—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.]
All eyes are on Indonesia again as the Constitutional Court began hearing Prabowo Subianto and Sandiaga Uno’s appeal against the presidential election results released (officially) on 21 May 2019. The Prabowo-Sandi pair was defeated by the incumbent, Joko Widodo (Jokowi), and his running mate, Ma’ruf Amin, who emerged as winners of the hard-fought election with 55.50% of votes cast. This more or less confirms the ‘quick count’ results released by several survey organizations soon after polling ended on 17 April.
However, the Prabowo camp had always disputed these results from the moment they trickled in, arguing that exit poll data from 5000 polling stations and quick count results showed that Prabowo had won the elections with 55.4% and 52.2% of the votes, respectively. Based on these information – both compiled by his campaign team – Prabowo declared himself to be the winner of the elections and the ‘president of all Indonesians’, just hours after the polls closed and despite warnings from the Elections Commission that candidates should refrain from claiming victory until the Commission releases the official results in May. To demonstrate his readiness to go to ‘war’ over the election outcomes, Prabowo immediately alleged that certain survey organizations were attempting to steer public opinion against his success, and within days after the elections, his campaign team began releasing reports of electoral fraud.
On 24 May 2019, Prabowo and Sandiaga filed a lawsuit at the Constitutional Court to challenge the outcome of the presidential elections. The lawsuit seeks, among other claims, to annul the election results announced by the Elections Commission, disqualify the Jokowi-Ma’ruf Amin pair and declare that they had committed ‘structured, systematic, and massive’ electoral fraud, and pronounce the Prabowo-Sandi pair as the rightful winners of the election. This petition emerged in the wake of violent and deadly riots in Jakarta, bringing back memories of the violent street demonstrations that surrounded the fall of Soeharto in May 1998. Although initially organized as a series of peaceful protests against the election results, the demonstration also appeared to have been driven by undercurrents of ethnic and religious politics, as was obvious from the protestors’ use of various religious symbolisms and attributes, as well as prior dissemination of anti-Chinese, anti-communist, and anti-LGBT materials via social media. Police investigations later revealed the involvement of hardline Islamic organizations that had pledged support for Prabowo in the elections. This reflects – as I have highlighted in my previous post – not just the deeply polarizing elections in Indonesia, but also continuing anxieties over ethnic and religious identities.
The Indonesian Constitutional Court and Electoral Disputes
From a glass-half-full perspective, however, this series of events in Indonesia illustrates, first, that sustained attempts to discredit and undermine the democratic process in Indonesia failed. Several weeks before the official results were released, a member of Prabowo’s campaign team called for a ‘People Power’ rally, ostensibly in a bid to dethrone the expected winner, Jokowi. Not only has the Prabowo team disputed the election outcomes, it has also alleged – even before the elections – that the Jokowi-led government was manipulating the electoral process. Although concerns have been raised about patterns of democratic backsliding in Indonesia, it is significant that the May riots did not end with a coup d’etat – aside from the broad public acceptance of the results, even the Demokrat party (a key party in Prabowo’s coalition) declared that it will not heed calls to remove the government through unconstitutional means.
Second, leaving aside the mass demonstration and the motivations behind it, the recourse to the Constitutional Court is also noteworthy. It illustrates the acceptance that electoral disputes should be resolved through established legal (constitutional) channels and that despite the corruption scandals that had plagued the Constitutional Court over the past five years, the Court still holds a degree of legitimacy and credibility. This is, of course, not the first time that the Court has been called upon to adjudicate electoral disputes. The Constitution and Law No 24 of 2003 on the Constitutional Court confers the Court with jurisdiction to decide disputes over electoral results, and indeed, this has been one of the Court’s ‘most regularly-exercised’ tasks.
Prabowo himself is no stranger to submitting to this legal mechanism: in 2014, he and his running mate, Hatta Rajasa, petitioned the Court to invalidate the results of the presidential elections, citing various forms of electoral fraud and irregularities. For instance, the applicants alleged that the Elections Commission had made counting and tallying mistakes, that there were public officials in certain provinces who advocated for Jokowi, and that their rivals had engaged in money politics. These allegations resurfaced in the current lawsuit, but it is notable that the 2014 lawsuit failed. While acknowledging that there were irregularities in the elections process, the Court nonetheless held that Prabowo failed to substantiate claims of ‘structured, systematic, and massive’ violations and that the anomalies highlighted by the Prabowo camp would not have altered the final results anyway.
