—Stefanus Hendrianto, Santa Clara Law
When Indonesia’s parliament passed a new law scrapping direct local elections on September 26, 2014, critics believed that the law was a setback for the world’s third-largest democracy. Many people have blamed the losing presidential candidate Prabowo Subianto and his Red-White opposition Coalition for pushing an agenda to get governors, heads of district (Bupati), and mayors to be elected by local parliaments. The law was passed just weeks before the Governor Joko Widodo is to be inaugurated as President on October 20. Some believe that the law represents a counter-attack from Subianto and his coalition partners against the president-elect, Joko Widodo. On the surface, the crisis looks like the battle between the traditional politicians and newly-empowered populist leaders like Joko Widodo. Many people, however, do not realize that the crisis is the product of a constitutional conundrum in Indonesia. Before we analyze the real issue behind the recent constitutional crisis, it is worth tracing the origin of the controversial Law no. 22/2014 on Regional Elections.
The Origin of the Controversy
Direct regional elections were introduced in 2005 as part of the democratic reforms that began after the fall of Suharto military regime. The Law No. 32/2004 on Regional Governance stipulated that governors, district heads (bupati) and mayors were to be elected by popular vote. The proponents of the law hoped that direct elections would minimize political corruption, as the regional parliament would no longer have authority to elect regional heads, and, therefore, they would not be able to extort money from candidates. Nevertheless, it soon became apparent that there were many flaws in the new direct regional election framework.
The law requires local candidates to be nominated by a party of a coalition of parties that earned at least 15 per cent of the vote in the recent local parliamentary election or controlled at least 15 per cent of the seats in the local parliaments. Under this framework, the political parties have considerable power to nominate a candidate and the party officials have made it clear that acquiring funds was a primary purpose behind the party’s choice of candidate. Consequently, candidates for Governor, district head (bupati) and mayors now have to foot massive tabs for their candidacy. With many winning candidates so heavily indebted after their victory, the position of regional head has turned out to be the key source of money to pay off their debts. Since the introduction of the direct regional elections, Indonesians have witnessed the larger patterns of governors, district heads and mayors being arrested for embezzlement of state money during their term in office. In early 2014, the Ministry of Home Affairs reported that more than 318 regional heads were detained and declared suspects in corruption cases.
The direct regional elections have also paved the way for the rise of political dynasties in regional politics. The combination of the high electoral threshold for nomination and massive costs to secure a candidacy has created a situation in which many candidates were unable to run for office. Affluent political families that have access to political machinery and financial resources have dominated this process. Moreover, some incumbent officials mobilize civil servants illegally and reward or punish local government officials to support the candidacy of their family members.
The direct regional elections have also increased administrative costs. The General Election Commission calculated that the cost of implementation of the direct regional elections during 2010-2014 reached RP 15 trillion. Part of the problem is that the General Election Commission does not run regional elections simultaneously. On average, over 100 direct regional elections have been run annually, with the Indonesian citizens voting in many separate ballots at different places and times.
In August 2010, President Susilo Bambang Yudhoyono’s expressed his concern about the political corruption and high administrative costs in the regional elections in his state address in the Joint Session of the House of Representatives and the Regional Representatives Council. By the end of 2010, the Yudhoyono administration moved forward to prepare the reorganization plan for the direct regional elections. The original bill of Regional Elections focused on three main aspects of the administration of the regional elections. First, the bill divided regional elections into two categories; gubernatorial election by local parliaments, and, district head and mayoral elections by popular vote. Second, the bill aimed to unify the schedule of regional head elections throughout Indonesia. The unification and integration of district head elections will obviously save money in the management and supervision of the elections. Third, the bill tried to address the political dynasty issue by prohibiting any candidate who has family ties with the incumbent.
Thus, it was the Yudhoyono administration that first came up with the proposal to scrap direct elections for Governor but maintain them for District Head and Mayor. The bill of regional election stalled in the House until there was a big change in Indonesian political landscape after the 2014 presidential election. Despite all the flaws, direct elections have also been credited with the emergence of popular and untainted regional leaders who are not traditional elite politicians. It has given rise to a non-establishment figure like the president-elect Joko Widodo, who began his political career as the mayor of the Javanese city of Solo before winning the gubernatorial election of Jakarta in 2012 and eventually becoming the first civilian president with no direct link to the New Order military regime.
