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The Indonesian General Election and the “Weak” Constitutional Court

Stefanus Hendrianto, Santa Clara University

May 2014 was quite a month in Indonesian constitutional politics. On May 19th, 2014, the Indonesian Constitutional Court stripped out its own authority to review regional election disputes involving heads of government. On the following day, the General Election Commission closed the nomination for the 2014 presidential election. After weeks of speculation, there were only two candidates who managed to register for the presidential race on July 9, 2014; the Governor of Jakarta, Joko Widodo, and a former Special Forces general, Prabowo Subianto. On the surface, these two events are not correlated; however, underneath the sea of Indonesian politics, there is a reciprocal relationship between the Constitutional Court and the 2014 General Election.

How should we understand this relationship? In the last six months, the Court has reviewed two major cases related to General Election regulations. These decisions have dealt with the two-horse presidential race between a non- establishment figure, Joko Widodo, and a former general with a dubious human-rights record and a former son in law of the late dictator General Soeharto, Prabowo Subianto . Moreover, these cases provided the Court an opportunity to reevaluate its role within the Indonesian constitutional realm, which eventually led the Court to remove regional election disputes from its docket.

  1. The Presidential Election Cases and the Turn Towards Self-Restraint

For a better understanding of this reciprocal relationship, let us trace back the Court’s decisions of the past six months. On January 23, 2014, the Court announced its decision on the judicial review of the Presidential Election Law. The Court ruled that presidential election and legislative elections must be held concurrently starting in the 2019 General Election. According to the Presidential Election Law, a presidential candidate shall be nominated by a political party or a coalition of political parties who hold at least 20 % seats in the House of Representative or obtain at least 25 % of the popular vote in the legislative election. The Law as currently written also states that the legislative and presidential elections must be held at least three months apart. Under these conditions, the likelihood is that only a few big parties will be able to nominate a presidential candidate. Moreover, political parties cannot nominate a candidate until they find out the official result of the legislative election.

On January 10, 2013, a political activist, Effendi Ghazali, challenged the Presidential Election Law no. 42 of 2008, which prescribed two separate election schedules for legislative and presidential elections. First, Ghazali argued that the current election mechanism has subverted the presidential system.  His concern was that a coalition of political parties that nominates a president will have too much leverage over a president elect. In other words, Ghazali argued that a president elect could be held hostage by the interest of a coalition of political parties that support his nomination.

Second, Ghazali argued that the Law had infringed upon his voting rights. Ghazali referred to his personal experience in the 2004 General Election. At that time, he was doing his doctoral research in the city of Nijmegen, Netherlands. Ghazali went back to Indonesia to cast his vote for the legislative election on April 5, 2004. Ghazali, however, could not cast his vote for the Presidential Election on July 5, 2004 because he had to go back to Netherlands earlier. Ghazali posited that his voting rights had been deprived by the Law that set two separate election schedules.[i]

The Court finished its deliberation meeting on March 26, 2013; nevertheless, it took more than a year for the Court to announce its decision. The Deputy Chief Justice, Arief Hidayat, explained that the reason for the delay is that the Court was being prudent due to the politically-sensitive nature of the case. One plausible explanation for the delay is that the Court’s docket has been overloaded, especially with regional election disputes. In the last six years, the Court has received an average of 130 regional election disputes per year. As the Justices have succumbed to regional election disputes, the Court has had to delay its ruling on statutory review cases. Thus, this is not the first time that the Court has delayed its judgment in an important statutory review case.[ii]

The other factor contributing to the delay is the tumultuous leadership transition in the past year. On April 1, 2013, a week after the Court finished its deliberation meeting, the then-Chief Justice Mohammad Mahfud resigned from the Court.[iii] Following Mahfud’s resignation, the Court elected Akil Mochtar as the new Chief Justice. After five months in the office, Chief Justice Mochtar had to resign in disgrace after the Corruption Eradication Commission (Komisi Pemberantasan Korupsi – KPK) arrested him for alleged bribery.[iv] The arrest of Chief Justice Mochtar has crippled the Court in many ways and plausibly contributed to the delay of the announcement of the Court’s decision.

