Should Anticorruption Agencies Be Able to Veto Cabinet Appointments?: The Case of the Indonesian KPK

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.

9 thoughts on “Should Anticorruption Agencies Be Able to Veto Cabinet Appointments?: The Case of the Indonesian KPK

  1. KPK can advice and provide evidence but should not have any veto power over the President’s decisions. KPK can still continue with their investigation and pursue their case as usual in the future, irrespective if the person is a minister or not.

  2. First and for most, there should be a clearer view, that mr widodo’s action was actually an informal gesture to seek for a help from the expert of corruption (which without doubt KPK has more sources on corruption accusation towards the candidates more than mr widodo himself). We can see that the action was taken merely to hinder him from any trouble in the near future, of any corruption related accusation towards his ministers. So, he sort-of wanted a clean slate start to begin his work as the newly appointed president. Therefore, as Mr Widodo didn’t want to open any chances of working with the “wrong” team, he removed some of the candidates (by his own discretion), even if KPK’s suspicion towards such candidates was very small. This is (most probably) why, the submission of the initial proposed names was done as secretive as possible. Which therefore, the reasoning behind the elimination must also be done without public disclosure, for the sake of “saving the face” of the eliminated candidates.

    However, it is indeed true, as the country that uphold a law supremacy, every action conducted by its citizen, including the President, who sits at the highest position of the executive body, must be based on the prevailing laws and regulations. Which in this case, i agree, there must be an amendment to the current regulation, Indonesian Law No. 30 of 2002 on the Corruption Eradication Commission, to clarify KPK’s position on this matter, which will only function for consultancy purposed.

    • I fully agree with you that as a country that upholds law supremacy, Indonesia must ensure that any legal action that would affect a person must be based on the prevailing laws and regulations. Presidential discretionary should not be an exclusion to this premise because Indonesia honors equality before the law.

      What worried me the most is that Widodo’s action to provide the “veto rights” for KPK would later be politicized. Although we can say that KPK is now one of the most credible institutions in Indonesia, if not the most, there is no guarantee that they will stay so in the future. Only if Indonesia has a legal basis to standardize KPK’s evaluations over public official/ministerial candidates that Indonesia could ensure the newfound costume would not be counterproductive later. After all, the country has struggled to establish a transparent government and this evaluation process is sadly nothing but transparent.

  3. First I could not believe myself on the amazing move by the President of Indonesia. If this had been in Nepal, it is next to impossible. The news is interesting for Nepali people, at a time, when there is direct confrontation between its graft agency CIAA and parliamentary oversight committee Finance Committee over the transgression of authority by each of these agencies. Moreover, CIAA has charged the government for opting even operational decisions as cabinet decision to avoid possible pry by CIAA. In Nepal, all policy decisions by the Cabinet cannot be reviewed by CIAA. This is the reason I say the news from Indonesia is unbelievable for Nepali people.

  4. I concur that without sufficient statutory ground, KPK should not prevent anyone to practice its political rights, which includes to be appointed to sit in the Presidential cabinet. Taking into consideration the principle of presumption of innocence, one should be considered innocent until proven guilty. Even though KPK did not disclose the identity of those 8 ministerial candidates they objected, without having a statutory authorities, KPK may be liable for breaching the candidates’ political rights.

  5. This is a really interesting, Shinta! I don’t know much about Indonesian politics, but I actually had a positive reaction to the idea of an informal advisory process in which (as seems to be the case now) the president does retain the ability to disregard KPK recommendations. While I agree with your analysis that the KPK veto crystallizing into a norm is probably not a good thing, I wonder if the best way to ensure it doesn’t is for presidential push-back (by, for example, the presidency not accepting all KPK recommendations next time) as opposed to formalizing the review process? The formal review, given it would bar someone from holding public office due to previous corrupt acts, brought a due process concern to mind: even if everything is done transparently, unless the recommendations that someone be rejected are accompanied by prosecutions, we may be a) unfairly depriving people of their rights (if KPK is allowed to say, ‘we don’t think this person should be appointed for x, y and z reasons,’ but the person isn’t allowed to defend themselves) and b) be opening KPK to an even greater risk of politicization.

