12 September 2023

Justice-on-Demand at the Indonesian Constitutional Court?

Indonesia will have its and the world’s biggest one-day election in 2024. More than 200 million voters will go to the ballots to choose the next president and legislative members on 14 February, opening a fresh chapter for the nation’s leadership after a decade of President Joko Widodo’s rule. As news of the tough three-candidate race (unofficial as of yet, but the first such kind in decades) make everyday headlines, and rumours of a possible postponement or the devising of a constitutional amendment (to Article 7) to make way for a third term for the sitting president abound, pockets of the public have also become increasingly troubled by what the spectacle might mean to the state’s adherence to its 1945 Constitution.

Of further concern, in this respect, have been the recent back-to-back filings for judicial review of Law No. 7 of 2017 on General Elections (Election Law) in the Indonesian Constitutional Court’s (officially named Mahkamah Konstitusi). The Court’s rulings  might not only serve to change some fundamental rules of the electoral game but also impair the independence and integrity of the nation’s hailed landmark of its return to constitutional democracy.

An Unprecedented Series of Events

Indonesia’s Constitutional Court was established in 2003 as a new, separate institution to the Supreme Court due to popular distrust of the latter, given the corruption of the judiciary during President Suharto’s New Order Era that spanned between 1966 up to his resignation in 1998. The Court’s purpose is thus to ensure the protection of the Constitution and its sanctity to the furthest extent possible through an institution without a history of malfeasance and with sufficient independence from the executive. Just a few years ago before news of transgressions became more habitual, the Court had been able to live up to its credence particularly by taking into account public opinion in deciding on cases.

However, the recent and unprecedented amount of judicial review petitions (numbering 23 just this far into the year) concerning rudimentary clauses within the Election Law constitutes a worrying development that might have wide-ranging consequences for the public’s perception of the Court’s independence. Thus, the Court has received challenges to the constitutionality of provisions related to campaign and voting mechanisms as well as candidate requirements. The Court’s rulings on these matters have arguably more wide-ranging consequences for the conduct of Indonesia’s elections than those it issued during the 2019 cycle, which included rulings on the simultaneity of the presidential and legislative elections as well as tallying procedures.

Despite the fact that the Court is empowered to judicially review provisions of the Election Law as per Article 24C(1) of the Constitution, the three cases together raise legitimate reservations over its partaking in politics. While the petitioners – notably including the Indonesian Solidarity Party (PSI), a relatively new party which is a fanatic of President Widodo, and the Change Movement Party of Indonesia (Garuda Party) which recently announced its support for Minister Subinato (who would most likely be running with the President’s son, Gibran) – have used the appropriate channel thus far, it is nonetheless worrisome that the Court’s docket is filled with petitions that are clearly designed to change certain ground rules of Indonesia’s electoral law just months ahead of the election.

The first of these noteworthy cases concerned the open-list proportional voting system that is used for electing Parliament members. The Court’s ruling to maintain the existing mechanism gained mixed responses from the public, with the prepotent party, the Indonesian Democratic Party of Struggle (PDIP), showing disagreement as the only supporter of a closed-list proportional voting system among other fractions at the Parliament. Notwithstanding the Party’s argumentation that a closed-list system would enforce better accountability to parties, the Court rightly weighed its downsides, primarily on the probability of nepotism that could lie underneath the guise of eminence or expertise.

The Court then ruled to partially grant the petition on the usage of certain sites for campaigning. It prescribed an interpretation to Article 280 paragraph (1) letter h of the Election Law whereby now, campuses and government institutions can be used as places for campaigning as long as no campaigning attributes (e.g. party banners, souvenirs) are used. Some university management boards welcomed the ruling as they saw it as a useful means of political education. Conversely, others worry about its potential repercussions that include increased polarisation and the instrumentalisation of political education as a means to garner support for certain candidates. Moreover, the decision has been criticised for widening the campaign arena by including what used to be considered neutral grounds. Some argue that this amounts to changing the rules of the election game.

