—Stefanus Hendrianto, Santa Clara University School of Law
It is still fresh in our memory that the election of President Joko Widodo in 2014 was hailed internationally. Here was a down to earth politician who seemed to do a credible job in his short term as governor of Jakarta. After nine months in office, Jokowi, as he commonly known, surprisingly seems conservative and out of depth, and has had to weather some major political crises he has largely created himself. One of the major issues of Jokowi’s Presidency is that he has shown a penchant for paying too little attention to the constitutional context of his political decisions.
The Anti-Corruption Battle
Nine months into his presidency, Jokowi is learning a hard lesson that combating corruption is a more difficult task than promising to eradicate it. The trouble began when Jokowi nominated Budi Gunawan as National Police Chief in January 2015. Gunawan, a onetime bodyguard to Megawati Sukarnoputri, former President and chairwoman of Jokowi’s party, had been investigated for months by the KPK. It was also confirmed that the President had been informed earlier by the KPK of their suspicions concerning Gunawan dating back to 2010. Soon after the nomination, the KPK declared Gunawan as a suspect in a bribery case. The Police immediately retaliated by naming the Head of the KPK, Abraham Samad, and his Deputy, Bambang Widjojanto, as suspects in criminal cases.
Jokowi’s initial reaction to the conflict was to call both KPK and National Police leaders to the palace at the same time and to tell them to work together. Jokowi’s cautious approach, however, did not solve the problem. It did not stop the Police from outmaneuvering the KPK by laying charges against 21 KPK investigators because as former policemen, they had not surrendered their weapons when they left the police force. Furthermore, President Jokowi replaced the two KPK Commissioners, because the law required them to be inactive while under investigation. Jokowi’s decision has been criticized as overly deferential to the Police, therefore leaving the KPK crippled for the past several months.
Jokowi might have handled the conflict better if he had referred to a Constitutional Court decision in a similar case. Six years ago, the Police moved to incriminate the-then two KPK Commissioners, Chandra Hamzah and Bibit Riyanto, after they managed to wiretap a high-ranking police official on the suspicion that the official was taking bribes. At that time, Hamzah and Riyanto went to the Constitutional Court and challenged the law that could cause their removal from the KPK. The Constitutional Court issued an injunctive order requiring the President to refrain from suspending Hamzah and Riyanto until a final verdict.[1] The Court held that the KPK commissioners could only be removed based upon a final and binding decision of the court of law.[2] Unfortunately, Jokowi did not bother to refer to the Constitutional Court decisions in the Hamzah and Riyanto cases in handling the recent conflict between the KPK and Police. In many respects, Jokowi’s cautious approach has paved the way for the Police to transform itself into a “lawless” institution; in recent months the Police has often shown a lack of restraint in incriminating those who were not in their political favor.[3]
Conflicts with Congress
Shortly after Jokowi nominated Budi Gunawan as candidate for National Police Chief, the House of Representative extended unanimous endorsement to Gunawan’s nomination. The unanimous endorsement was a strong warning that the KPK may suffer escalating attacks from the House. Indeed, the campaigns to weaken the KPK reached their climax when the House proposed a plan to revise the KPK Law, which aimed at limiting the KPK’s power to investigate and prosecute graft cases. In the existing law, the KPK has investigative and indictment powers with no obligation to involve the Attorney General’s Office (AGO) in graft trials. Under the House’s proposal, the KPK would be prohibited from conducting any wiretapping activities during the investigation would be forced to hand over its investigative dossiers to the AGO before any indictment could be brought.
