The General Elections Commission (KPU) appears to have had enough of the scores of politicians investigated and imprisoned for corruption. It has passed two regulations designed to limit the participation of corrupt candidates, sending shockwaves through the political establishment.
Earlier this month, the KPU passed KPU Regulation 20 of 2018, which requires all political parties to sign an integrity pact that has three components.
First, parties must commit to selecting candidates with integrity – they must not have shown indications of corruption or nepotism and should not have violated the law.
Second, parties are specifically prohibited from proposing candidates who have previously been imprisoned for corruption, child sexual abuse or drug crime.
Third, the KPU has pledged to invalidate the candidacy of any politicians found to have previous convictions for these crimes.
The regulations are in many ways a “red card” for corruptors. The KPU has been widely praised by the public and civil society activists for this initiative. The regulations have been hailed as a breakthrough capable of putting a dent in the corruption cultivated by the Indonesian electoral process.
Unsurprisingly, there have also been dissenting voices, particularly from the corrupt officials who would be barred from participating under the new rules. Some have claimed that there is no strong legal basis for the regulation and it conflicts with higher level regulations and statutes.
The controversy over the regulations recalls the long debate over the best regulatory strategy to break the cycle of corruption in democratic Indonesia. Regulations that not only have a strong legal basis but also provide room for public participation in the fight against corruption offer the highest chance of success.
As a regulator, the KPU could learn from the approach used by the business sector. The relationship between the KPU, political parties, candidates and the public is much like the relationship between the government, business, goods and services and the public as consumers. In this analogy, political parties offer candidates, just as companies offer goods or services.
In the business world, regulators generally have three options for regulation: through law, the company, or the market. In the context of the electoral system, the three equivalent factors are law, political parties, and the public.
The most common approach to regulation of the business sector is the legal approach. This approach is considered most effective in creating change. According to this approach, the regulator, as the responsible authority, determines the criteria for the types of goods and services that can be offered to the market. This is, of course, the approach taken by KPU through Regulation 20, which allows it to decide which candidates can be offered to the public.
This approach can treat the problem at the source, by preventing former corruptors from participating in the elections. But a simple regulatory approach is unlikely to be effective if applied in a complex regulatory environment where there is conflict between regulations at different levels of government.
The KPU is already facing at least five legal challenges to Regulation 20. It would be a disaster if Regulation 20 were annulled for conflicting with a higher-level law or regulation. It must be acknowledged, however, that Law 7 of 2017 on the General Election guarantees all citizens the right to participate in politics, and does not exclude former corruption convicts. This means that there is every chance that the regulation may be cancelled by the Supreme Court on this basis.
The second strategy the KPU could use would be to simply set a regulatory target, as is often done in the business sector. Under this approach, the regulator sets a target and provides the business sector with the responsibility for determining the best course of action for meeting this target. In this case, the KPU encourages political parties not to propose corrupt candidates – much as has been done with the integrity pact in KPU Regulation 20. However, few observers hold any hope that this strategy will be successful – let alone the KPU – given the entrenched role of political parties in perpetuating corruption.
Over recent years, policy makers – especially in liberal democracies – have increasingly shown a preference for market-based regulation. In the business sector, this approach is popular because it encourages governments to minimise prescriptive regulations that are costly or might impede innovation. If the KPU were to use this strategy it could encourage the active participation of citizens in checking those in power, providing them with the opportunity to vote for the representative they prefer (whatever his or her background).
This strategy is not without its critics either. There is no guarantee that the public will vote for the best candidate. Representatives are elected based on the number of votes they receive, not whether they are the best person for the job. In many cases, such as the recent Tulungagung District head election, which saw corruption suspect Syahri Mulyo elected, one could reasonably argue that the worst person for the job was the one who was successful.
A strategy of shame?
These three strategies all have their own strengths and weaknesses. But I favour a different approach – market intervention – a strategy that provides a greater role for the regulator than a market-based approach but is still consistent with democratic principles.
The key question is how do we prevent situations like the Tulungagung District head election from happening in the future? As the lead regulator, the KPU should intervene in the market using a strategy that is in line with democracy. As recent elections have shown, there is a danger in leaving the choice entirely free to citizens, who may not have full knowledge of the candidates they are voting for.
The KPU should consider implementing a systematic campaign to shame corruptors. It could insert anti-corruption activities into the electoral process, so that when Indonesians head to the ballot box, they also have corruption at the front of their mind.
How could this be done? As the KPU has the authority for designing and distributing ballot papers, it also has the authority to treat former corruption convicts differently from other candidates. The KPU could add a special mark or symbol to show that a candidate had previously been convicted for corruption.
Former corruption convicts could also be shamed at the voting stations where they are registered as voters. This strategy could strengthen the electability of other candidates in corrupt candidates’ electoral districts, and send a message to corruptors that if they don’t want to be embarrassed in their own backyard then they had better not get involved in corruption.
Finally, the KPU could rate the parties participating in the election over their dedication to corruption eradication – one “rat” symbol, for example, for every candidate in the party convicted for corruption. This would provide a striking visual clue of how committed each party was to addressing corruption in its ranks.
No doubt the KPU would face blowback for such bold tactics. But a brave approach is needed if Indonesia is ever going to break the cycle of political corruption.
An earlier version of this article was published in Kompas as “Kartu Merah Bagi Koruptor”.