Home Affairs Minister Tjahjo Kumolo, left, has apologized to President Joko Widodo for a brazen attempt to curtail press freedoms. (Antara Photo/Andika Wahyu)

Commentary: Jokowi’s Refusal to Talk Is a Legal Problem

FEBRUARY 23, 2015

President Joko Widodo has run himself into a legal dilemma with the House of Representatives over the appointment of Indonesia’s police chief.

Let’s look at what the law says, and the trouble it spells for him. The relevant statute is the 2002 Indonesian Police Force Act. It states very clearly in Chapter 11 that appointment and dismissal of the national police chief shall be conducted by the president after it is approved by the House.

It also says that in appointing or dismissing a police chief, the president must explain to the House his or her reasons.

Those stipulations suggest that the president does not have the prerogative to install the police chief at his own will; his prerogative only goes as far as nominating a candidate to be approved by the House.

Under this interpretation of the law, the police force is not what Indonesians call a “government” organ (meaning an organ of the “administration in power,” as an native English speaker would say, or more specifically, an “executive branch” agency); rather the National Police, by this interpretation, is a “state” organ.

The law also says the House should accept or reject the president’s nominee in no later than 20 days of his nomination; if no response is given, approval is presumed — like a converse, perverted pocket veto.

By the same token, the president, as the head of government, does not have the prerogative to dismiss a serving police chief without the approval of the House.

However: “In an emergency situation, the president can temporarily dismiss the police chief, appoint an acting chief and later seek approval from the House.”

So that’s how the law — signed in January 2002 by then-President Megawati Soekarnoputri — is supposed to work.

Now let’s look at what Joko Widodo has done, and the corner he’s put himself in.

First, the law would seem to demand in  no uncertain terms that Joko explain to the House why he dismissed Gen. Sutarman, who was slated to retire this October.

Lawmakers could rightfully interpret his failure to explain himself, in absence of extraordinary circumstances, as clear breach of the law.

The president’s most recent letter to the House nominating Cmr. Gen. Badrodin Haiti as a new police chief only mentioned that Gen. Sutarman had been dismissed based on a Jan. 16, 2015 presidential decree;  it did not explain why.

This lack of explanation isn’t just a problem of optics or political communication: It’s a serious legal problem.

The president’s letter also says he had not canceled, but rather only “postponed the appointment” of Budi Gunawan, because the general had been named a suspect by the Corruption Eradication Commission (KPK). Yet, in the same breath, Joko put an end to Budi’s appointment and submitted a new name in its place.

Postponement and cancelation are two different words that need no explanation — whether said in Indonesian or English. A leader must be clear in his choice of words.

The president’s closes his letter to the House with an even more curious choice of words: “Considering that the nomination of Commissioner General Budi Gunawan for the position of National Police chief has aroused debate in society, and in order to create quietness in society, as well as the need for National Police to swiftly be led by a definitive chief, we propose a new candidate, Commissioner General Badrodin Haiti, to be approved by the House as the police chief.”

The use of the words “we propose” suggests Vice President Jusuf Kalla is aware and involved. Strangely, Kalla was quoted by the local media as saying that if it were up to him, he’d have installed Gudi Gunawan right after the three-star graft and money laundering suspect’s indictment was rejected on technical grounds at a pretrial hearing.

Nowhere do we find a reason, legal or otherwise that the House or the public can readily accept. It looks more like a dubious security consideration. How can the leader of the world’s third-largest democracy suddenly characterize “debate in society” as an emergency justification for “quietness” through extraordinary legal measures?

Has he forgotten millions of voters actually didn’t vote for him but nonetheless acceded to democracy’s rule of acknowledging him as the election’s winner?

What’s wrong with dissenting opinion? What’s wrong with debate? Isn’t Indonesia a country and nation of great diversity? (What even is wrong with antagonism between KPK and the cops, so long as it stays within legal bounds?) And where in the world is there a democracy where everybody agrees with everybody else on everything and lives as a totally quiet society?

There is no democracy without debate and divergence of views. Only a country led by dictators is free from public debates, because everybody crosses their t’s and dots their i’s in order not to be eliminated.

The 20-day deadline will expire before the House, now in recess, convenes again on March 23. So, if legislators don’t swiftly return the president’s letter, they concede the president’s choice of Badrudin, whether or not they would approve him.

Far above this noisy public debate is the need to put the right state administration principles in place: The president needs to demonstrate that he’s in charge of state leadership. He needs to be a strong leader.

Being a strong national leader is not reflected in uncompromisingly turning down incessant clemency appeals from family members of foreign drug convicts waiting to be gunned down soon; instead it is reflected in his mastery of state administrative law so that his leadership can inspire other state institutions.

The first thing he must do is to restore discipline in his cabinet. Puan Maharani called the president “an assigned executive” of her party; while Justice and Human Rights Minister Yasonna Laoly said the president should have respected the party’s stance by installing Budi Gunawan.

The president also needs to have a proper public relations institution so that there will no longer be conflicting statements coming out of the cabinet.

The president and vice president must speak the same policy language and ministers must echo the two leaders’ unified policy stance on all strategic issues. That’s not happening today; the president must take the lead to make it happen.

Joko needs to properly formulate his reasons to the House for (1) explaining what emergency situation compelled him to prematurely terminate Sutarman’s term; (2) canceling — not postponing — Budi Gunawan’s appointment, which had been approved by the House; and (3) picking Badrodin Haiti as his sole candidate to be approved by the House.

The president must do all this not for political reasons, but because it’s the law.

If our head of state sends the signal that laws are made to be outsmarted and disrespected, that really could destabilize us.

Pitan Daslani is chief editor of Indonesian Leaders magazine. He can be reached at pitandaslani@gmail.com