BUMN And Deputy Minister Commissioners At The Same Time? The Constitutional Court Is Just Talking, Not Binding

Chairman of the Indonesian People's Consultative Assembly (MPR), Ahmad Muzani, emphasized that there is no binding legal prohibition against deputy ministers (wamen) in the Red and White Cabinet to hold concurrent positions as commissioners of State-Owned Enterprises (BUMN).

This affirmation was conveyed by Muzani in response to public debate that surfaced after the Constitutional Court (MK) issued a decision in a judicial review case related to the dual position of public officials.

According to Muzani, the Constitutional Court's statement in the case did not have forced legal force, because it was only a consideration or a dictum obiter, not a binding decision.

"It was not a decision, but only a consideration. The decision did not mention a prohibition for the deputy minister to hold multiple positions. So there are no binding direct legal implications," said Muzani in his statement, Wednesday, July 23.

He explained, because it is only part of legal considerations in the Constitutional Court's decision, the government has no obligation to follow up on this in the form of policies or administrative decisions.

There is no obligation for the government to carry out these considerations. What is binding is the verdict, not the opinion that is taken into consideration," continued the senior Gerindra Party politician.

The issue of the dual position of deputy minister resurfaced after the Constitutional Court received a request for a judicial review of the rules that allowed a deputy minister to serve as a BUMN commissioner.

The application was submitted by a citizen named Juhady Rizaldy Ruringkon. However, the legal process was stopped because the applicant was declared dead, so the application was declared unacceptable.

Although the petition was not processed further, in its legal considerations the Constitutional Court said that in principle, the deputy minister should comply with the provisions of the prohibition of concurrent positions with the minister. The reason is that both ministers and deputy ministers are appointed and dismissed by the president, so that they have a similar position in the executive structure.

However, Ahmad Muzani reiterated that these considerations did not immediately become the legal basis for prohibiting concurrent positions.

"If the Constitutional Court really wants to make binding provisions, it should be stated in the verdict. But this is not. So we cannot treat it like a positive law that applies," he said.

Meanwhile, this polemic is also in the public spotlight because it involves the ethics of clean and professional governance. Some have voiced concerns that concurrent positions have the potential to cause conflicts of interest and reduce the quality of the performance of public officials.

However, until now there has been no regulation that explicitly prohibits deputy ministers from holding concurrent positions as commissioners of SOEs. The existing regulations, such as Law Number 39 of 2008 concerning the Ministry of State and Presidential Regulations regarding the appointment of deputy ministers, have not specifically regulated the prohibition.

Ahmad Muzani closed his statement by suggesting that the legal and ethical discourse on public office should be resolved through legislative instruments or administrative policies, not just interpretation of court legal considerations.

"If it is deemed important to be prohibited, then clear rules need to be made. It can be through a presidential regulation or a revision of the law. That is the right and legal way," he concluded.