While most of Indonesian civil society was up in arms about controversial revisions to the Criminal Code (KUHP) last week, the national legislature quietly went about passing a separate piece of revised legislation, and one with just as grave consequences for democracy. On 14 February, the legislature passed reforms to Law No. 17 of 2014 on Legislative Bodies, commonly known as the MD3 Law.
The revised MD3 Law looks set to produce a House of Representatives (DPR) that is resistant to criticism and immune from prosecution. For years, the Corruption Eradication Commission (KPK) – with the support of civil society – has withstood efforts by the DPR to erode its authority. Through these revisions, the DPR may have finally got what it wanted.
One of the most egregious reforms of the revised MD3 Law relates to Article 122(k), which states that one of the tasks of the House Ethics Council is to take legal or other steps against individuals, groups or legal entities that tarnish the dignity of the DPR or its members. Through this article, members of the DPR will have the power to criminalise anyone who they feel has sullied their reputations.
The second problematic component is Article 245, which states that if law enforcement officials, such as police, KPK investigators or prosecutors, wish to interrogate members of the DPR, they must first “consider the views of” the House Ethics Council. This article restores language that the Constitutional Court declared unconstitutional back in 2015. The original Article 245(1) of the 2014 MD3 Law stated that interrogation of DPR members who were suspected of committing a criminal offence required written approval from the House Ethics Council. But in Decision No. 76/PUU XII/2014, the Constitutional Court, recognising the conflict of interest this involved, ruled that the article was unconstitutional unless it was read as “written approval of the president”. Although the 2018 MD3 Law uses softer language – “consider the views of” – the DPR is clearly trying to make it difficult for KPK investigators to question members of the DPR involved in corruption cases, as they will have to first seek approval from the DPR Ethics Council.
Another article seemingly designed to weaken the KPK is Article 73, which states that it is “mandatory” for police to forcibly bring people in for questioning by the DPR. The DPR reportedly added the word “mandatory” to ensure there was a way to compel district and provincial leaders to attend questioning at the DPR, a process that many local leaders had avoided. But by revising the article in this way, the DPR can also force members of the KPK to be questioned by the legislature. The article even allows police to detain parties who refuse to attend questioning by the DPR for up to 30 days. It is hard to view this as anything but a response to the special inquiry into the KPK, which the anti-graft body refused to acknowledge as legitimate.
It will now be almost impossible to criticise the DPR, as any criticism could be perceived as degrading its members’ dignity. The DPR will be immune from legal action because whatever its members do, there are no state authorities that can investigate or prosecute DPR members without first seeking the DPR’s approval. And to top it all off, the DPR has given itself the power to force the police to take action against people who its members feel have insulted their dignity.
The revised MD3 Law was supported by the Indonesian Democratic Party of Struggle (PDI-P), Golkar, National Awakening Party (PKB), Hanura, Gerindra, National Mandate Party (PAN) and the Prosperous Justice Party (PKS) and was passed following consultation with the government, in this case the Ministry of Justice and Human Rights. But Minister Yasonna Laoly said that because he was so busy, he didn’t have the chance to inform President Joko “Jokowi” Widodo about the most controversial revisions.
After stressing that Jokowi did not know about the contentious articles, Laoly said that there was a possibility the president would not sign the revisions into law – which is what eventuated on 21 February. This is a moot point, as the revisions will become law within 30 days whether Jokowi signs them or not. Frustratingly, Laoly said if anyone had a problem with the law, they were welcome to challenge it at the Constitutional Court. Laoly’s statements make it quite clear that he knew what he was doing, and the revisions were the result of collaboration with his party, PDI-P, the largest party in the government coalition.
It is also worth noting that this law was passed at a time when the DPR committee working on revisions to the Criminal Code (KUHP) had agreed on re-inserting articles on insulting the president. In the draft revised criminal code from 10 January, Article 263 makes it an offence to disseminate insults against the president or vice president, and violation of the article carries a sentence of up to five years in prison. Similar articles in the existing KUHP had been revoked by the Constitutional Court back in 2006. What’s worse, the DPR is seemingly seeking to strengthen and broaden these terms by extending them to insults made online, through Article 264. The DPR has since said that the proposed articles are still being discussed, but it is hard to avoid reaching the conclusion that both the DPR and the executive are seeking to take advantage of the law reform process to consolidate their power.
There is certainly precedent for this kind of behaviour. When the 2014 MD3 Law was passed in the last few months of the 2009-2014 period, a day before the 2014 Presidential Election, DPR members used the reform process to ensure that the leadership of the DPR would be selected by members, instead of being allocated based on the proportion of seats won. This allowed parties that were members of Prabowo Subianto’s Red and White Coalition to control all DPR leadership positions, and deny PDI-P the DPR leadership role, which had previously been guaranteed to the largest party in the DPR under the 2009 MD3 Law.
The 2018 MD3 Law will have grave implications for the fight against corruption, civil rights and the already declining quality of democracy in Indonesia. Almost all corruption mega-scandals involve collusion between members of the DPR, bureaucrats and big business. Providing DPR members with near immunity from investigation will open the floodgates. At the same time, Indonesia’s shaky civil freedoms will come under more pressure.
The revised MD3 Law and the proposed criminal code revisions on insulting the president show that the interests of the DPR and executive are much the same. They are both willing to operate outside the bounds of democracy to consolidate their power.