—Dian A H Shah, National University Singapore Faculty of Law
[Editor’s note: This is one of our biweekly I-CONnect columns. Columns, while scholarly in accordance with the tone of the blog and about the same length as a normal blog post, are a bit more “op-ed” in nature than standard posts. For more information about our four columnists for 2019, see here.]
On April 17, Indonesians will head to the polls for the first time since the 20th anniversary of the 1998 Reformasi movement that led to the end of Suharto’s authoritarian rule. The significance of the upcoming elections, however, goes beyond this. It could well be the most important ‘democracy fest’ (pesta demokrasi) that the country has ever witnessed – one that is set against the backdrop of regressing democratic and constitutional values.
For the first time in Indonesian history, the president, vice-president, and members of the legislature (Dewan Perwakilan Rakyat, DPR) will be elected on the same day. Previously, in 2004, 2009, and 2014, legislative elections preceded presidential elections. This sequence is significant because even though the president and vice-president are directly elected, the results of the legislative elections have been important in helping candidates to gauge and cobble together their support base for the presidential elections. This arises from the strict presidential nomination requirement in Indonesia’s elections law, which stipulates that to be eligible, presidential candidates must be nominated by political parties or a coalition of parties with at least 20 per cent of seats in the legislature or with at least 25 per cent of total valid votes from the legislative elections.
This requirement, though seen by some analysts as a tool to restrict political competition, was upheld by the Indonesian Constitutional Court in October 2018.  This means that the results of the 2014 legislative elections have been crucial in determining patterns of coalition-building ahead of the upcoming presidential elections. Its effects on Indonesian politics and governance, however, will only be seen after April 17. In the event that the coalition of parties that supports the winning presidential candidate fails to obtain a majority of seats in the DPR, this could frustrate the president’s governing agenda. Worse still, given Indonesia’s highly fragmented legislature, it could force the incoming president to engage in political horse-trading and weaken the effectiveness of both the executive and the legislature.
Continuing Salience of Religion and Ethnicity in Politics
An ineffective and weak government hamstrung by potentially cumbersome internal politicking would not bode well for constitutional democracy in Indonesia. Over the past few years, in particular, the rule of law and protection of fundamental rights have deteriorated in the face of identity politics. The prosecution and conviction of the former Jakarta governor, Basuki Tjahaja Purnama, for blasphemy in 2017 remains one of the high-water marks of the decline of the rule of law. During the investigations and trial, hardline groups – with tacit support from the Indonesian Ulama Council (Majelis Ulama Indonesia, MUI) and with political and financial backing from various political and military elite – mobilized on the streets of Jakarta to ‘defend Islam’, calling on the government to prosecute and convict Mr Basuki. All this has taken place against the backdrop of increasingly strained inter- and intra-religious relations, fueled – in part – by growing populism and anti-minority discourse as the political space opened up following Suharto’s resignation. In various districts and provinces, discriminatory by-laws that purport to regulate morality and public order have proliferated.
The incumbent Joko Widodo’s (Jokowi) choice of running mate reflects the continuing significance of religion in Indonesia’s political landscape. Ma’ruf Amin is the Chairman of the MUI, but he has little experience and background in politics and state administration. Although some have criticized this choice as a move to attract and appease conservative Muslim voters (Mr Ma’ruf was the Rais A’am, ie Supreme Leader of Nahdlatul Ulama – Indonesia’s biggest Muslim organization), another way of understanding this is to consider Mr Jokowi’s need to coopt particular clerics and exercise a degree of ‘control’ or moderating force over them. Mr Ma’ruf, after all, was at the center of the blasphemy prosecution against Mr Basuki – he was a key expert witness at the trial, and he testified that the former governor had blasphemed Islam and insulted the ulama and Muslims. In spite of all this, it is worth noting that Mr Jokowi is not alone in turning to religion to boost his winning prospects – his opponent, Prabowo Subianto, has also played the racial and religious card, and his campaign rally in Jakarta last weekend proved that he, too, is appealing to the conservative Muslim masses.
Declining Human Rights Protection and the Return of the Military in Politics?
The state of religious tolerance and religious freedom is only one of the many challenges facing the incoming administration after April 17. Indonesia also witnessed democratic regression during President Susilo Bambang Yudhoyono’s administration, which then accelerated over Jokowi’s first presidential term through restrictions on freedom of expression and suppression of political dissent by enforcing hate speech laws. In the final months of 2018, several government critics were arrested for treason, and – perhaps reminiscent of the Suharto era – reports surfaced about the involvement of security forces in clamping down on academic discussions in universities. In March 2019, a lecturer at the State University of Jakarta was arrested for allegedly inciting hatred against the Indonesian National Military (Tentara Nasional Indonesia, TNI). A Government Decree on Mass Organizations issued in July 2017 targeted the Hizbut Tahrir (a transnational Islamist network), who was one of the key actors in mobilizing against the former Jakarta governor, although the Decree was sold as an attempt to counter Islamic radicalism. However, various human rights and civil society organizations flagged the law’s potential to be abused, particularly against organizations that are seen as anti-Pancasila.
