Mahfud MD was chief justice of the Constitutional Court from 2008-2013. Photo by Mahfud MD.
Last week, former Constitutional Court Chief Justice Mahfud MD visited the University of Melbourne’s Law School. Indonesia at Melbourne sat down with Pak Mahfud to chat about a number of the controversial cases that came before the court during his tenure, as well as prospects for anti-corruption and bureaucratic reform under President Joko Widodo.
You led the Constitutional Court in 2010 when it ruled to uphold the 1965 Blasphemy Law. The law has been used with increasing frequency to target members of minority religions. There have been more than 150 people detained since 2003 under Article 156a of the Criminal Code (which is based on this law) and most of those detained have been religious minorities. Why does the law need to remain?
It’s true that during the New Order period, and especially recently, this law has been used by the majority religion to discredit certain religions. The Constitutional Court never said that the law was correct or good, only that it did not conflict with the Constitution. Its contents are outdated because it only recognises six official religions and has failed to keep pace with the development of religion in Indonesia. The Court would have preferred to have revised the law straight away but the authority to change the law resides in the national legislature (DPR), not in the Court. The Constitutional Court only has the power to cancel legislation. If the law was revoked, we would end up with a legal vacuum. Then if something happened that the community considered blasphemous, you would end up with people taking the law into their own hands.
What do you think needs to be done to revise the law?
The government is now preparing a law on religious freedom (the bill on the protection of religious communities). This will protect religious freedom, while eliminating all opportunities for blasphemy. The contents of the bill are still being debated and there have been a number of sticking points. Every time it is discussed, the same issue is raised: how do we decide which religions are formally acknowledged by the state? Religion comes from God, how can the state determine what should be considered a religion? Three criteria have been suggested: there is a prophet or symbol, a receiver of divine wisdom; there is a religious text; and there are more than 10,000 followers. These criteria are important because the government will provide funds for officially recognised religions. There is acceptance of the other general principles in the bill – every person has the right to freely chose their religion and every person has the right to protection. But determining the criteria for a religion to be protected by the state has been contentious. We haven’t been able to find a way out of this impasse.
Why does the state need to interfere in the religious life of its citizens?
It is not possible for Indonesia to take the path of a country like Australia, where the government decided that it would not regulate the religious life of its citizens. The Indonesian nation was born from a debate between Islamists and nationalists. The compromise was that religion would be regulated and incorporated into the state, although all religions were to be given the same opportunity, and to be provided with protection. That was the agreement for the country to based on the Pancasila. In Australia, where the debate was between Catholics and Protestants, the state said that it would not interfere whatsoever. But in Indonesia, religion has been incorporated into the state since the very beginning – that’s our constitutional challenge. We will look for a solution that respects human rights, because that is a central principle for Indonesia, but also provides a role for religion in building the nation.
Another controversial case decided by the Constitutional Court during your tenure involved the upstream oil and gas regulator, BP Migas. The Court ruled to disband the institution – yet it remains.
When the Constitutional Court struck down the articles in the 2001 Oil and Gas Law that resulted in the dissolution of the upstream oil and gas regulator BP Migas, it was widely known that corruption in the institution was out of control. Muhammadiyah proposed a judicial review because it was aware of pervasive corruption in the institution. Corruption had been reported to the national legislature and several lawmakers made strong statements about handing out severe punishments. But not long after this, the lawmakers changed their tune, and suddenly everyone was praising BP Migas and its contribution to the national budget. Members of Nahdlatul Ulama and Muhammadiyah said to me, “What is going on? We know there is rampant corruption there but everyone is praising it.” I suspect that those legislators were paid to say positive things about the institution. Although lawmakers were applauding it for contributing Rp 500 billion (AU$50 million) to the state budget (APBN), it should have been contributing more than Rp 2 trillion.
