People Think There are Grey Areas in Our Jurisdiction
The Indonesian Ombudsman finally intervened in the rice import polemic last March. Agency Chair Mokhammad Najih said the government’s planned rice import ahead of the prime harvest season had discomposed the public, particularly farmers, while in fact the import would not become necessary until May. Moreover, the agency also found maladministration in the policy making process. Najih added that the Ombudsman had strengthened its role in helping improve the public service quality. In addition to following through with public reports and complaints, it will continue to enhance oversight of the ministries and state agencies. The focus of the watchdogs’ new board will be on economic development issues and their impact on public services. Najih also highlighted the need to expand his agency’s authority.
BARELY two months after his appointment, the new chief of the Indonesian Ombudsman found himself in the middle of the rice import controversy last March. The government’s announcement of its plan to import one million tons of rice ahead of the major harvest season triggered public debates and disquiet especially among farmers who worried that the import would cause the paddy prices to plummet.
The Ombudsman finally stepped in particularly following the discovery of suspected maladministration in the decision-making process. “We gave the government and the implementing agencies a sort of early warning to pay attention to the developing issue,” said Mokhammad Najih, 55, during a special interview with Tempo in his office on Thursday, April 8.
Being confident that the current rice stock is still sufficient based on the food stock data and the national rice production forecasted for 2021, the Ombudsman asked the government to delay the import until May. Two days later, President Joko Widodo announced that there would be no rice import until June. “We took the stance so that decisions could be made and the issue resolved,” Najih said.
Najih explained to Tempo reporters Mahardika Satria Hadi and Nur Alfiyah that the new Ombudsman board will focus on economic development issues and their impact on public services while reports from the public, dual commissioner positions in the state-owned enterprises, and commodity imports will remain on his agency’s radar. Najih, a law lecturer by profession, also said that he would propose to revise Law No. 37/2008 regarding the Ombudsman to expand the scope of the agency’s oversight authority.
What is the rationale behind Ombudsman’s decision to intervene in the rice import polemic?
Among Ombudsman’s authorities to resolve public complaints is early detection. We gave some sort of early warning to the government and the state agencies to consider the growing issue. Before we gave a press statement, we observed for almost 10 days as the polemic continued. We took the stance so that decisions could be taken fast and the issue resolved. Then we held an online press conference and the President took the same decision.
How did the process go until the Ombudsman stepped in to collect data on the rice stock?
There are two approaches in investigating a given public service issue. First, from public complaints. Second, we start from the issue at the center of the public attention which is also related to public service. For instance, the rice import. When the media was abuzz with the topic continuously for many days, we responded. Likewise, we are now analyzing the relocation of the capital city which is again back in the center of hot discussions. What will be its effects on public services? We usually hold press conferences for evaluation results that need to be announced urgently to the public.
Are there any reports from farmers?
None. We do have the Ombudsman’s fast response mechanism.
Why did you choose to announce it to the public via media?
So that the government could take prompt actions. The Ombudsman leadership follows the media, newspaper, magazine or television everyday and saw a public issue that needed our urgent response.
How will the Ombudsman follow up after the rice import has been postponed?
We are scrutinizing the policy, all the regulations relating to the import, starting from the law, government, ministerial to institutional regulations. It is still underway so we cannot give the details yet. Then, in terms of mechanism, we are examining the decision-making process.
When will it be concluded?
As announced by the President, there will be no import until June. I hope we will have finished the study before that. After that, we will give recommendations for improvement or corrective actions for lop-sided policies.
What type of potential maladministration was found in the decision-taking mechanism to import one million tons of rice?
The decision taken at the coordination meeting (the coordinating ministry for the economy) should be backed by scientific evidence that is an in-depth study, as the rice problem is not just about farmers. It also needed to involve all related stakeholders. There are very broad socio-political aspects relating to monetary and basic commodity procurement policies as well as the aspect of public especially farmers.
Does the Ombudsman think that rice import is not a problem as long as the timing is right?
There are errors in formulating this rice import policy. The import is necessary but the (related) policies should be taken together. The State Logistics Agency’s (Bulog) data shows that there is still a stock of hundreds of thousand tons of old rice. What should be done with this stale rice? Meanwhile, the government was planning to import again. Bulog also lamented, “We are told to store the rice but not given directions to distribute it.” They complained about the lack of distribution channels. Bulog has not been given the authority for that.