The Court is currently in session to review the constitutionality of the minimum age limit for presidential and vice-presidential candidates, as provided in Article 169 of the Election Law, which is currently set at 40. This might be seen as the culmination of the cases to date due to the noticeable political manoeuvres by the President himself. As debates unfold regarding whether the requirement is an issue aligned with the Constitution, many believe that the case is meant to pave the way for President Widodo’s son, Gibran (who is 35), to run as vice president to Defence Minister Prabowo Subianto. If the Court declares the age limit unconstitutional, it could change both the country’s political trajectory and the people’s perception of the Court’s acclaimed integrity.

Courts without Confidence

A further worry in this respect is the well-known fact that the Court’s Chief Justice, Anwar Usman, is the President’s brother-in-law. While he was appointed years prior to him meeting the President’s sister, it raises questions regarding the independence of the Court, especially when petitions implicate the President personally. Gibran’s predicted run for vice president precisely constitutes such a scenario.

While Law No. 48 of 2009 on Judicial Authority (Judiciary Law) stipulates the neutrality and ethical conduct of judges in Articles 3 to 5, there is some ambiguity in Article 17(5) which stipulates that judges with potential conflicts of interest ought to be recused from a case. In particular, the word “judge” is defined as judges of the Supreme Court and the courts under it. The Constitutional Court, however, is a separate entity, independent from the Supreme Court structure. In line with this interpretation, Article 1 of the Judiciary Law also makes a distinction between judges and constitutional justices.

Though the Chief Justice might therefore not be legally required to recuse himself from the case, there is a real question whether he nonetheless should. Indonesia has suffered from declining levels of trust in state institutions, including the judiciary. Partiality and lack of non-interference by the executive and legislative branches is a consistent source of concern in this respect.

A recent example that involves the Court directly is the 2022 firing of Vice Chief Justice Aswanto. The Parliament’s rationale for his removal – that the Justice did not rule in their favour in numerous cases – did not conform with the fundamental principle of judicial independence. His replacement, Justice Guntur Hamzah, was subsequently found guilty of ethical misconduct for altering a verdict on his first day. Justice Arief Hidayat, who used to be the Chief Justice, was even involved in a lobbying scandal with the Parliament in 2017 when he asked for a term extension in exchange for favoured ruling on the contentious case that implicated the Corruption Eradication Commission.

These experiences are just the tip of the iceberg to show how those in different positions of power may either not know the mandates of their respective posts and the connection with other governmental entities, or that they actively make the conscious decisions to deviate from them. Against this backdrop, the Court should be hypervigilant to not only be acting independently and ethically in the cases it is currently ruling on but also ensure that it is seen as doing so.

The Direction Forward

This is not the first instance where the Court is put at the centre of a heated election discourse. Thus, the previous election in 2019 also saw an influx of challenges at the Court with 18 judicial reviews of the Election Law. It also saw the outcome of the election itself being disputed and litigated in front of the Constitutional Court. While the Court’s decision-making received widespread support back then, the episode still left the scar of a fragmented society. And it is clear that this time the Court does not appear to have the public’s faith on its side to the same degree, given the multiple transgressions of conduct by its members that have been revealed since. Against this backdrop, in the absence of strong merits and cogent reasoning, the Court’s rulings have the potential to further fracture an already-divided nation. Indeed, in rendering its decisions related to elections, the Court should keep in mind the country’s historically proven sensitivity on such topics. As it seems that the race has unofficially started earlier than expected, the Court sits at a predicament where its every move is now being held under public scrutiny. While the ruling on the age requirement is going to be the most significant to date it will likely only be the third to a longer series of important lawsuits, be it in the form of judicial review or election dispute settlement. The Court today bears the burden of proving its impartiality on electoral affairs. It should demonstrate to the Indonesian people that it is not a tool to be used in advancing political agenda.

SUGGESTED CITATION  Albar, Rafsi: Justice-on-Demand at the Indonesian Constitutional Court?, VerfBlog, 2023/9/12, https://verfassungsblog.de/justice-on-demand-at-the-indonesian-constitutional-court/, DOI: 10.17176/20230912-220842-0.

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