Indonesia – To Decree or Not to Decree?

President Susilo Bambang Yudhoyono’s Perppu (presidential decree, or regulation in lieu of law in Indonesia) to address the issue of one of Indonesia’s highest institutions – the Constitutional Court – being hit by the nation’s most-entrenched problem – corruption – may alleviate the poignancy of the latest corruption scandal. The anticorruption watchdog, Komisi Peberantasan Korupsi (KPK), is formally investigating Akil Mochtar, now-suspended chief justice of the constitutional court, for accepting bribes to rule in favour of a losing candidate in the district chief elections in Lebak, Banten. In Indonesia, a Perppu is a government regulation issued under an emergency that carries the weight of the law until the House of Representatives rejects it or votes to support it.

The Perppu may restore the Constitutional Court or, at the least, ensure that a phoenix rises out of its ashes. It also raises the question (over which there is already some debate): is it necessary to light the fire in the first place? That is, does the corruption scandal in the Constitutional Court warrant the Perppu? More generally, under what conditions are presidential decrees useful?

For Indonesia, the answer depends on two considerations: first, the role of the Constitutional Court; second, the effect of the Perppu on accountability.

The Indonesian Constitution places characteristic checks and balances between the executive and bicameral legislature. In addition, the Constitution specifies roles for the Supreme Audit Board (Badan Permeriksa Keuangan) to ensure accountability of state finances, the Supreme Court as the highest court of the nation, and the Constitutional Court to review constitutionality of legislation and disputes over general election results.

This capacity of the Constitutional Court – to review and rule on general election disputes – frames the corruption charges against Akil. Local elections are highly contested as a result of significant expenditure powers following devolution in 2001, and the Constitutional Court has been, hitherto, the venue for authoritative ruling – they are final and binding – in election disputes. Clearly, this scandal strikes at the heart of political trust and democratic development in the country.

The urgency regarding the Constitutional Court lies in that it continues to adjudicate in election disputes, albeit with a significant loss in credibility. President Yudhoyono’s Perppu targets three areas for action: (a) criteria, (b) selection, and (c) oversight of the justices. Fundamentally, then, the Perppu represents a clear, unfailing commitment to political integrity at the highest levels of politics. It is an important signal.

Given the significance, it is critical to consider the Perppu in the broader context of government accountability, specifically, horizontal accountability between government institutions to check and restrain abuses of power by branches of government or public agencies.[i] It is instructive to note that when O’Donnell (1998) first raised the concept of horizontal accountability, he held “judicial autonomy” as “tricky” because the lack of oversight to enhance its autonomy may lead directly to a lack of accountability (123).[ii]

In this broader context, President Yudhoyono’s effort to enhance accountability is a step in the right direction. it is no wonder: the President consulted extensively with constitutional scholars, lawmakers, and members of the judiciary on this Perppu.

Which likely answers the larger question: when are presidential decrees useful? Clearly, when they address the problem (increase government effectiveness) and improve accountability in the process.


[i] See discussions in O’Donnell (1998), and Yap and Gibb (2013: 160), about horizontal accountability as well as its complement, vertical accountability, where public officials are held accountable through the electoral process, an active civil society, or a free press.

[ii] Studies of accountability generally focus on executive accountability with its potential for abus related to the position of head of government and commander-in-chief.

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