neglected, and public duties, authorities, and assets were systematically used for private gain,” he said. “These practices, applied during more than 30 years, have left a strong legacy, which we now must rectify.”
In a speech at the same meeting, the then-chairman of the People’s Consultative Assembly, Hidayat Nur Wahid, admitted “we have decades of bad habits to overcome.” Indonesia needed a comprehensive system to deal with conflict-of-interest situations, he acknowledged, and when that is in place, “it will change the whole system of government procurement and contracts. It will also challenge the political structure and dynamics.”
The whole system hasn’t been changed, and the country faces a long battle for clean and accountable government.
Noke Kiroyan of the International Chamber of Commerce said that many people just pay lip service to rules on disclosing conflicts of interest, “and then do things the old way… with no heeding at all.”
On the prospects that more people will disclose conflicts of interest and conduct their affairs ethically, Kiroyan said, “it’s not impossible, but it will take decades… It’s a new concept, and people have not internalized the value that goes with it.”
Richard Borsuk was the Wall Street Journal’s Indonesia correspondent from 1987 to 1998, and is the co-author of “Liem Sioe Liong’s Salim Group: The Business Pillar of Suharto’s Indonesia.”