Taking Jokowi to court over Covid-19: is the government liable?

President Joko Widodo’s government faces a class action over its poor handling of the Covid-19 crisis. Photo by Hafidz Mubarak A for Antara.

 

After claiming zero cases of Covid-19 as recently as February, Indonesia has now confirmed more than 14,200 cases of infection and 991 deaths. What’s worse, the real numbers are estimated to be much higher, due to low rates of detection.

 

The pandemic has also hit Indonesia’s economy hard. At the beginning of April, it is estimated 90% of the 1.5 million workers in Indonesia had lost their jobs, or been sent home with only a fraction of their pay. The urban poor bear a disproportionate burden and risk in these changing economic circumstances. Small and medium businesses have suffered, and many are struggling to pay back loans.

 

To hold the government accountable for its poor performance in handling the pandemic, and for the public suffering it caused, a group of workers from small and medium businesses submitted a class action lawsuit to the Central Jakarta District Court in April. They claim negligence by President Joko “Jokowi” Widodo in his late response to Covid-19, and ask for more than Rp 10 billion in damages.

 

The plaintiffs argue that for the first two and a half months after coronavirus was reported in Wuhan, the government did nothing to prepare for it reaching Indonesia, instead attempting to reassure the public with jokes.

 

The plaintiffs certainly have a lot of examples of the government’s disappointing response to the disaster, such as high-level officials joking that the virus would not affect Indonesians because we eat nasi kucing (a street dish) and are therefore immune. Or others claiming that the virus could not enter the country because it would have difficulty obtaining a permit. Meanwhile, the Minister of Health, Terawan Agus Putranto, stated that people just needed to pray and relax because Covid-19 was a self-limiting disease, and many patients would recover without treatment.

 

These responses led to public frustration exploding on social media. The Indonesian Doctors’ Association (IDI) sent letters begging the government to provide proper personal protective equipment and implement rapid public testing. Only on 29 February did the National Disaster Management Agency (BNPB) finally declare a state of emergency.

 

Since then, the government has enacted regulations on public health and economic support programs, and large-scale social distancing (PSBB) measures now limit activities in Jakarta. The government has also moved to ban the tradition of mudik, whereby millions of urban workers typically return to their home villages to celebrate Eid.

 

To help vulnerable groups, the government has now reallocated state budget funds to public health services, welfare, and support for businesses. At the local level, some leaders have performed well in consolidating efforts by government bureaucracy and civil society. For example, the governor of West Java released an online information and coordination platform, named Pikobar. This enables local residents to access a reliable tracker map of the spread of Covid-19, register for rapid tests, and volunteer assistance.

 

But is it too little, too late?

 

The national government responded to the Covid-19 lawsuit by saying it cannot be held liable because the current crisis is historically unprecedented, and the scale of its impacts could not have been predicted. Additionally, the government asked the public to compare the damage suffered by Indonesia to that of other countries, arguing that Indonesia has managed the pandemic relatively well.

 

So, does the case have a chance in court?

 

This is not the first time Jokowi’s government has been taken to court by citizens. The Supreme Court previously upheld a ruling by a lower court holding Jokowi and his government liable for failing to adequately mitigate and respond to the disastrous 2015 fire and haze crisis. The court found the government had violated citizens’ right to a healthy environment.

 

Judging from the haze case, the chances of success for the Covid-19 lawsuit are quite high, requiring only evidence to prove the government’s poor handling of the event, and, importantly, evidence of tangible damage suffered by plaintiffs.

 

But there are obstacles. Perhaps taking a lesson from the experience of the haze case, Jokowi recently issued a new presidential regulation in lieu of law (Perppu) on Covid-19, which states that the government cannot be sued in civil or criminal cases for implementing policy with good faith. It is not yet clear whether the regulation will give Jokowi and his government the impunity they want.

 

The issue of government liability has long been debated. In the 19th century, British jurist A.V. Dicey raised the idea of placing governments and citizens as equals before the courts. In more recent times, legal thought has shifted to what the proper measures are to test government liability in the courts. Rosenthal mentions accountability as one such test.

 

On this count, Jokowi’s leadership in the Covid-19 crisis has left much to be desired. The president and his government have been widely criticised for a lack of transparency, for example by providing unreliable reports on the number of cases present in the country, with national reports not matching up with provincial reports.

 

Likewise, in relation to the procurement of equipment to handle the pandemic, the government recently assured the public that 150,000 rapid test kits had arrived from China, yet hospitals in many provinces are still struggling to obtain them.

 

Under Indonesian civil law, the principle of accountability is equated with acting in good faith. Courts typically examine government liability using Article 1365 of the Civil Code, which governs tort. Under Article 1365, any person who causes damage and/or loss to another party by means of an unlawful act must, because of his or her fault in causing the loss, compensate for that loss.

 

In a class action like this, where the defendant is the government, courts must examine whether causality can be proven between the government’s actions and the damages suffered by plaintiffs. In the Covid-19 lawsuit, the court will have to examine whether the government’s poor handling of the pandemic caused the losses suffered by the plaintiffs. For example, by not providing enough tests and immediate policy measures on social distancing, the number of infections spiked, which caused a situation of economic uncertainty, resulting in the plaintiffs’ financial loss.

 

Finally, Indonesia is a party to the 2005 International Health Regulation, a legally binding instrument of international law dedicated to global health security. In the Covid-19 case, the court may examine whether the government effectively employed surveillance systems and laboratories to detect potential health threats, and reported on the potential for a public health emergency. At the national level, Indonesia has also equipped itself with numerous laws to protect citizens in the event of natural and non-natural disasters. These international and national instruments create a solid legal basis for the plaintiffs to sue and be compensated.

 

The success of otherwise of the Covid-19 lawsuit is a matter for the courts. But whatever the outcome, the case delivers a clear message to Jokowi: the public are watching the poor handling of this disaster, and are prepared to hold their leaders accountable.

 

Laras Susanti is a researcher at the Center for Law, Gender and Society and a lecturer in the Faculty of Law at Gadjah Mada University.