In its decision, which was announced on January 23, 2014, the Court concurred with the claimant that a president elect could be held hostage to the interest of political parties that nominated him. As the Court stated: “In the last two presidential elections (2004 and 2009), which occurred after the legislative election, a presidential candidate had to offer political compromises in order to secure his nomination.” The Court agreed with the claimant that such political compromises will give political parties too much leverage over a president elect, and, consequently, will undermine the presidential system. The Court ruled that the legislative election and presidential election should be held simultaneously.

Many people hoped that the decision would be applied to the 2014 general election; however, the Court ruled that the decision would only be applied in the 2019 general election. The Court held that the decision cannot be applied right away because it would be likely to disrupt 2014 General Election preparations. Scholars who study the Indonesian Constitutional Court have long noted that theCourt often renders declaratory relief without any further remedy for the claimant’s injury. In this case, the Court’s decision did not aim to redress the claimant’s injury on the violation of his voting rights, but only issued a declaratory judgment, which declared that the presidential election and legislative election shall be held simultaneously in the future.

On March 20, 2014, the Court issued a new decision that primarily addresses the issue of the legislative vote threshold for presidential candidates, the other major issue in the General Election Law. The claimant was Yusril Ihza Mahendra, a seasoned politician and constitutional law professor. In the past, Mahendra had scored many victories in the Constitutional Court and many people were expecting him to score another victory in the presidential threshold case.[v] Mahendra launched the challenge to enable him to run for president on his party’s ticket, the Star and Crescent Party. On December 8, 2013, Mahendra announced his candidacy for the presidency despite his party having no seats in the current House and little prospect of fulfilling either the seat or popular vote threshold in the 2014 legislative election.

In his petition, Mahendra postulated that the Constitution does not specify any threshold for the presidential election. Mahendra referred to article 6(2) of the Constitution, which states, “each ticket of presidential candidates shall be proposed prior to the holding of general elections by political parties or coalitions of political parties which are participants in the general elections.” Mahendra asserted that there are 12 political parties in the 2014 election, and, therefore, he urged the Court to declare that all of these parties have the right to nominate their candidates for president. The Court considered that Mahendra had requested the Court to issue an advisory opinion in regards to the meaning of article 6(2) of the Constitution. The Court made a distinction between a declaratory judgment and an advisory opinion; the former aims to resolve concrete controversies and the latter does not. The Court held that it had no authority to issue an advisory opinion, and thus that it could not grant Mahendra’s petition.

The Court’s decision signaled that it was on the verge of abandoning its old approach. In the past ten years, the Court has not been reluctant to issue opinions in similar cases. An apt example was the Court’s decision that resolved the conflict between the National Police Department and the Anti-Corruption Commission in 2009. The conflict arose when the Anti-Corruption Commission managed to wiretap one high-ranking police official, on the suspicion that the official was taking bribes. The Indonesian National Police then took vengeance and moved to incriminate two commissioners, alleging that they abused their power. The Law stated that the commissioners must be removed once they are indicted. Both of the Commissioners, Chandra Hamzah and Bibit Riyanto, challenged the law that could cause their removal from the Commission. The Court held that the law should be interpreted in a different way: that the commissioners could only be removed after a court has found them guilty of a crime. Obviously, the Court’s interpretation is a kind of advisory opinion. The Court’s decision was limited to pronouncing on an interpretation of a statute and it did not stop the criminal proceeding against the two commissioners.

One plausible explanation for the Court’s new approach is the appointment of the new Chief Justice Hamdan Zoelva. Chief Justice Zolva took over the helm of the Constitutional Court after the arrest of Chief Justice Akil Mochtar in October 2013. Zoelva is a young politician from the Star and Crescent party. His appointment as the Chief Justice makes him the second politician to take on the role. His predecessor Akil Mochtar was previously with Golkar, the former ruling party under the military dictatorship. Meanwhile, the first two Chief Justices, Jimly Asshiddiqie and Muhammad Mahfud, were constitutional law professors. Both Asshiddiqie and Mahfud are known for their maverick leadership style. In contrast, as a member of the House, Zoelva shared a similar view with his cohorts on the proper role of the Court: that the Court should play a minimal role in politically-charged cases. As the Chief Justice, Zoelva might continue to see the Court in this light.

