Justifying a Political Dynasty

The Indonesian Constitutional Court is one of the great judicial institutions in Asia. It has been lauded for its pivotal role in consolidating democracy, helping transform a once violence-prone polity into the most stable democracy in Southeast Asia. While some scholars contend that the constitutional justices generally remained independent in the first fifteen years of the Court’s operation, in recent years, there have been clear indications that the Court’s independence is under attack and its justices are being politicised. The House of Representatives’ decision to replace Deputy Chief Justice Aswanto with Justice Guntur Hamzah in September 2022 for not representing its interest is a case in point of the legislature’s interference with the independence of the Court. Earlier in the same year, the Court found itself entangled in a conflict of interest as its current chief justice, Anwar Usman, married President Joko Widodo’s (more commonly known as President Jokowi) younger sister, Idayati.

On 16 October 2023, the Indonesian Constitutional Court handed down a decision (Constitutional Court Decision No 90/PUU-XXI/2023) on the minimum age requirement for presidential candidacy. The decision is highly controversial and raises further alarms about the Court’s independence as the petitioner sought to allow President Jokowi’s son, Gibran Rakabuming Raka, the 36-year-old current mayor of Surakarta, to run in the 2024 presidential elections. In a tight 5-4 ruling, the Court declared that the requirement that a presidential or vice-presidential candidate “be at least 40 years of age” under Article 169q of Law No 7 of 2017 on General Elections was unconstitutional, unless it was to be read and interpreted: “be at least 40 years of age or have held/are currently holding positions elected through general elections including regional head elections.” Following the Court’s judgement, with the support of a big coalition of political parties, Prabowo Subianto announced Gibran as his running mate in the 2024 presidential elections. Prabowo is the current Indonesian Minister of Defence and a former lieutenant general of the Indonesian army who has participated in presidential elections three times (2009, 2014, 2019), but has yet to be successful.

From a legal-doctrinal perspective, the Court’s decision is problematic. The Indonesian Constitutional Court has taken on the legislature’s function by introducing a new criterion to bypass the age requirement for the upcoming 2024 presidential elections. Even if one were to agree with the Court’s majority that, in certain circumstances, the Court can and should take the role of a positive legislator, the reasoning provided by Court’s majority in this case was insufficient to justify such a move.

The Petition’s Arguments

The case was brought up by a university law student in Surakarta named Almas Tsaqibbirru. As is the case in Indonesia, judicial review of legislation can be filed directly by individuals and private entities without having to initiate it in an ordinary court, provided that they have the standing as laid out under Article 51 of the 2003 Constitutional Court Law. Tsaqibbirru was an admirer of Gibran, to whom he attributed the economic growth of 6% in Surakarta since he took the office in 2021 [at 15].

Tsaqibirru contested the minimum age requirement of 40 for presidential candidacy. He did not seek a declaration that the age requirement was unconstitutional, nor did he request the Court to lower it. Instead, he asked the Court to declare Article 169q unconstitutional unless it was to be interpreted with the additional phrase “or having an experience as the head of regional government both at the provincial or municipal/regency level” [at 18-19]. In other words, the applicant asked the Court to introduce an alternative criterion to bypass the age requirement, allowing individuals to qualify if they had experience as the head of a local government.

Tsaqibbirru put forward two main arguments to support his application. First, he contended that Article 169q violated the morality principles because it discriminated against younger people by not giving them the same opportunity to be a presidential or vice-presidential candidate. Thus, the argument goes, it was inconsistent with Articles 27(1), 28D(1) and (3), and 28I(2) of the Indonesian Constitution [at 14-15]. Second, he argued that Article 169q resulted in a situation that he deemed “an intolerable injustice”. He defined an intolerable injustice as a situation where people were compelled to vote for candidates whose age was predetermined by Article 169q, i.e., at least 40 years old. For Tsaqibbirru, it seemed intolerably unjust that an ideal character that he had in mind, who should become a leader of the country, namely Gibran, the current mayor of Surakarta and son of President Jokowi, could not be eligible for candidacy because of his age [at 14 and 17].

The Court’s Reasoning

In reviewing the constitutionality of Article 169q, the majority of the Court first addressed the concept of open legal policy. In Indonesian constitutional law, open legal policy refers to laws that fall exclusively under the authority of the legislature. Certain matters fall within the ambit of the open legal policy if (i) they are not explicitly stated in the Constitution, or (ii) the Constitution mandates the lawmakers to make legislation on those certain matters without further details. In its judgement, the majority maintained that while determining the age requirement was an open legal policy and, thus, fell within the scope of the legislature’s powers, the Court still had the power to declare it unconstitutional provided that the policy satisfied the three pronged test to render it unconstitutional: (i) it violated the principles of morality, (ii) it infringed the principles of rationality and (iii) it resulted in an intolerable injustice.

