We are confronting an acute conflict-of-interest crisis

Mohamad Mova AlAfghani
The Jakarta Post, Tuesday, October 24, 2023

The Constitutional Court's recent decision on the age limit for presidential and vice presidential candidates last week paved the way for the nomination of President Joko "Jokowi" Widodo's eldest son Gibran Rakabuming Raka as the running mate of presidential candidate Prabowo Subianto.

Many has expressed dissatisfaction to which Gibran earned a golden ticket to the 2024 presidential election despite his lack of experience in state affairs. But in my opinion, the cause of concern is the conflict of interest during the judicial proceeding and on potential conflict of interest in the upcoming election process.

The court upheld the minimum age of 40, but allowed an exception for those for those elected to public office, including as regional head. Gibran, the Mayor of Surakarta, Central Java, just turned 36 on Oct 1.

A conflict of interest is a situation when an individual or entity has a personal or private interest that could potentially conflict with their duty to act in the best interests of a broader public or collective entity.

A judge who is adjudicating his own son for example, is in clear conflict of interest situation. On the one hand, he has a private interest as a father that the case will benefit his son and on the other hand, as a judge he has a duty to deliver justice without compromise.

This does not mean that a conflict of interest situation will always end up in a biased outcome -- the judge can still render the harshest punishment to his son, for example. But when the outcome of the case is to his son's favor, then it is difficult not to suspect that he was biased. The best way to exit a conflict of interest situation is for the judge to recuse himself from the case.

There are arguments suggesting that a conflict of interest situation does not arise from the case at hand where Gibran's uncle by marriage, Chief Justice Usman, is sitting on the panel.

The reasoning is because Judicial Review cases deals with normative and general principles, instead of individual interest. Hence, the argument goes, the outcome of the case at hand will benefit any below 40 regional heads, not a a particular individual such as Gibran. I do not see the merit of this argument, however. There are only few below 40 regional heads and secondly, among those below 40 regional heads, it is Justice Usman's nephew, Gibran -- who has been offered nomination by Prabowo's camp. As such, when considering the context of the situation, the conflict of interest was obvious.

The second conflict of interest arises for Jokowi. As sitting president he will have a "private" interest in the success of his son's election and a duty in safeguarding the neutrality of the state apparatus. Jokowi has promised to remain neutral, but, in a bureaucratic culture such as ours, leaders' gestures or vague statements can be interpreted as directive by bureaucrats.

What happened at the Constitutional Court was not an isolated incident. The crisis of conflict of interest crisis in our country is already pervasive. Many national figures have already mentioned the trend of PengPeng (Pengusaha-Penguasa or Ruler-Businessmen) which captures regulation and policy in order to satisfy their own private business interests. In many cases the debate is simplified into whether or not a certain high ranking official owns shares at a particular company, however, we all know too well that there are many ways to hide a person affiliation with the businesses he controls. Likewise, proximity with power could determine access to resources.

Back to the Constitutional Court; last year, Justice Aswanto was replaced by the House of Representatives that had nominated him because it viewed him as being unable to commit to safeguarding laws endorsed by the House, such as the Job Creation Law. The replacement was a blatant neglect of the trias politica where Constitutional Judges are supposed to be independent in making their decision and is not subservient to any party .

Just recently, a House member who sponsored Aswanto's dismissal criticized the Constitutional Court Decision that gave Gibran an advantage. In fact, many people who lashes at the Court were, not so long ago, either ignorant, supporter or was actively seeking to weaken state institutions that were the product of the reform era for their own short-term political gains.

Now, hopefully they understand the consequences of a compromised state institutions.

With all the damage that has been done, we need to restore the public confidence in the judiciary and state institutions, especially those dealing directly with elections. Whoever wins the 2024 elections will have the primary interest to secure the legal and social legitimacy of their victory.

I suggest the following steps:

First, an ethics council of the constitutional court needs to be immediately formed given the recent controversial decision and penalize those whose integrity is compromised. Justices with apparent conflicts of interest on the recent decision should consider resigning before this council is formed.

Secondly, all candidates with potential conflict of interest should resign from the cabinet. Coordinating Political, Legal and Security Affairs Minister Mahfud MD, who is the running mate of Ganjar Pranowo, for instance, plays a pivotal role in coordinating various institutions like the KPU, Bawaslu, TNI, and Polri, in ensuring bureaucracy's neutrality in the election.

His access to substantial information from intelligence bodies, including PPATK's reports further amplifies the conflict of interest, potentially impacting the election's fairness. Given the crucial role of the Coordinating Ministry plays, he should tender the resignation and be replaced by someone outside of the existing power structure.

The transparency and participatory processes within the KPU (General Election Commission) and BAWASLU (Election Supervisory Agency) are essential for eliminating doubts and restoring public confidence. KPU and Bawaslu are currently at immense pressure to demonstrate fairness in the election process and as such, should leave no room for doubts.

Finally, President Jokowi should be committed to these efforts and should remain neutral both in words and in deed. He should not be involved in any political mobilization. Meanwhile, the House of Representative should provide oversight of the intelligence and security apparatus to make sure that the President use intelligence information in an accountable manner. All the measures may not be adequate to impede dynasty politics but can prevent the public trust from eroding and turning into a political crisis.