In the presidential election that took place last summer, Joko Widodo, universally known as Jokowi, defeated Prabowo Subianto by more than six percentage points. Since his humiliating defeat, Subianto has been determined to frustrate the Widodo presidency at every turn, and the unexpected move of Subianto was to manipulate the regional election bill which had been stalled in the House for almost four years.
During the lame duck session in September 2014, Subianto and his coalition partners pushed for the approval of the regional election bill that entirely scrapped direct regional elections. In the lame duck House, Subianto’s Red White Coalition controlled 75 percent of seats, which included the then-largest party in the parliament, the Democratic Party of the outgoing President Yudhoyono. As the Chairman of Democratic Party, President Yudhoyono has repeatedly expressed his support for direct regional elections; nonetheless, his political party (which lost seats in July’s parliamentary elections) may benefit along with other large parties by being able to dominate the process of indirectly selecting mayors, bupati, and governors. In the 2014 presidential election, Yudhoyono’s Democratic Party supported Prabowo Subianto. In a dramatic turn, the Democratic Party lawmakers walked out of deliberations in the Parliament and stated they would remain “neutral” on the issue of regional elections. With the Democratic Party’s “neutrality,” the path was largely cleared for the Subianto led coalition to approve the bill of regional election.
The Constitutional Issue
Let me now turn to the real constitutional issue that arises from the approval of the controversial regional election bill. President Yudhoyono – who is keen to preserve his legacy after his 10 years in office – soon realized that he needs to be in damage control mode in the wake of his party “neutrality.” Here, we begin to see the real conundrum in the Indonesian Constitution. The Constitution does not equip the President with a veto power, which means the President cannot stop legislation from becoming law. In the U.S. Constitutional system, if both the House and the Senate pass a bill, then the bill continues on to the president, who either signs it into law or vetoes it. The Indonesian Constitution, however, states that if the President fails to sign an approved bill within 30 days following such approval, the bill shall legally become law and must be promulgated.
The current Indonesian constitution was the product of the constitutional reform that took place after the fall of the New Order military regime. For the political actors that led the constitutional reform in the late 1990s and early 2000s, the centerpiece of reform was on designing a weak presidency which lacks a veto. Consequently, the outgoing President Yudhoyono does not have many constitutional options in blocking a law that he finds unjust or unwise.
When the Parliament passed the law at the end of September, President Yudhoyono was on his last overseas trip, as he was scheduled to visit Portugal, the United States and Japan. When he stopped in Tokyo, he called and sought advice from two men in dealing with the controversial law. First, his former confidant, Constitutional Law Professor cum politician, Yusril Ihza Mahendra, advised the President not to sign the law and instead to let the incoming President Joko Widodo revise the draft for a new debate in parliament. Mahendra argued that the 30 day period for mandatory approval would not apply because President Yudoyono will finish his term on October 20, 2014, less than 30 days after the approval of the bill. Moreover, Mahendra made a reference to a constitutional provision that provides, “each bill shall be discussed by the House and the President to reach joint approval.” Therefore, Mahendra argued that the President-elect Joko Widodo has no obligation to sign the law because his administration did not approve the bill.
Mahendra’s advice was reasonable, but President Yudhoyono did not buy into it and instead phoned the Chief Justice of the Constitutional Court, Hamdan Zoelva, to seek a second opinion. Chief Justice Zoelva, however, advised the President that he did not have the authority to block the legislation, which will become law in 30 days with or without his approval. The Chief Justice argued that the bill originally came from the Yudhoyono administration and the Minister of Home Affairs heavily involved in the discussion. Thus, the law was jointly approved by the Yudhoyono administration and the House.
The phenomenon of the President calling the Chief Justice for constitutional advice clearly is a negative precedent for Indonesian constitutional development. By advising the President, Chief Justice Zoelva has issued an advisory opinion that may reduce the legitimacy of the Court, as it let the Executive treat the Judiciary as a consultative institution instead of a co-equal branch of government. In the current controversy, President Yudhoyono has listened to the Chief Justice’ opinion, but the future President might simply ignore such an advisory opinion, which could undermine the Court’s authority.
