Jack Wiston, G.D.L., L.P.C
Indonesia’s Constitutional Court (Mahkamah Konstitusi – “MK”) recently handed down Decision No. 21/PUU-XXIII/2025 (“Decision 21/2025”) in response to a petition for a formal judicial review of Law No. 39 of 2008 on State Ministries, as amended by Law No. 61 of 2024 (collectively referred to as “Law 39/2008”). The petition was originally filed on 26 February 2025 by an individual petitioner (“Petitioner”).[1]
The Petitioner had specifically requested a judicial review of Article 23 of Law 39/2008, which prohibits state ministers (“Ministers”) from simultaneously occupying other positions as state officials, members of Boards of Commissioners (“BoC”) or Boards of Directors (“BoD”) of State-Owned Enterprises (Badan Usaha Milik Negara – “BUMN”) or private companies, or leaders in organizations funded through state/regional budgets.[2] The Petitioner had argued that this article contradicted Article 1 (3), Article 17, Article 27 (1) and Article 28D (3) of the 1945 Constitution of the Republic of Indonesia (“1945 Constitution”).[3]
In their petition, the Petitioner requested that the MK declare that the term “Minister”, as featured under Article 23 of Law 39/2008, was inconsistent with the 1945 Constitution and therefore had no binding legal force unless interpreted to include both “Ministers and Vice-Ministers”. Accordingly, the Petitioner argued that Article 23 of Law 39/2008 should be read as, “Ministers and Vice-Ministers are prohibited from occupying concurrent positions.”[4]
Ultimately, the MK ruled that the petition was inadmissible (tidak dapat diterima) due to the fact that the Petitioner had already passed away and that, as a result, the cumulative requirements that have to be met in order to establish a constitutional loss, which are essential to demonstrating a given petitioner’s legal standing, had not been fulfilled.[5] However, the MK ultimately still provided a number of noteworthy legal considerations in its decision, including references to the previous ruling of Decision of the MK No. 80/PUU-XVII/2019 (“Decision 80/2019”), which also resulted from an examination of Article 23 of Law 39/2008.[6]
Although the MK ultimately rejected the two petitions before handing down both Decision 21/2025 and Decision 80/2019, it is important to note that the MK’s legal considerations remain an integral part of these rulings. In this regard, and given the significant implications of Decision 21/2025 in terms of the prohibition on Ministers and Vice-Ministers occupying multiple positions, this edition of Indonesian Legal Brief (ILB) offers a detailed analysis of the latest ruling through a specific focus on the following key issues:
- Prohibition on the Occupying of Dual Offices by Vice-Ministers; and
- Potential Conflicts of Interest.
Prohibition on the Occupying of Dual Offices by Vice-Ministers
Under Decision 21/2025, the Petitioner argued that, according to Regulation of the President No. 140 of 2024 on the Organization of State Ministries (“Regulation 140/2024”), the role of Vice-Minister is explicitly referred to as part of a “single leadership unit” alongside the relevant Minister.[7] Therefore, the two positions should not be considered as separate within state ministries, ultimately meaning that provisions featured under Article 23 of Law 39/2008 that prohibit Ministers from occupying any dual offices should also apply to Vice-Ministers.
Furthermore, the Petitioner highlighted that previously, Decision 80/2019 had clearly affirmed that Vice-Ministers were prohibited from occupying any concurrent positions as BoC and/or supervisory board members in BUMN.[8] However, in the legal considerations featured under Decision 80/2019, the MK emphasized that the absence of any provision that explicitly prohibited Vice-Ministers from occupying multiple positions has allowed them to serve concurrently as BoD or BoC members in both BUMN and private companies.[9]
The Petitioner also emphasized that the prohibition on the occupying of dual offices was in line with provisions originally set out under Law No. 19 of 2003 on BUMN, as most recently amended by Law No. 1 of 2025 (collectively referred to as “Law 19/2003”), which clearly prohibit BoC members from occupying any other positions in accordance with prevailing Laws and Regulations.[10]
Based on the facts presented, the MK asserted that Vice-Ministers should be treated as state officials, just as Ministers are. Consequently, all prohibitions on the occupying of dual positions by Ministers, as outlined under Article 23 of Law 39/2008, also apply to Vice-Ministers.[11]
This provision should hopefully ensure that Vice-Ministers remain focused on carrying out their specific duties and responsibilities within their respective ministries, i.e. duties that form the primary rationale for their appointments. The MK also reaffirmed the prohibition on Vice-Ministers occupying concurrent positions as commissioners in both BUMN and private companies.[12]
Potential Conflicts of Interest
As outlined above, both of the discussed judicial review petitions are closely linked to the issue of occupying dual offices and the potential for conflicts of interest to emerge in this regard. Although both cases ultimately ended in rulings that declared the petitions inadmissible,[13] the MK has nevertheless established a key legal principle, namely that the prohibition on Ministers occupying concurrent positions (e.g. as commissioners or directors in BUMN) also applies to Vice-Ministers.[14]
The Petitioner also outlined several negative consequences that could result if Vice-Ministers were permitted to occupy multiple positions (e.g. abuses of power, conflicts of interest, unfair competition and discriminatory practices).[15] In this regard, the occupying of dual offices by government ministers can distort market competition and foster monopolistic behavior, which is the reason why such practices are prohibited in several countries. For example, under the Clayton Act, the United States prohibits any individual from simultaneously serving as a director or officer in two competing companies.[16]
However, despite the legal considerations set out under Decision 80/2019 that explicitly prohibit Vice-Ministers from occupying any dual roles, the government has yet to implement this principle in practice. Indeed, several Vice-Ministers in the Indonesian Government are reportedly still serving as commissioners for BUMN.[17]
One reason cited for this non-compliance is the argument that the verdict (amar putusan) of the ruling has declared the petition inadmissible due to issues with its legal standing and has therefore not formally declared the relevant provisions unconstitutional. However, a proper reading of this latest decision requires not only an examination of the ruling itself but should also take into account the MK’s ratio decidendi (i.e. its legal considerations), which form an integral part of the ruling.[18]
Key Takeaways
Although the MK ultimately declared the recent petition inadmissible in its handing down of Decision 21/2025 due to the death of the Petitioner, it also reaffirmed that Vice-Ministers are state officials and are thus subject to the same prohibition on the occupying of dual offices as Ministers are under Article 23 of Law 39/2008. The MK’s reasoning highlights that concurrent positions (e.g. BUMN commissioners or directors) pose a risk of conflicts of interest emerging and undermine good governance. However, despite this reasoning, non-compliance within the executive branch of government persists. However, in this regard, it should be noted that legal considerations (ratio decidendi), although not in the ruling’s operative section, remain binding in relation to interpretations of constitutional principles.