Before holding the press conference, did the Ombudsman communicate with the government, in this case the coordinating ministry for the economy and Bulog?
We did not. We only gathered data from various sides, including Bulog, and then we determined that the mechanism was erroneous and subsequently reprimanded them. If we issued a written advice and sent it to the president, than it would become (a report on) the violation of the law.
Does the Ombudsman also keep watch on other vital commodities?
We look at all the commodities with import potentials, among others, salt. Policies on rice import have been improved and are now more transparent. We will examine those for other commodities. A lot of public complaints emerged when the rice issue became a hot potato. Why are we hearing about rice import in the middle of the harvest season? It’s not right, you see. This worried us so we interceded to protect farmers from losses.
The practice of dual role by state-owned enterprise (SOE) commissioners is still rampant. The Business Competition Supervisory Commission (KPPU) also found the same. What is your view?
The dual role issue was included in the Ombudsman’s annual report. In fact, we found more findings than the KPPU. On August 3, 2020, the Ombudsman sent a letter to the President containing suggestions for improvement as well as the analysis on the dual role of SOE commissioners.
Has the government followed up on Ombudsman’s advice?
Not yet. Ombudsman’s advice is actually very clear. First, the president is to issue a presidential regulation to define limits and criteria for placement of active structural and functional officials as SOE commissioners by taking into consideration competency and measures to avoid conflict of interest. Second, to set up a single income system for dual roles that does not conflict with legislations. We’ve given alternatives. Actually, the Ombudsman has a rather lax attitude here. Go ahead and have a dual position, but on a single salary.
Are there any other conditions?
We also instructed the SOEs minister to rectify the regulation regarding criteria for commissioner candidates, source of candidates, assessment and selection procedures, mechanism as well as rights and responsibilities, and performance accountability of the commissioners. They must also do a quick evaluation and suspend commissioners on dual role who are found to have been appointed via ways that violate the law.
The ministries and state institutions have not responded promptly to Ombudsman’s advice or recommendations. Is the Ombudsman not being heard?
I think this is a problem of our bureaucratic culture. Maybe because we have too many oversight authorities, (chuckles). The ministries have internal oversight body called inspectorate. Then we have the Supreme Audit Agency (BPK), Finance and Development Supervisory Agency (BPKP), Corruption Eradication Commission (KPK), KPPU, and so on. Functions are different for sure but the Ombudsman focuses on public services, what the public experience. Corrective actions that we carry out at ministerial and agency levels are actually getting better.
What are the indicators?
One of the indicators stipulated by the administrative and bureaucratic reform ministry is that a state agency or institution that does not comply with Ombudsman’s advice or recommendations will have consequences on its performance evaluation and remuneration benefits. It began to receive responses. But, well, as you see, they only pay attention when it is made an evaluation criterion.
How many SOE commissioner positions can be allowed for dual role?
A really great candidate should be measured from his or her performance and competency. With him or her holding many roles, is the SOE’s performance getting better? For example, have the profits or dividends increased? If so, please do hold more than one but on a single salary as from the information I got, some commissioners don’t even hold quarterly meetings, (laughs).
What about the latest communication with SOEs Minister Erick Thohir regarding evaluation of the SOE commissioner recruitment process?
SOEs Minister did ask to clarify the data. He also asked for input regarding necessary regulation changes and what they look like.
The previous Ombudsman board focused largely on economic, financial and banking issues. What about your board?
Our priority is economic development issues because that is the government’s pressure point.
The indicator that we want to look at is whether economic development activities are in tune with improvement of public services. When the construction of toll roads and infrastructure intensified, the Ombudsman received many reports surrounding land issues. The next aspect is labor issues. Many people lost their jobs in traditional sectors such as farming and plantation. Another aspect that became our priority is public health care services. Given the pandemic, we will look at how the government changed the speed of services at community health centers, hospitals, pharmacies which are very strategically linked to BPJS Kesehatan and BPJS Ketenagakerjaan (the state social security agencies for health care and labor).
Previous chair, Amzulian Rifai, said that the Ombudsman is usually established in countries with more mature bureaucracies. With the agency’s current model, are you satisfied with Ombudsman’s authority?