President Jokowi rejected the House’s plan to amend the 2002 Anti-Corruption Commission Law, saying that the government has no intention of undermining the work of the KPK.[4] Through his spokesperson, Jokowi stated that the bill must be removed from the 2015 National Legislation Program – a list of legislative priorities set by the legislative and the executive. In spite of Jokowi’s rejection, the House Deputy Speaker, Fadli Zon, hinted that the House would press ahead with its plan to amend the existing law on the KPK. Jokowi’s rejection of the bill was complicated further when his own Minister of Law and Human Rights, Yasonna H. Laoly, insisted that the revision of the KPK Law should be included on the legislative priority list because of the urgent need for revision of Indonesia’s anticorruption efforts.[5] Vice President Jusuf Kalla also supported the revision plan by stating that “revision to the Law was needed to improve a statute that had been left unchanged for a long time (13 years), allowing it to adapt to new conditions.”[6] At this stage, Jokowi has limited options to stop the bill and he must play the game carefully as the Constitution does not equip the President with veto power to stop legislation from becoming law.[7]
Still, President Jokowi may have some options if he studies the constitutional context carefully. President Jokowi was depicted as vacillating and weak in handling the conflict between the Police and KPK, but could regain some reputation for toughness by refusing to discuss the legislation curbing the KPK. The Constitution provides that every bill shall be discussed by the House and the President to reach joint approval and if a bill fails to reach joint approval, that bill shall not be reintroduced within the same House session.[8] Although President Jokowi has no power to veto a bill that has been approved by the legislature, he may have the option to prevent joint approval by refusing to discuss the bill. Without the involvement and consent of the Executive, the bill will not reach joint approval and must be dropped from the House agenda.
Social Welfare Policy
Apart from the conflict between the Police and the KPK, Jokowi has also faced public opposition towards his social welfare policy. Let us review the background of the social welfare battle. In 2004, the legislature passed the law concerning the National Social Security System (Sistem Jaminan Sosial Nasional or SJSN).[9] The Law provides social security benefits, which include health insurance, occupational accident benefits, old-age risk benefits, pension benefits, and death benefits.[10] The SJSN Law was drafted by the administration of Megawati Soekarnoputri. Not long after the enactment of the Law, Megawati lost in the presidential election and was replaced by Susilo Bambang Yudhoyono. The Yudhoyono administration, however, did little to implement the benchmark legislation of his predecessor, partly because the SJSN had large fiscal consequences that had not been anticipated by the previous administration. In 2011, however, the Yudhoyono administration passed a law providing that those four social security programs would be administered by the Workers’ Social Security Administrative Body at the latest on July 1, 2015.[11]
On July 1, 2015, President Jokowi was scheduled to launch those four social security programs and he was also expected to announce the premiums for the pension scheme. Nonetheless, the launching of these social security programs has generated another wave of anti-Jokowi criticism from the politicians in the House of Representatives and labor unions. The centerpiece of the dispute is the issuance of Government Regulation No. 46/2015, which stipulates that workers can withdraw their pension funds only after 10 years of enrollment in the program. The legislature and union leaders demanded that the minimum enrollment requirement of 10 years be scrapped from the new regulation and that workers should thus be able to withdraw their benefits without any delay. These demands were unfounded because the requirement closely tracks a similar provision in the SJSN Law itself.[12]
As the opposition to the new regulation grew stronger, President Jokowi relented and agreed to revise the new pension fund regulation. But the president may not realize that he has subverted the Constitution by conceding to the demand of the legislative and union leaders. The President has no authority to scrap the statutory regulation that requires a minimum enrollment requirement of 10 years via a government regulation, since that regulation should be subordinate to the law. If legislators are not in favor of the minimum 10-year enrollment requirement, they should change the Law instead of pushing President Jokowi to scrap the rule via governmental regulation.
President Jokowi has also failed to refer to the Constitutional Court’s decisions in dealing with the opposition to his social-welfare regulation. In the last ten years, the Constitutional Court has reviewed many cases that involved the Social Security Law.[13] But none of those challenges involved the constitutionality of the 10-year minimum enrollment requirement. If the Labor Unions want to challenge the requirement, they should ask the Court to review the constitutionality of the requirement instead of demanding that Jokowi alter that provision. Moreover, the Constitutional Court has affirmed that the central government has authority to administer the Social Security System.[14] The ruling from the Constitutional Court should give Jokowi additional confidence that he has a constitutional mandate to launch the social-security programs instead of bowing down to the pressure of his political opponents.
In sum, Jokowi’s political practice and rhetoric in the last nine months is a combination of social populism and pragmatically driven conservative statism. Moreover, Jokowi has also slowly developed a habit of ignoring both the “big C” constitution, i.e. the written constitution and the “small c” constitution, i.e. Constitutional Court decisions. One question for the future will be whether this kind of approach will prove even more problematic as Jokowi’s term moves forward?
