Not Even SBY Is Above the Law
Earlier this month, the Constitutional Court ruled that the appointments of deputy ministers made last year by President Susilo Bambang Yudhoyono were illegal because the law used to justify the appointments was unconstitutional.
A presidential decree has since been issued to reappoint the deputy ministers, but the ruling reflects badly on Yudhoyono’s presidency, as it makes one wonder if this administration is truly competent in legal matters.
The ruling also shows that 14 years after the fall of Suharto, Indonesia still has a long way to go in strengthening both the rule of law and the concept of legitimacy in government.
For many Indonesians, it seems that the question of legality is always an afterthought, and not something to be taken seriously. This is a direct result of Indonesians’ daily struggle with red tape; that in order to interact with the government, they have to deal with bureaucratic procedures that make things more difficult rather than easier.
In order to cut through all of the red tape, people turn to bribing officials.
Paying a bribe is so common that a clean and incorruptible official such as Solo Mayor Joko Widodo, currently a candidate for the governorship of Jakarta, is seen as an anomaly. People are genuinely surprised when civil servants refuse to accept bribes.
With a national consensus both that rules are made to be broken and that the ends justify the means, there is simply no need to pay close attention to the details. The law is seen as an afterthought; it is expected that anything can be conveniently swept under the rug with enough improper payments.
The legal travails of Yudhoyono’s government are the symptoms of this national disease. The government has been outwitted a number of times by noted legal scholar Yusril Ihza Mahendra since the beginning of the president’s second term.
When Attorney General Hendarman Supandji first indicted him, Yusril managed to successfully question Hendarman’s legitimacy in his role. That led to the Constitutional Court declaring Hendarman’s position and his decisions void.
Since then, Yusril has become a bit of a legal pest, succeeding in making life difficult for Yudhoyono’s administration. Many people believe that that is the reason why the government stopped its investigation into Yusril’s alleged corruption during his tenure as the justice and human rights minister. Many think that by halting the investigation, Yusril will get off Yudhoyono’s back.
Yudhoyono would have avoided the entire headache had the government been more diligent in researching the legal justifications for its actions. The administration could have trained or recruited more people with strong legal backgrounds. Perhaps more importantly, the administration should have taken legal matters more seriously by tackling many of the Constitution-breaking regulations, notably the proliferation of religious-based local ordinances.
Yudhoyono could have achieved more had he decided to govern based on the letter of the law and not through political expediencies, as Adnan Buyung Nasution, also a noted legal scholar, notes in his new book, “Advice for SBY.”
While some of Adnan’s pieces of advice aren’t politically convenient, like his push to bring late former President Suharto to trial, the book is revealing in that it shows how many of Yudhoyono’s decisions are made very slowly, with the fear of making new enemies, rather than the desire the follow the letter of the law, his main consideration.
This brings us back to the problem of the legality of the appointment of deputy ministers.
As a face-saving measure, the Constitutional Court suggested that Yodhoyono reappoint the deputy ministers by using the presidential decree — which he did. It probably would have been better for the president to go back to the drawing board and ensure that his decisions are backed by the law. This will save him some grief in the long run.
Yohanes Sulaiman is a lecturer at the Indonesian Defense University.