  1. Continued Restraint in the Regional Election Case

Obviously, the Court’s recent decisions demonstrate judicial restraint. The Court continues its advocacy for judicial restraint in the recent Regional Election Dispute case. The case originated from a claim made by a group of NGOs, chiefly led by the Law and Constitutional Assessment Forum (Forum Kajian Hukum dan Konstitutsi). The claimants posited that the Constitution only equips the Court with authority to handle national election disputes and not regional election disputes. Based on this presupposition, the Claimant concluded that the Court’s authority to handle regional election disputes is unconstitutional.

The claimants also put forward a claim that the Court has shifted their energy and resources to handling the regional election disputes instead of statutory review. According to the claimants, the Court’s new priority has caused immediate harm to them because it lessened their ability to bring successful statutory review cases. Obviously, the nature of the claim was very abstract, and the petitioners were basically just asking the Court to reevaluate its own authority to handle regional election disputes.

The Court’s majority sustained the claimant’s petition and held that the drafters of the Constitution never intended to include the election of the Governor and the head of district (Bupati) within the textual phrase “general election.” The Court ruled that the drafters only intended to include the presidential election and the legislative election, including the members of the national parliament and the regional parliament. The Court thus held that many regional election disputes are not within the scope of its authority.

This case marked the second time in less than a year that the Zoelva Court had minimized its role in constitutional politics. The Zoelva Court’s approach is quite a contrast to both the Assidhiddiqie Court and the Mahfud Court.  Six years ago, the then Chief Justice Asshiddiqie lobbied the House to expand the Court’s authority to handle regional election disputes, including elections for Governor and Head of District (Bupati). In April 2008, the House enacted a law expanding the Court’s authority. Asshiddiqie did not have to deal with the influx of the regional election disputes because he resigned from the Court in October 2008. His successor, Mohammad Mahfud led the Court to handle these disputes. Despite the flood of cases, the Mahfud Court continued to broaden the scope of the Court’s authority. Initially, the Law prescribed that the object of adjudication could only concern the final result of the regional election. The Mahfud Court, however, went further to review any infringement upon regional election processes, including both administrative and criminal infringement.

The Zoelva Court understood that the regional election dispute has created a tremendous burden for the institution. The Court has been overwhelmed with the regional election disputes on top of a recent influx in statutory review cases. From 2003 through 2008, the Court only received an average of 25 statutory review cases per year; however, since 2008 the Court has received an average of 80 statutory review cases per year. In addition, the Court must also handle a large number of national legislative election disputes every five year. In the recent 2014 legislative election, the Court received 767 national legislative election disputes.

The Zoelva Court is also fully aware that the Court’s reputation has been tarnished by many scandals that originated from regional election disputes. An apparent example is the arrest of Chief Justice Akil Mochtar for taking bribes while he handled a regional election dispute for the Head District (Bupati) of Gunung Mas in Central Kalimantan. After the arrest of Chief Justice Mochtar, many constitutional stakeholders began to urge the President and the House to reevaluate the Court’s authority to handle these disputes. Nonetheless, neither the President nor the House took any step to address the issue. The Zoelva Court thus took the issue into its own hands and decided to remove regional election dispute from its docket.

  1. The Link Between Judicial Self-Restraint and Presidential Politics in Indonesia

On the same day the Court issued this decision, Joko Widodo declared former vice president Jusuf Kalla as his running mate in the next presidential election. His arch rival, Prabowo Subianto, has chosen to team up with the Chief Economic Minister, Hatta Rajasa, whose daughter is married to a son of the outgoing President, Susilo Bambang Yudhoyono. Only two candidates will contest the presidential election because no political party reached the threshold in the 2014 legislative elections. The Indonesian Democratic Party of Struggle (PDI-P) garnered the highest total with just 18.95 % of the popular vote (19.46 % of seats). This is hardly a win; the fact of the matter is the PDI-P has no significant lead over the runner up, Golkar, at 14.75 % (16.25% of seats) and the third place finisher, Gerindra, at 11.75 % (i.e. 13.04% of seats).