The amount of corruption was extraordinary – the institution was interfering in politics, and there was widespread manipulation of the books. We disbanded the institution altogether because, as the Constitutional Court, we couldn’t reform or change the nature of the institution. I told former Minister of Energy and Mineral Resources Jero Wacik that this would provide him with the momentum to improve the institution, to close the channels of corruption. But all that was changed was the name of the institution. I warned him that he would get caught up in corruption charges if he didn’t change things quickly, because corruption had already been reported to the Corruption Eradication Commission (KPK). But as we know, Jero Wacik was caught, and so were a number of lawmakers.
Why is political corruption so difficult to eradicate?
Almost all political leaders in Indonesia – from the centre to the regions – get into their positions by paying someone. It might be an individual or it might be a consortium, but whoever it is, these leaders are eventually hostage to their financial backers. Consider mining licenses in East Kalimantan. There are districts where there are only 200,000 hectares zoned for mining but 400,000 hectares worth of mining licences issued. A district head will come to power and re-issue licences for land already allotted to corporations by his predecessor. He is forced to do so to get kickbacks to repay the people who supported his nomination. Candidates are hostages in these situations, so corruption eradication will never be effective.
I was Minister of Law for a few weeks under President Abdurrahman Wahid (Gus Dur) before he resigned. I had a number of proposals to resolve corruption. The most important was to reverse the burden of proof. If a public figure’s wealth exceeded that expected in his or her position, the person would be required to prove that his or her assets were not the result of corruption. The second was to completely clear the bureaucracy. All officials who were in politics of government in 1998 could no longer hold their positions, according to law. The assumption was that they were all dirty, so they would all be forced to resign. Directors general, ministers, party leaders – just consider them all corrupt and allow a new generation to emerge. This approach had success in Eastern Europe, in Latvia, for example. The other alternative would be similar to the reconciliation process in South Africa. All would be pardoned, but if they were caught again, punishments would be severe, even the death penalty, if needed. That’s what I offered. But before we had the opportunity to implement my plan, Gus Dur was impeached.
Large amounts of donor funds have been poured into bureaucratic reform but there has been no significant change. Do you think bureaucratic reform has failed?
There has been no significant change in our bureaucracy, it is a rubbish bureaucracy. You can formulate new policy, have control of your ministers, but if the bureaucracy is full of rubbish you are never going to get rid of corruption. Part of the problem is that official positions are held by political appointees. They hold these positions of influence but are only concerned with finding money for their parties. Almost all ministers are involved in these activities. And if bureaucrats want to further their careers, to become a director general, for example, they have to play along. President Joko Widodo’s proposal of not appointing ministers from political parties was a good one, but not politically feasible. The parties would have got rid of him if he didn’t given them something back. Usually the person who asks for money is a ministerial special staffer. Ministers are able to appoint five non-bureaucratic (“non-structural”) staff, and usually these are political party appointments. They are hidden. I don’t know how to resolve this problem. A president that does not rely on the support of political parties will not be elected, so I don’t know how we overcome this issue.
Reform in Indonesia is always good in the first one or two years of an administration. Even Soeharto was good for the first couple of years of the New Order. Look at the reform era. The reforms between 1999-2002 were strong, we saw the birth of the KPK, the Constitutional Court, and the Judicial Commission, for example, but since then we have seen a return to the old ways – the buying and selling of votes in the national legislature. I have only identified the problem. How do we ensure that the 3-4 years of improvements that occur at the start of regime change can be extended?
Do you hold any hope for the legal reform package recently proposed by Jokowi?
During Jokowi’s first and second years in power he focused on political consolidation. When he arrived in the job there were concerns that the government would be highly unstable because the opposition was so strong. But he has been able to consolidate support and we can now say that all political institutions are under his control. Jokowi’s economic stimulus packages, which were designed to promote investment, have been less effective. And this is largely because of problems of law: overlapping regulations and violations of the law.
What is needed to reform the legal system? We certainly don’t need any more new laws. When you talk about the three subsections of law: legal substance, legal culture and legal structure, our problem is primarily with legal structure, the enforcement of the law. Then when you talk about enforcing the law, there are the courts, where the main actors are judges, prosecutors, lawyers and police, and the bureaucracy, which is a much bigger problem. In the courts, although the problems are complex, it is easy to map exactly where the problems are. The bureaucracy is another matter and is much more challenging.