If you ask if it’s enough, it certainly isn’t. But as the saying goes, when you are given lemons, make lemonade. Many people think there are grey areas in our authority and power. They don’t take our advice and recommendations in a legal context although our advice and recommendations are legal products and have legal implications. We advise public officials who are bound by oath, rules, ethics and discipline. When they don’t comply with our advice, they violate their oath and promises. In my opinion, it is already a criminal act.
Does the Ombudsman need authority similar to that of Control Yuan Taiwan which is the fourth branch of the government after the legislative, executive and judicial powers, and can suspend the head of state?
Indeed, our weakness is in our institutional power. We are given the authority to oversee public services in the central till the regions but we don’t have adequate institutional resources. Our presence is still limited at the central and with representation (in the regions). Our representation in one of the provinces which administers 35 regencies and municipalities have less than 25 employees. The same applies to other regions.
Ombudsman Chairman Mokh Najih giving a public lecture at the Muhammadiyah University of Aceh. UNMUHA Public Relations
Will Ombudsman’s oversight be more effective if its institutional power is expanded to the regency and municipality levels?
We are currently preparing a business framework to strengthen Ombudsman’s position, among others, via a proposal to amend Law No. 37/2008. Actually, the previous leadership had proposed it to the House of Representatives (DPR) and it is in the national legislative program but not as a priority. It’s at the 130-ish position. We will use an assessment to strengthen our argument as to why it should be a priority.
What will be assessed to change it?
First, from the institutional aspect. The Ombudsman can be reinforced up to the regency and city levels. Second, from the organizational aspect, we have only one echelon I position, that is the secretariat-general, meaning our organization is still small, it’s different from, for instance, the KPK which has four deputies. Developing the organization will facilitate more solid policy-making and for sure better budget support.
Does Ombudsman’s authority need to be bolstered?
If this is just a supervisory institution, I think it is already enough. But we are trying to add a preventive authority.
What does a concrete action look like?
An early detection like we did in the rice import case some time ago.
President Jokowi said there were still rigid bureaucracies in public services and called for improvement. How will the Ombudsman help tackle this problem?
Indeed, our bureaucracy still adheres to the ‘bumbledom’ culture or the culture of entitlement. Once they are elected, instead of serving the public, public officials want to be served. The Ombudsman has brought on some influence by changing this culture towards a service culture. Several regional and ministerial institutions which have good interactions with the Ombudsman have unveiled corruption-free areas, as well as clean and service bureaucracy areas. They asked us to act as their consultants. This shows that they have begun to appreciate Ombudsman’s role in giving positive influence towards bureaucratic reforms.
Can this influence be amplified to all ministries and state institutions?
If we want a comprehensive change, I’m sure the administrative and bureaucratic reform ministry’s program for bureaucratic reform can serve as a guideline. It named Ombudsman’s evaluation result as one of the indicators for ministries’ performances. In 2022, the Ombudsman will issue Ombudsman’s opinion, an evaluation of public service compliance.
What is the concept like?
Ombudsman’s jobs and mandate are spelled out in Law No. 25/2009 regarding public services. One of the preventive measures is to issue Ombudsman’s opinion using a scoring system, we already have it but it’s still too broad. We assess up to regency level and categorize green, yellow and red zones. The red status will influence a given region’s performance benefits. We will also issue a public service perception index. We hope these two assessments will bring improvement to public services and enlarge our preventive function.
MOKHAMMAD NAJIH | Place and Date of Birth: Lamongan, East Java, May 17, 1965 | Education: Bachelor of Law, Brawijaya University, Malang, East Java (1989); Master of Law, Diponegoro University, Semarang (1999); Ph.D. in Political Law, University Kebangsaan Malaysia (2014) | Career: Lecturer, Faculty of Law, University of Muhammadiyah Malang (UMM) (1990-2021), Dean, Faculty of Law, UMM (2001-2005), Head, Legal Aid and Consultation Body, UMM (2013-2014), Special Staffer for Legal Affairs, UMM (2014-2015), Chairman of Post-graduate Master of Law Study Program, UMM (2015-2021), Chair, Association of Indonesian Muhammadiyah Higher Education Law Studies Programs (2017-present), Member, Criminal Law Society and Criminology | Awards: Satyalancana Karya Satya for 10 years (2006), Satyalancana Karya Satya for 20 years (2016)