The failure of any political parties to get near 25 % of the popular vote has forced the three top finishers to seek coalition partners to nominate their own candidate. The PDIP quickly built a coalition with the National Democrat Party (NasDem), which was founded by Suryah Paloh, a media baron and a renegade from the Golkar party. Later on, the PDI-P also secured some support from the National Awakening Party (PKB) and the People Conscience Party (Hanura). This coalition combined 39.97 % of the popular vote and nominated Joko Widodo as a presidential candidate. The third place finisher, Gerindra, pulled together a coalition with some Islamist based parties: the United Development Party (PPP), the Prosperous and Justice Party (PKS), and the National Mandate Party (PAN). With a combined vote of 32.72 %, this coalition nominated the founder of Gerindra, Prabowo Subianto, as their presidential candidate. In the meantime, the runner-up Golkar party failed to find a coalition partner and decided to support the nomination of Prabowo Subianto.

The result of the legislative election also shattered the presidential ambition of the former Chief Justice Muhammad Mahfud. When Mahfud resigned from the Court last year, there were rumors that his resignation was part of his bigger plan to run for president in the 2014 election. Indeed, the National Awakening Party (PKB) had considered him as a potential candidate for president. Unfortunately, the National Awakening Party (PKB) only garnered 9.04 % of popular vote (i.e. 8.39 % of seats), which is far below the presidential threshold.  Having realized that it would not be able to nominate Mahfud as president, the National Awakening Party (PKB) decided to join the coalition that nominated Joko Widodo as president. In a dramatic turn, Mahfud decided to support Prabowo Subianto, and, furthermore, he accepted an offer to become the head of Subianto’s election campaign.

Some local pollsters have predicted that Widodo is clearly ahead in the presidential election race. Nevertheless, Subianto still retains a reasonable chance of winning. Whoever comes out as the winner of the presidential election on July 9, 2014 will less likely have to deal with a defiant court. The Indonesian Constitutional Court has turned towards judicial restraint and does not seem interested in a tug of war with the next president.

Suggested Citation: Stefanus Hendrianto, The Indonesian General Election and the “Weak” Constitutional Court, Int’l J. Const. L. Blog, June 4, 2014, available at: http://www.iconnectblog.com/2014/06/the-indonesian-general-election-and-the-weak-constitutional-court

 

[i] If one reviews the case closely, there is a mismatch between the challenged statute and the injury claimed. On the one hand, Ghazali invoked an injury that was caused by the 2004 presidential election process, which was based on Law no. 23 of 2003 on the Presidential Election. On the other hand, he challenged the Law no. 42 of 2008 on the Presidential Election, which was enacted by the House in 2008. Thus, the challenged statute did not cause any immediate harm to Ghazali’s voting rights.

[ii] Melissa Crouch, Indonesian Constitutional Court Rejects Blasphemy Law Case, Int’l J. Const. L. Blog, Oct. 23, 2013, available at: http://www.iconnectblog.com/2013/10/indonesian-constitutional-court-rejects-blasphemy-law-case

[iii] Stefanus Hendrianto, Leadership Shakeup at Indonesia’s Constitutional Court, April 7, 2013, available at: http://www.iconnectblog.com/2013/04/leadership-shake-up-at-the-indonesian-constitutional-court

[iv] Stefanus Hendrianto, The Indonesian Constitutional Court at a Tipping Point, Int’l J. Const. L. Blog, October 3, 2013, available at: http://www.iconnectblog.com/2013/10/the-indonesian-constitutional-court-at-a-tipping-point

[v] Stefanus Hendrianto, The First Ten Years of the Indonesian Constitutional Court: The Unexpected Insurance Role, IConnectBlog, August 25, 2013, available at: http://www.iconnectblog.com/2013/08/the-first-ten-years-of-the-indonesian-constitutional-court-the-unexpected-insurance-role/

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Published on June 4, 2014
Author:          Filed under: Analysis
 

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