Dr Dave McRae speaks to RN Breakfast about the planned execution of narcotics prisoners in…
Archanda Tahar is the now former minister for energy and mineral resources. He held office for 20 days — the shortest period in Indonesian history — before he was honourably discharged by President “Jokowi” Widodo. Arcandra was installed by the president in his second cabinet reshuffle on 27 July, replacing the outspoken Sudirman Said. But in his second week in the job, rumours spread rapidly across social media that Arcandra had pledged allegiance to the United States in 2012, and the new minister was suddenly in deep trouble. According to Indonesian law, acquiring citizenship from another country results in automatic loss of Indonesian citizenship.
Arcandra had lived in the United States for more than 20 years before he was unexpectedly tapped by President Jokowi. Presumably his recruitment was kept so secret that the few people who had scouted him had failed to check his nationality status before his inauguration. Only after his US passport photo went viral did the palace realise it had violated Law No. 39 of 2008 on the Ministry, which clearly stipulates that one of the requirements to become a minister is Indonesian citizenship.
The situation deteriorated further because neither Arcandra nor the palace was able to provide the public with a clear answer about his nationality. Asked if he held a US passport, Arcandra replied that he had a Padang (West Sumatran) face and a valid Indonesian passport. Days later, the minister of law and human rights, Yasonna Laoly, confirmed that Arcandra held a US passport but argued that he was still Indonesian because his loss of nationality had not been formalised by a ministerial decree.
Arcandra’s explanation that he still holds an Indonesian passport and had “returned” his US documents – whatever that means exactly – does not prove that he is an Indonesian citizen. According to Article 23 of Law No. 12 of 2006 on Citizenship, a person loses his Indonesian nationality if he obtains foreign citizenship by his own will, voluntarily takes an oath of allegiance to a foreign country, or holds a passport of a foreign country. Arcandra meets all of these conditions.
Minister Yosanna wrongly argued that Arcandra was still Indonesian, because his loss of citizenship had yet to be formalised. But a Government Regulation (No. 2 of 2007) further clarifies the process, stating that in these circumstances Indonesian citizenship is lost “dengan sendirinya”, meaning automatically, or without further process. The fact that Arcandra still held an Indonesian passport simply showed that he had failed to report to Indonesian authorities that he had obtained US citizenship. His Indonesian passport was legally invalid the moment he received US citizenship.
Some have even argued that Arcandra is now stateless, having already returned his US nationality. US immigration procedures may not be this simple, but in any case, the Ministry of Law and Human Rights is now working to help Arcandra regain his Indonesian citizenship. This may also not be simple. Vice President Jusuf Kalla has stated that the government will give Arcandra Indonesian citizenship by using Article 20 of the Citizenship Law, which stipulates that president can award Indonesian citizenship to somebody who has provided service in the national interest. The president is required to seek the support of the House of Representatives (DPR) before doing so but, given that the majority of the DPR now supports the president, I suspect this support will be forthcoming. Nevertheless, the process will no doubt raise questions about what contribution Arcandra has made to make him eligible for regaining his Indonesian citizenship. Further, Article 20 also requires that awarding citizenship in this manner should not result in the recipient having multiple citizenships. In Arcandra’s case, he must have legally lost his US nationality before he is eligible under Article 20.
If President Jokowi had insisted on keeping Arcandra in his position he would have breached the 2008 Law on the Ministry. Further, the minister of energy and mineral resources is a highly sensitive position to give to someone whose nationality is under a cloud. As a US citizen, Arcandra would face serious questions any time he was forced to make decisions affecting US companies. The public has already questioned his integrity in relation to a decision he made extending the export license of US mining giant Freeport. It is not clear if this decision will stand. Based on the Law on Ministry, any decision made should have been reversed because Arcandra’s position was null and void from the moment he was inaugurated on 27 July. But because President Jokowi decided to honourably dismiss him from the position — a legal compromise — one could argue that Arcandra’s decisions as minister were still valid.
In light of the fact that Arcandra cannot be considered an Indonesian citizen according to law, President Jokowi’s decision to dismiss him was the right one. Leadership is not only about making good decisions but also having the guts to right wrong decisions. This is usually a much more difficult proposition, especially for the president, who could quite easily use his many powers to forge ahead with a wrong decision. But while President Jokowi quickly reversed his mistake, there must be a serious review into how such a fundamental error could have been made in the first place.
The formulation of a cabinet is a strictly confidential process, involving the president, vice president and a select few ministers. When I served as President Susilo Bambang Yudhoyono’s special advisor for legal affairs, human rights and anti-corruption, only two ministers were involved in the process: the state secretary and the cabinet secretary. Although the process is kept confidential, presidential staff still have the time to check and recheck a president’s decision before it is executed. Sometimes the window of opportunity is limited, yes, but this is no excuse for such a careless mistake as appointing Arcandra without first resolving the question of his nationality.
In 2011, when President Yudhoyono reshuffled his cabinet, a similar mistake was nearly made. Yudhoyono called several candidates for deputy ministerial positions to his residence in Cikeas. I advised the president that, based on the presidential regulation on requirements for deputy ministers, nearly all of the proposed candidates were ineligible. The regulation was subsequently amended before the reshuffle, and the president was saved from making an embarrassing mistake.
Staff close to the palace, including Presidential Chief of Staff Teten Masduki, State Secretary Pratikno, Cabinet Secretary Pramono Anung, and the Presidential Advisory Council (Wantimpres) must carefully review their procedures for advising President Jokowi. I second the suggestion of former Constitutional Court Chief Justice Mahfud MD that the president needs an expert on constitutional or administrative law in his inner circle.
Now that Arcandra’s case has been resolved, there remain questions about whether it will it provide the impetus for the adoption of multiple citizenship in Indonesia. President Jokowi has already stated that he would accelerate reform of the 2008 Citizenship Law to provide for dual citizenship. Typically, he has used arguments about the potential contribution of the Indonesian diaspora to national development to justify the concept. Such arguments may be more palatable politically but the process will not be easy.
Despite the advantages of a dual system, the majority of the public still reject multiple citizenship. Perhaps Indonesia could take a middle path. It could permit Indonesians who live abroad to take on the citizenship of their resident country without this leading to automatic loss of Indonesian citizenship. Foreigners who wished to become Indonesian, however, would still have to go through the normal naturalisation procedures, and would be required to renounce their existing citizenship. This model of limited dual citizenship might well be politically possible in the current environment.