Suggested citation: Stefanus Hendrianto, The Jokowi Presidency so Far: Increasing Disregard of Indonesian Constitutionalism?, Int’l J. Const. L. Blog, July 24, 2015, at: http://www.iconnectblog.com/2015/07/the-jokowi-presidency-so-far-increasing-disregard-of-indonesian-constitutionalism/
[1] Constitutional Court Decision No.133/PUU-VII/2009 (Injunctive decision), at 32.
[2] Constitutional Court Decision No.133/PUU-VII/2009, reviewing tLaw No. 30 of 2002 on the Anti-Corruption Commission Law (hereinafter Hamzah & Riyanto case), at 76.
[3] The Police have moved to incriminate former Deputy Minister of Justice Denny Indrayana in a graft case involving the Ministry’s online passport payment system. Indrayana was in the forefront of the campaign to support the KPK Commissioners and was apparently incriminated due to his support for the KPK. Moreover, the Police have also named two commissioners of the Judicial Commission as suspects in a defamation case. The case involves comments the Commissioners made in relation to the performance of a judge who ruled in favor of Budi Gunawan in a pretrial hearing, under which the district court ruled that the KPK’s decision to name Gunawan as a suspect was illegal.
[4] See “Jokowi Rejects House plan for KPK Law,” The Jakarta Post, June 20, 2015, http://www.thejakartapost.com/news/2015/06/20/jokowi-rejects-house-plan-kpk-law.html#sthash.MiAC2GnH.dpuf.
[5] See “Revision of KPK law not a ploy to weaken KPK: Deputy House speaker,” The Jakarta Post, June 17, 2015, http://www.thejakartapost.com/news/2015/06/17/revision-kpk-law-not-a-ploy-weaken-kpk-deputy-house-speaker.html#sthash.qnG4zNVi.dpuf.
[6] See “KPK Law should be revised if needed: Kalla,” The Jakarta Post, June 22, 2015, http://www.thejakartapost.com/news/2015/06/22/kpk-law-should-be-revised-if-needed-kalla.html#sthash.4rPnmTx9.dpuf.
[7] Barry Grossman has expressed some opinions about some of my own views previously published in this blog. Grossman suggests that article 20 (5) of the Indonesian Constitution is not significant because it makes no reference to the consequences which shall follow if the President fails to assent or sign a bill. The remark fails to acknowledge the Indonesian constitutional history that prompted the adoption of article 20 (5): the provision was specifically aimed at eliminating any possible veto power. The adoption of article 20 (5) was a reaction to a political crisis that took place in 1999 under the Habibie administration. In September 1999, the House of Representatives approved the bill on the Control of Emergency Situations (Undang – Undang Penanggulan Keadaan Bahaya). As public pressure mounted on President Habibie to drop his support for the bill, he refused to sign the bill, and, consequently, it did not become a law. Thus, although the original text of the Indonesian Constitution did not explicitly equips the President with veto power, the President effectively “vetoed” this legislation by not signing the law. When the Constitutional Amendment took place in 2000, politicians adopted article 20 (5) precisely as a political maneuver to curtail this presidential “veto” power.
[8] Article 20 (2 & 3) of the 1945 Constitution.
[9] Law No. 40 of 2004 on the National Social Security System (hereinafter the SJSN Law).
[10] Article 18 of Law No. 40 of 2004.
[11] Law No. 24 of 2011 on the Social Security Administrative Body (Badan Penyelenggaran Jaminan Sosial – BPJS)
[12] Article 37 of Law No. 40 of 2004
[13] The Constitutional Court Decision No 007/PUU-III/2005 (hereinafter the SJSN I case), the Constitutional Court Decision No. 50/PUU-VIII/2010 (the SJSN II case), The Constitutional Court Decision No. 51/PUU-IX/2011 (the SJSN III case), The Constitutional Court Decision No. 70/PUU-IX/2011 (the SJSN IV case) and The Constitutional Court Decision No 82/PUU-X/2012 (the SJSN V case).
[14] See the SJSN I case
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