The Constitutional Court rejects a judicial review on the positions of deputy ministers. President Yudhoyono issues a new decree outlining related rules and procedures.
Deputy Minister for Justice Denny Indrayana had cleared his work schedule for the day on Tuesday last week. Instead, he sat around in his office, waiting for news from the Constitutional Court, which was expected to rule on the constitutionality of the deputy ministers' position. "I was prepared to pack up and leave," Denny told Tempo last Tuesday.
Minutes after the Constitutional Court announced its ruling, Denny's mobile phone rang incessantly. He found himself busy answering phone calls and text messages. Journalists asked for time to interview him. Anti-corruption activists offered their congratulations. There were also ministers and deputy ministers who asked for his legal opinion. Among those who called was top security minister Djoko Suyanto, who rang from Moscow. He was curious about the consequences of the court ruling.
Denny explained that the Constitutional Court stressed that the appointment of deputy ministers was solely the prerogative of the Indonesian President, and was not tied to the civil service post or career bureaucrats. "The court's ruling strengthens the government's stance," said Denny.
Denny then invited a horde of journalists who had been waiting outside his office. "So, what will you do if you are no longer a deputy minister?" asked a journalist. Denny was silent for a while, then answered: "Not a single sentence in that court ruling states that the deputy minister's position is to be vacated." The journalist however insisted, quoting former justice minister Yusril Ihza Mahendra, who said the position of the deputy ministers could no longer be based on an Article of the State Ministry Law. The reporter also quoted the Constitutional Court's own spokesman, Akil Mochtar, who said that the deputy ministers positions should be temporarily vacated.
Denny was certain that the court had sided with the government. But after scanning through a number of online media websites, he got a little worried. "Tomorrow all the media could be publishing the same report," Denny said.
Akil Mochtar did say that the deputy minister positions should be temporarily vacated. However, the court that day had ruled that according the Constitution, the president had every right to appoint a deputy minister. However, if President Yudhoyono wanted to reappoint the current deputy ministers, he would have to issue a presidential decree to that effect.
A week after President Susilo Bambang Yudhoyono appointed 17 deputy ministers to his cabinet on October 18 last year, a request for a judicial review was submited to the Constitutional Court, asserting the president's move to be unconstitutional. By that time, 20 deputy ministers had been appointed. The judicial review was submitted by Adi Warman, who heads the National Movement to Eradicate Corruption, or GNPK.
From his office on the second floor of the Istana Pasar Baru building, Central Jakarta, Adi set off to work. The documents to file the legal motion were signed by him on October 25, 2011.
Adi's target was Article 10 of Law 39/2008 on ministries. He said that the Article went against the spirit of Article 17 and Paragraph 3 of Article 28d in the Constitution. Adi said that the deputy minister positions were unconstitutional since they were not stated in any way in Article 17 of the Constitution. He also pointed out that the prerequisite stated in Article 10 of the 2008 Law that this position can only be filled by a career bureaucrat, had prevented someone like him a member of the GNPK from vying for that position. He argued that going by Paragraph 3 of Article 28d in the Constitution, any Indonesian has the equal opportunity to seek a position within the government.
As a tax-payer, according to Adi, he and members of GNPK had been denied that right. Also, by installing deputy ministers, the government had to prepare for a new budget. "That is a waste," said Adi.
His aim was clear. All deputy minister positions must become obsolete, said the man who works as a lawyer but admitted to being a reporter as well. The Constitutional Court has now heard the case. As of March, the plaintiff and the government brought in a number of witnesses to corroborate their arguments.
A witness for the GNPK was Yusril Ihza Mahendra. According to Yusril, the Constitution does not recognize the position of a deputy minister. Yusril acknowledged that the post of deputy ministers had existedduring Sukarno's presidency, but that the posts were officially called junior ministers. The work of deputy ministers were unclear, redundant and wasteful, Yusril said in court last January 19.
The New Order regime recognized the post of junior minister. Through expert witnesses and a conclusion signed by three ministers, Amir Syamsudin, Azwar Abubakar and Sudi Silalahi, the government tried to counter all the plaintiff's arguments concerning the demand for a judicial review.
The governmenta also pointed at the inconsistency of Adi Warman's appeal. On the one hand, he insisted on the abolishment of the deputy ministerial positions, but on the other hand he stated that the prerequisites of the law had limited his chances of vying for that position. "Does the plaintiff want the position abolished, or does he want to hold the post?" asked the ministers representing the government.
