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Gadjah Mada University’s (UGM) constitutional law expert Zainal Arifin Mochtar delivering his expertise in the judicial review hearing of the State Ministry Law through video conference, Thursay (12/3) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—Government agencies must be dynamic because they follow the times and technology, for example adapting to needs, including the need for deputy ministers, said Gadjah Mada University’s (UGM) constitutional law expert Zainal Arifin Mochtar in the sixth judicial review hearing of Article 10 of Law No. 39 of 2008 on State Ministries on Thursday (12/3/2020) in the Plenary Courtroom of the Constitutional Court. The case No. 80/PUU-XVII/2019 was petitioned by Forum on Law and Constitutional Studies (FKHK) Chairman Bayu Segara. 

Videoconferencing his statement, Zainal explained that the functions of the government and its apparatus must also be dynamic. Therefore, the president has the authority to respond to the dynamics, such as by electing deputy ministers.

"The president as the highest person in charge in a presidential system must have the authority in question to respond to the possibility of dynamic needs of the government. That is actually the origin of the constitutional concept that, I think, initiated the office of deputy ministers," he said.

Zainal also said that legally the deputy minister office can be interpreted as a new functional position that serves to assist the president and be part of the leadership structure with specific duties. Thus, a deputy minister must fulfill a certain capacity with a certain level of competence as well. In essence, a public office must continue to maintain their integrity, accessibility, and capability. 

"Therefore, even though the deputy minister office means an aide in the State Ministry Law, it cannot be interpreted as singular and it must even be interpreted broadly. It means that [it assists] in formulating and implement ministry policies," Zainal explained. 

To be a deputy minister along with its specific duties, he added, one must fulfill requirements and universal standards. Zainal believes the office is optional, but may become compulsory if there are specific duties that need to be done to assist the president in optimizing the administration.

Not Prohibited

Zainal emphasized that the deputy minister office is not prescribed in the law, but not impossible to create in the government structure. In a presidential system, a president is the head of government. In this case, the president acts as the party who manages government affairs and its territory to improve the welfare of the people. This means that this function is carried out by the president in his authority to fill ministerial positions in order to support his performance.

"So, the president may form non-ministerial offices including appointing deputy ministers. The absence of such regulation does not mean that the appointment of deputy ministers is prohibited," Zainal explained before the hearing led by Chief Justice Anwar Usman along with the other constitutional justices. 

Zainal argued that the president can determine the number of ministers, the composition of the cabinet, and appoint officials. That is why no provisions firmly restrict the president regarding the State Ministry Law in relation to appointing deputy ministers. "Thus, the deputy minister office has constitutional reasons," he said. 

In his petition, the Petitioner challenges the constitutionality of the inauguration of 12 deputy ministers by President Joko Widodo on October 25, 2019. He believes it is in violation of Article 1 paragraph (3) of the 1945 Constitution as the deputy minister office is subjective without a clear position, authority, and function in the State Ministry Law. The function of deputy ministers is regulated by a presidential regulation, which goes against the constitutional rules, in which the duties and authority of the deputy minister are subject matters of the law. 

The State Ministry Law does not regulate the duties, functions, and authorities of deputy ministers at all. This certainly can lead to arbitrariness, by giving authority to deputy ministers without involving the House as the people\'s representatives. The Petitioner also mentioned that the appointment of 12 deputy ministers was a subjective act of the president, which did not have a clear reason for urgency. The Petitioner considered the deputy ministerial position to have resulted in the state having to prepare special facilities, which only wasted the state budget. 

Before concluding the session, Justice Anwar informed all parties that the next hearing will be held on Tuesday, March 24 at 14:00 WIB to hear the statements of two experts for the president. Sri Pujianti/A.L./LA)

Translated by: Yuniar Widiastuti

Translation uploaded on 6/29/2020

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