Mr Jokowi’s position in Indonesian politics has always been precarious. His rapid rise to power was (and still is) the subject of envy of many seasoned political elites. Unlike Suharto and Susilo Bambang Yudhoyono, he has no military background, but it was precisely his humble beginnings that endeared him to the Indonesian voters in 2014. With the lack of pedigree both within the military and political parties, Jokowi moved to consolidate his political position by appointing former army generals to key cabinet posts, as well as installing a personal ally as the Chief of TNI. These, along with a host of other incidents and policies – including the emergence of a ‘memorandum of understanding’ between the TNI and various state apparatus on civilian governance, and military involvement non-military tasks (such as agricultural labour) at village-level) – have sparked debates about the re-emergence of the military in civilian affairs. However, Jokowi’s Chief of Staff, Moeldoko (who is a retired military general) has recently denied allegations of a return of the military’s dwifungsi role.
Constitutional Culture and the Future of Indonesia’s Constitutional Democracy
The problems that I have highlighted in this piece are only the tip of the iceberg. What lurks underneath them is a more fundamental issue relating to democratic transitions: constitutional culture. In this respect, the Indonesian experience tells us that the resilience of renovated institutions and democratic reforms could well hinge on whether the country’s constitutional culture has evolved along with the structural changes introduced during its transition to democracy.
Suggested citation: Dian A H Shah, Indonesia’s Pesta Demokrasi in the Face of Regressing Constitutional Democracy, Int’l J. Const. L. Blog, Apr. 17, 2019, at: http://www.iconnectblog.com/2019/04/indonesias-pesta-demokrasi-in-the-face-of-regressing-constitutional-democracy/
 There were no presidential elections in 1999.
 For a more comprehensive analysis of the presidential nomination requirement and the 2018 Constitutional Court decision, see Simon Butt, ‘Indonesia’s stringent presidential nomination requirements: Constitutional Court upholds parliamentary threshold’, (Constitutionnet, 19 November 2018) http://constitutionnet.org/news/indonesias-stringent-presidential-nomination-requirements-constitutional-court-upholds.
 The nomination of Prabowo Subianto (whose running mate is Sandiago Uno, the Deputy Governor of Jakarta) is supported by four parties: Partai Keadilan Sejahtera (PKS), Partai Amanat Negara (PAN), Partai Demokrat, and Gerakan Indonesia Raya (Gerindra). These parties hold approximately 40% of the seats in the DPR. The incumbent, Joko Widodo, is supported by nine parties: Partai Demokrasi Indonesia-Perjuangan (PDIP), Partai Kebangkitan Bangsa (PKB), Golkar, Partai Nasdem, Partai Hati Nurani Rakyat (Hanura), Partai Persatuan Pembangunan (PPP), Partai Keadilan dan Persatuan Indonesia (PKPI), Partai Solidaritas Indonesia (PSI), and Partai Persatuan Indonesia (Perindo). PKPI, PSI, and Perindo do not hold any seats in the DPR, but the coalition is large enough to fulfil the presidential threshold requirement.
 See, e.g., Michael Buehler, The Politics of Shari’a Law: Islamist Activists and the State in Democratizing Indonesia (Cambridge University Press 2016).
 ‘Sidang Ahok, Ini Kesaksian Ketua MUI Ma’ruf Amin [Ahok’s Trial, Here is the Testimony of MUI Chief Ma’ruf Amin]’, (Tempo.co, 31 January 2017) https://metro.tempo.co/read/841454/sidang-ahok-ini-kesaksian-ketua-mui-maruf-amin/full&view=ok
 Nurul Fitri Ramadhani, ‘SBY questions Prabowo’s campaign event, calling it ‘too exclusive’’, The Jakarta Post (Jakarta, 7 April 2019) https://www.thejakartapost.com/news/2019/04/07/sby-questions-prabowos-campaign-event-calling-it-too-exclusive.html?src=mostviewed&pg=/
 See Edward Aspinall, Marcus Mietzner, and Dirk Tomsa (eds), The Yudhoyono Presidency: Indonesia’s Decade of Stability and Stagnation (ISEAS 2015); Edward Aspinall, ‘The Irony of Success’ (2010) 21(2) Journal of Democracy 20-34.
 Herlambang P Wiratraman, ‘Robet dan Ancaman Kebebasan Berekspresi [Robet and the Threat to Freedom of Expression]’, JawaPos, 8 March 2019, p 4.
 Tom Power, ‘Jokowi’s authoritarian turn’, (New Mandala, 9 October 2018) https://www.newmandala.org/jokowis-authoritarian-turn/
 Ibid; see also the case of Robertus Robet in Wiratraman (n 8); Maria Rita Hasugian, ‘TNI Kembali Aktif di Urusan Sipil, Dwifungsi Orde Baru? [TNI Active Again in Civil Affairs, New Order Dwifungsi?]’, (Tempo.co, 6 February 2018).
Institute for Policy Analysis of Conflict (IPAC), ‘Update on the Indonesian Military’s Influence’ (IPAC Report No 26, 11 March 2016), p. 6.