On the fact that the position of vice minister is not mentioned the Constitution, the government argued that it did not necessarily mean that the post was disallowed. The government also referred to the posts of vice governor and vice regent which are not mentioned in the Constitution but regulated in the Law of Regional Government. As the power holder of the government, the President has rights to form a new structure and appoint officers within the executive circles. "As long as it is not prohibited," said the government's expert witness, Arif Hidayat. Senior lawyer Adnan Buyung Nasution, who also appeared as the government's expert witness, emphasized that so far only a small portion of job positions were regulated by the Constitution.
According to the government, the bottom line lies with the explanation of Article 10 on the State Ministry Law. The criteria that only career bureaucrats or civil servants could fill that position, disproved President Yudhoyono's appointments. Two professors of public administration, Sofian Effendi and Miftah Thoha, supported this argument. In their view, the position of deputy minister should be a political post. In developed countries, appointing people to the posts of deputy ministers is the prerogative of the President.
As a result, the government felt that the explanation of Article 10 of the Law of State Ministry had indeed, limited the rights of the President. Referring to Law No. 12/2011 on Drafting of Laws, the government argued, the explanation of a law should not contain norms or new regulations within it.
When the trial came to a conclusion, there was news that the Constitutional Court judges were divided into two camps. Four judges reportedly agreed that the position of deputy ministers was against the Constitution while the other four thought otherwise. There was still one judge who stood on the fence. Another rumor was that the majority of the judges were rejecting the review and instead create stricter conditions for career bureaucrats or civil servants. If this had been the outcome, all deputy ministers who were academicians would have lost their positions.
To Tempo, Constitution Court chief justice Mahfud M.D. denied the rumors. "They are not true," said Mahfud. Constitutional Court judges were unanimous from the beginning to the end, he said. By the end of last April, Mahmud recounted, nine Constitutional Court judges were present in the deliberation to make a decision. The session lasted just half an hour. None of them gave a dissenting opinion. "There was no debate. You can check out the minutes of the meeting," said Mahfud.
Indeed, there was a fairly long break between the deliberation and when the ruling was read out. But according to Mahfud, that did not result from the differing opinions. The Court postponed the session because the Constitutional Court judges were never present together. For example, early last May, Mahfud paid a visit to Germany for a week. When he returned, a judge had flown off to Turkey.
On Tuesday last week, the Constitutional Court finally held a panel session. Nine judges unanimously fulfilled part of the request made by Adi Marwan.
The judges had ruled that the explanation of Article 10 of the law had indeed contradicted the constitution. The explanation that states that deputy minister positions are career bureaucrats and not members of the cabinet was declared as having no binding legal basis. The judges however ruled that Article 10, which became the basis of appointing the deputy ministers, remained constitutional. It is the President, the court ruled, which had the sole prerogative of appointing deputy ministers. The hot talking point of this ruling, however, was the fact that the court had ruled the following: the president needs to reappoint the deputy ministers through a presidential decree. This caused much confusion for many parties, including Adi Warman. He believed that following the court ruling, the deputy ministers must immediately resign. "Starting from today, Indonesia does not have vice ministers," said Adi after the reading of the verdict.
Constitution Court spokesman, Akil Mochtar, gave the impression of agreeing with Adi. According to him, the post of deputy ministers should remain because it is constitutional. But, as long as the presidential decree concerning the deputy minister has not been renewed, then the "posts of vice ministers must be temporarily vacated."
Yusril himself held a press conference to specifically respond to the verdict of the Constitution Court. Yusril said, the post of deputy ministers no longer has legal ground. "They should not take any actions at all in their positions", said he.
But Mahfud disagreed with Yusril. He said that as long as the presidential decree on their appointments has not been revoked, the ministers can continue working according to their job description. But if the execution of the authority causes disadvantage to others, they can bring the case to court. The legal motion would then be brought against the President. According to Mahfud, in order to avoid further controversy, it is better for the President to issue a new president regulation.
President Yudhoyono himself lost no time after the Court ruling. Three days later, a new presidential regulation replaces three previous presidential regulations on the appointment of deputy ministers, issued from 2009 to 2011. The new rule states that deputy ministers may be career civil servants or appointed from outside the bureaucracy. Political appointees will be temporarily discharged from their positions as deputy ministers, and may take back their old jobs when they are no longer deputy ministers. Furthermore, on the same day, Yudhoyono signed another Presidential Decree on the installment of deputy ministers. "The content of the decree will be announced at the right time", said the President's spokesperson, Julian Aldrin Pasha, last week.
By Jajang Jamaludin, Setri Yasra, Itsman M.P.
No. 42/12, June 13, 2012