Independent anticorruption agencies (ACAs) have become a vital component for many countries in combating corruption. Generally, these ACAs function like independent police or prosecutors, taking on one or both of those roles in settings where the ordinary law enforcement apparatus cannot be relied on to investigate, arrest, and prosecute corrupt officials. In addition to these prosecutorial responsibilities, ACAs sometimes oversee asset disclosures, and may also perform a public education function. But for the most part, ACAs do not play a direct role in selecting or vetting senior political officials. Should they?
This question is not merely hypothetical: Indonesia recently elected as its new president Joko Widodo, a reform-minded candidate who promised “zero-tolerance towards corruption” during his campaign (see a previous post discussing his election here). Last month, President-Elect Widodo took the unprecedented step of submitting his list of proposed nominees for cabinet positions to Indonesia’s powerful Corruption Eradication Commission (Komisi Pemberantasan Korupsi or “KPK”) for evaluation–and approval–before the list of nominees was finally made public. The KPK rejected eight of his submissions, with the result that President Widodo delayed the announcement of his cabinet compositions until he replaced these eight candidates with other nominees approved by KPK. Four days later, Widodo announced his cabinet composition, which presumably did not include the eight individuals to whom the KPK objected.
While the decision to give the KPK a de facto veto over cabinet appointments is in some ways an encouraging development–one that many Indonesians might appreciate as brave, progressive move, which enlarges the power of the popular KPK–it is troubling in certain respects, and should prompt more careful scrutiny and regulation.
To be clear, nothing in Indonesian law gives the KPK–primarily an investigative and prosecutorial body–the authority to conduct evaluations of prospective ministers, much less veto them. At the same time, however, there is also no law that prohibits the KPK from conducting such evaluations (at the president’s request), and nothing that would prohibit the president from taking those evaluations into account when making final decisions on nominees. In the absent of any legal authority directly on point, it seems that President Widodo used his presidential discretion to request KPK’s opinion on his selections for the new cabinet, much as the US President and Department of Justice have established the practice of consulting with the American Bar Association’s Standing Committee on the Federal Judiciary about prospective judicial nominees.
Nonetheless, while President Widodo’s decision may be “informal” and consultative, it has been presented and portrayed as a de facto KPK veto over nominees. President Widodo’s decision indeed may lead to the emergence of an informal norm in Indonesia, with every future president or president-elect likewise expected to submit cabinet nominations to the KPK for advance approval. If this norm persists, then the KPK will have considerable authority in shaping Indonesian politics at the highest levels.
Despite the KPK’s good reputation for integrity and impartiality, giving it such a central role in selecting the country’s leaders is troublesome for two related reasons:
- First, are the KPK’s decisions fair? Consider the current case. The KPK has never prosecuted any of the eight rejected ministerial candidates; none of them (so far as anyone knows) have ever been convicted in court of any corruption-related offense. Although nobody has a right to a cabinet position–and the President would be within his rights to decide not to nominate a candidate for any reason, including even the hint of corruption–the KPK’s informal veto power bears a troublesome resemblance to a kind of extra-judicial punishment (depriving individuals of their right to serve in certain public offices) without the usual safeguards. There is, after all, no legal mechanism to challenge the KPK’s decision, nor indeed is the KPK required to give a public justification for its decision. It is therefore reasonable to ask why the KPK–an investigative and prosecutorial body–is entitled to conduct an evaluation of the fitness of a cabinet nominee.
- Second, one might reasonably worry about political bias. Even though the KPK currently has an excellent reputation for impartiality, that could change. Moreover, the very fact that the KPK becomes involved in screening cabinet nominees might increase the politicization of the agency, or at least the perception that it is politicized. This is especially so given the above point that the KPK might be rejecting nominees who have not actually been convicted of any corruption offense. It may not even be possible for the KPK to ensure that its evaluations are free from political bias. (Here it might be worth noting that in the US, the ABA Standing Committee is regularly accused of political bias in its assessment of judicial nominees–see here, here and here.)
These concerns are serious enough that the Indonesian people should not ignore them, notwithstanding the popularity of President Widodo’s decision in the current environment. And indeed, despite the overall popularity of President Widodo and the KPK, many Indonesians are not entirely comfortable with the final list of candidates approved by KPK, and wonder about the nature of the “free from corruption” standard that KPK used to evaluate these selected ministers. (Articles that echo this current debate in Indonesia can be found in here and here.)
There are, however, ways to ensure that the KPK performs a productive role in the cabinet selection process–keeping the best aspects of President Widodo’s decision, while mitigating concerns about unfairness or political bias. In particular, Indonesia should consider turning this informal norm into a formal one, by amending Indonesian Law No. 30 of 2002 on the Corruption Eradication Commission to form a legal basis for KPK to evaluate public official candidates prior to appointment by the government. The amended law should also ensure that the KPK would be responsible to conduct the evaluation transparently, by disclosing the elements of evaluation and factors that would make one ineligible to sit as a public official.
Without such clarity, the KPK’s accountability and the basis of its assessments would remain questionable–notwithstanding the KPK’s popular support and credibility. If this informal norm can become a formal one, and the law can ensure the transparency and accountability of KPK in its assessment, this practice of giving the KPK a role in screening cabinet officials can develop into an effective check-and-balance mechanism, one that other countries might seek to emulate.