On October 2, 2014, President Yudhoyono signed two emergency decrees that aimed to restore direct regional elections. The first decree suspends Law No. 22/2014, which had scrapped direct elections for mayors, district heads and governors. The second decree amends Law No. 23/2014 on Regional Governance, which authorizes local assemblies to elect regional heads. The Constitution provides the President with an authority to issue an emergency decree in the form of a Government Regulation in Lieu of Law. Nonetheless, the Constitution requires that these decrees be approved by the House of Representative during its next session. In the new House, which just opened its business on October 1, 2014, Prabowo Subianto and his Red-White coalition control almost 60 percent of seats. Under the current political configuration, the House will most likely reject the two Government Regulations in Lieu of Law and according to the Constitution, should there be no such approval of the emergency decrees, they are revoked.
No one expects retired three-star General Prabowo Subianto and his allies to play nice against Jokowi’s presidency; the opposition must play its role as opposition. But the current Indonesian constitutional mechanism does not provide a healthy check and balances. Subianto and his coalition partners have proved that a strong legislative branch with a capacity to undermine the weak Presidency is very damaging. Joko Widodo will be sworn in as the seventh President of Indonesia on October 20, 2014. But with no ability to veto the actions of his political rivals, Widodo will not be able to win the political game. Moreover, Widodo’s allies in the Parliament only control 40 percent of seats, which is insufficient to stop havoc can be caused by Subianto’s Red-White Coalition.
As the third largest democracy in the World, Indonesia has clearly joined the club of polarized and fragmented democratic countries. The victory of Joko Widodo in the presidential election last summer is part of the common feature in democracies across the globe; presidential victory offers no clear mandate or dominant position to any party or candidate. The political polarization in Indonesia is even more perplexing because the Constitution does not provide a healthy mechanism of checks and balances.
Suggested citation: Stefanus Hendrianto, Indonesia’s Constitutional Conundrum: The Weak Presidency, the Strong Opposition and the Regional Elections Law, Int’l J. Const. L. Blog, Oct. 4, 2014, available at: http://www.iconnectblog.com/2014/09/indonesias-constitutional-conundrum-the-weak-presidency-the-strong-opposition-and-the-regional-elections-law/
 In 2007, the Constitutional Court ruled that candidacy should be open to any independent candidates that were not supported by political parties.
 See Buehler, Michael and Paige Tan. “Party-candidate relationships in Indonesian local politics: A case study of the 2005 regional elections in Gowa, South Sulawesi Province.” Indonesia (2007): 41-69.
 For a detailed analysis, see Buehler, Michael. “Decentralisation and Local Democracy in Indonesia: The Marginalization of the Public Sphere,” in Edward Espinall (ed), Problems of Democratisation in Indonesia: Elections, Institutions and Society (2010).
 The Strait Times, Why political dynasties persist in Indonesia, November 6, 2013, available at http://www.asianewsnet.net/Why-political-dynasties-persist-in-Indonesia-53661.html.
 PolTracking, Corruption and the High Cost District Head Elections, January 29, 2014, available at http://www.poltracking.com/artikel-hanta-yuda/359-corruption-and-the-high-cost-district-head-elections.
 Article 20, Section 5 of the 1945 Constitution
 Article 20, Section 3 of the 1945 Constitution
 The Jakarta Post, Yudhoyono vows to keep fighting for direct polls, September 30, 2014, available at
 The Jakarta Post, SBY issues Perppu to annul Pilkada Law, October 3, 2014, available at http://www.thejakartapost.com/news/2014/10/03/sby-issues-perppu-annul-pilkada-law.html.
 The Parliament passed two set of laws in its lame duck session: Law No. 22/2014 on Regional Elections and Law No. 23/2004 on Regional Governance.
 Article 22, section 1 of the 1945 Constitution
 Article 22, section 2 of the 1945 Constitution
 Article 22, section 3 of the 1945 Constitution