    • I agree with a lot of what Melanie said. Someone making a discretionary appointment should be able to look for advisory opinions about prospective nominees from whichever sources they want. I think the comparison Shinta made to ABA recommendations is a good one. A high recommendation from ABA is extremely important — if not necessary — for a judicial nominee and certainly functions as a good housekeeping seal of approval. However, there is nothing to prevent and President who feels very strongly about a particular appointee from moving ahead regardless of what the ABA said.

      One difference between the ABA and the cabinet situation that you are writing about could be important: Presidents might be too scared to nominate a minister who failed KPK review because, if that minister subsequently got caught in a corruption scandal (and, to protect their own reputation, KPK would have motivation to watch that minister super carefully), it would reflect exceptionally poorly on the President. In the US judicial context, there is nothing quite comparable; it is unusual for a judge to get caught in an ‘incompetence scandal’

      You mention a lack of transparency in the recommendations. While I agree that this can be an issue, presumably the KPK does share the reasons for its recommendations with the President (or at least the President could inquire about them for a particular nominee) and the President is the one who has the final discretion over the appointment.

  6. Great post, Shinta. I’m particularly interested in your point about the potential for politicization of the KPK. It seems that you’re suggesting that over time, giving this veto authority to the KPK could transform the organization itself into one that is far less impartial than it is known to be today. This seems very likely in a situation in which you’re handing over such power to an ACA, perhaps creating a perverse incentive for the KPK to put cabinet members in power who can serve its own interests.

    I wonder, then, if your suggestion of formalizing the process would really help to avoid this problem. Even if the decision itself is made more transparent, isn’t it at least plausible that the KPK will find legitimate reasons to veto a candidate who is not politically aligned with the organization? Could something like, say, a weak stance on anti-corruption or unwillingness to promote some agenda of the KPK be used as grounds to reject a candidate?

    Like Melanie, I don’t know much about Indonesian politics, so I may be off-base. But I do wonder if formalizing the process might just exacerbate the problem of politicizing the agency over time.

  7. Really fascinating subject, Shinta, and a thought-provoking take on it! As some other commenters have said, my first reaction was to feel that an informal consultative process was fine, even a good thing (as Sarah mentioned, the ABA comparison is great). Yes, it does require some belief that the KPK can stay independent and offer good, legitimate advice, but it seems as if the KPK’s independence is important for numerous other reasons as well–so presumably there’s some sort of system in place already to help ensure that stays true? Also, Bea’s comment made me wonder if maybe a formalized process might just as easily lend itself to political showboating as it would to the (positive) result you suggest–or at the least, if the public comment by the KPK would lend itself to being interpreted by the public as political commentary.

    On the other hand, maybe transparency is just a general good, so something that promotes that–like a formalized process–might be smart.

    To switch directions again, though, I’m under the impression that a large part of the reason the ABA can successfully evaluate candidates is that its interviews with people who know them are confidential, allowing for more candor. If the KPK is an effective anticorruption body, maybe it already has enough sources that this concern doesn’t carry over to it, but if part of the way it went about evaluating people was through sources who wouldn’t have been willing to speak if they knew their comments would be public, maybe that would inhibit the KPK’s ability assess the candidate’s corruption level.

    Then again, allegations of corruption seem like the sort of thing that SHOULD be brought forward (as opposed to some of the factors that may go into an ABA decision), so maybe, for due process reasons, we don’t want to give much credence to unproven corruption allegations (easily made for political reasons, though hopefully the KPK investigates any such allegations before basing its recommendation on them) or encourage people to remain publicly silent about corruption they know or believe to be occurring.

    To sum up: I guess I really don’t know whether formalization would be better. This action, though, seems really welcome, and at least like a positive sign for the direction of the new government.

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