The reasoning may not initially appear problematic, considering that the Court had introduced the test in its earlier decisions (for example, Constitutional Court Decisions No. 51-52-59/PUU-VI/2008 and No. 7/PUU-XI/2013). However, in this case, the majority failed to differentiate between a petition seeking to declare an open legal policy unconstitutional and a petition aiming to create a new legal rule within an existing legal provision. By not dismissing Tsaqibirru’s petition on the basis of the Court’s lacking jurisdiction to create new norms, the majority was willing to engage in judicial activism. This activism took the form of assuming the role of the elected legislature as the majority ultimately introduced a new legal rule within the legal provision: creating an exception to the presidential age requirement.

The majority’s reasoning, thus, runs counter to the Kelsenian idea that a constitutional court operates as a negative legislator, a concept widely accepted and applied in Indonesia. As the Court declared itself in various cases (for instance, Constitutional Court Decisions No. 132/PUU-XIII/2015 at 49 and 46/PUU-XIV/2016 at 444-445):

“The Constitutional Court was established with the intention of serving as a negative legislator. It means that the Constitutional Court can only invalidate laws and cannot assume the legislative authority to create laws or regulations.”

In 2018, when the Court declared that the minimum age requirement of 16 years for girls to marry was unconstitutional for being discriminatory and enabling child marriage, it refrained from establishing a new legal rule. Instead, it left the responsibility to the lawmakers to amend the 1974 Marriage Law. Setting aside these considerations for now, one important question remains: did the Court provide adequate reasoning to justify its taking the role as a positive legislator?

The majority did not directly address whether Article 169q violated the principles of (i) morality, (ii) rationality and (iii) led to an intolerable injustice, which was a necessary condition for declaring an open legal policy unconstitutional. Instead, after showing that more than 32 countries around the world require presidential candidates to be at least 35 years old, and previous Indonesian experiences allowed individuals under forty, it somewhat surprisingly suggested that the law should incorporate an alternative criterion to replace the minimum age requirement, and this should be: “individuals who have been elected through general elections (such as majors and governors), as they have demonstrated that they have gained the trust of the public” [at 39-49].

For the majority, holding an elected political position such as mayor and governor seems sufficient to replace the age requirement. The majority viewed that being elected democratically through a general election was a determining factor for presidential candidacy because the majority saw those elected as “having minimum degree of maturity and experience” [at 50]. This should be questioned. Being elected democratically as a mayor or a governor does not have any correlation with presidential elections. Further, being elected through a general election does not guarantee that a candidate has the capabilities and understands the responsibilities expected of elected individuals. Indonesian Corruption Watch, for example, reported that from 2010 to 2018, 253 heads of regional government were declared as suspects in corruption cases.

In principle, the majority did not explicitly mention that Article 169q violated the morality principles. It even stated that the age requirement of forty was not inconsistent with the rationality principles. It did, however, acknowledge that such a provision potentially disadvantaged a younger generation capable of being leaders. But instead of lowering the age requirement, the majority made the following observation [at 50]:

“The minimum age requirement of 40 years of age for presidential and vice-presidential candidates is, in and of itself, a manifestation of treatment that lacks proportionality, ultimately leading to the revelation of intolerable injustice. The intolerable injustice here lies in the fact that the provision does not only disadvantage, but also it eliminates the opportunities for young leaders who demonstrate that they have previously earned the trust of voters, such as in regional elections.”

It is inappropriate and misguided to apply the concept of intolerable injustice in this way. The observation above seems to indicate that the majority may not fully grasp the essence of what constitutes a situation that is intolerably unjust. Of course, one might be willing to accept the view that not allowing individuals under forty to be a president is unfair. Still, it does not constitute an intolerable injustice. Because the right of persons under forty to participate as a presidential or vice-presidential candidate is not eliminated; they are simply required to wait until they reach the age of forty to be eligible for presidential elections. The concept of intolerable injustice would be much better suited to practices such as slavery and torture. In the Indonesian context, it would make more sense to use this concept to refer to the 1965 massacre rather than the age requirement for presidential candidacy.

Conclusion

In Tsaqibbirru, the Indonesian Constitutional Court has assumed the role of lawmakers, effectively legislating from the bench without sufficient justification. The reasoning that the majority provided to justify making a new legal rule did not satisfy the three-pronged test that the majority had proposed: that the age candidacy violated the principles of morality, rationality and led to an intolerable injustice. While this decision may find favour among many Indonesian political elites, it is, in fact, another great setback for Indonesian democracy and the rule of law. Indonesian democrats and the younger generation should not welcome the decision because it is only those elected through a general election, possibly because of the possession of wealth or familial ties to the elites, who are permitted by the Court to bypass the presidential age requirement.

This ruling has further eroded public confidence in the Court’s independence, especially since Chief Justice Anwar Usman was one of the five judges who granted the petition, enabling Gibran to seek the vice-presidency. In addition, the timing of the decision was oddly convenient, given that it was delivered on 16 October 2023 (only two months after the petition was lodged on 3 August 2023), just before the presidential candidate registration period from 19 to 25 October 2023 set by the General Elections Commission. Unfortunately, the same Court will examine future high-stakes political cases, including disputes over the results of the 2024 presidential elections. In a court case where President Jokowi’s family members, Gibran and Anwar Usman, will likely get involved directly both as a party and a judge, it is highly unlikely that the Indonesian Constitutional Court will be able to perform its role fairly and impartially.