To Prabowo’s credit, as well as many others who have seen their applications rejected, the Constitutional Court’s decisions in election disputes have been respected. This is significant in the context of a country burdened by a long history of judicial corruption, dysfunctional legal system, and weak rule of law.
Judicialization of the Democratic Process: Indonesia and Beyond
The turn to courts to resolve issues implicating elections and the democratic process propels courts to the center of broader political battles and struggles for power. It is worth mentioning that beyond electoral disputes about results arising from counting errors, problems with the electoral roll, and violations of electoral laws, the Indonesian Constitutional Court has been involved in crucial decisions relating to the democratic process as a whole. These include reviewing prerequisites to hold presidential office, presidential nomination and parliamentary thresholds, requirements on the establishment of political parties, and whether parliamentary and presidential elections are to be held simultaneously.
But all this is not unique to Indonesia. For instance, this year, the Thai Constitutional Court has issued decisions that bear serious implications on the quality of the democratic process in Thailand. These included the dissolution of an anti-junta political party and the suspension of the leader of an anti-military, progressive political party, effectively preventing him from voting for the next Prime Minister. Recently, the Singapore Court of Appeal held that there was no duty on the government to call a by-election when a seat vacancy arises in a Group Representation Constituency, raising questions about the boundaries of the right to vote and representative democracy in Singapore. In Malaysia, in several challenges against the electoral results from the May 2018 elections, the Election Court has nullified electoral results on ground of bribery (vote buying), prompting re-elections to be held, and in some cases, the Federal Court has ordered a trial or for a by-election to be held.
The Indonesian Constitutional Court is expected to deliver its decision in the current challenge against the presidential elections result on 28 June 2019. In light of these events and decisions, the judicialization of the democratic process will continue to be a fertile area for research. More specifically, there are questions to be asked about how and why courts have decided the way they did, patterns of jurisprudence and reasoning, and the role and implications of judicial involvement in democratic reform.
citation: Dian A H Shah, The Game of Thrones, Courts, and the Democratic
Process in Indonesia, Int’l J. Const. L. Blog, June 21, 2019, at: http://www.iconnectblog.com/2019/06/the-game-of-thrones-courts-and-the-democratic-process-in-indonesia/
 ‘Quick count’ refers to preliminary results based on votes that are tallied at polling stations by various survey organizations (pollsters) such as Charta Politika, Indo Barometer, Litbang Kompas, and Indikator Politik Indonesia. See ‘Quick Count Pemilihan Presiden [Presidential Elections Quick Count]’ (Tempo.co), https://quickcount.tempo.co/;Retia Kartika Dewi & Akbar Bhayu Tamtomo, ‘INFOGRAFIK: Ini Hasil “Quick Count” Pilpres 2019 Versi 5 Lembaga [INFOGRAPHIC: Results of “Quick Count” of Presidential Elections 2019 from 5 Organizations’, Kompas (Jakarta, 18 April 2019), https://nasional.kompas.com/read/2019/04/18/18495211/infografik-ini-hasil-quick-count-pilpres-2019-versi-5-lembaga.
 Rahajeng Kusumo Hastuti & Samuel Pablo, ‘Pernyataan Lengkap Prabowo Komentari Exit Poll dan Quick Count [Prabowo’s Complete Statement on Exit Poll and Quick Count]’ (CNBC Indonesia, 17 April 2019), https://www.cnbcindonesia.com/news/20190417172107-4-67392/pernyataan-lengkap-prabowo-komentari-exit-poll-quick-count.
‘7 Tuntutan Prabowo ke MK, Salah Satunya Minta Jokowi Dicoret [Prabowo’s 7 Demands before the Constitutional Court, One of Which Seeks Jokowi to be Disqualified]’ (CNN Indonesia, 26 May 2019), https://www.cnnindonesia.com/nasional/20190526134825-32-398506/7-tuntutan-prabowo-ke-mk-salah-satunya-minta-jokowi-dicoret.
 The anti-communist propaganda is in part directed against President Jokowi, who was painted by his rivals throughout the elections campaign as a closeted communist. See Nadirsyah Hosen, ‘The presidential election: communism vs caliphate?’ (Indonesia at Melbourne, 5 April 2019), https://indonesiaatmelbourne.unimelb.edu.au/the-presidential-election-communism-vs-caliphate/.
 See Articles 22E and 24C(1) of the Constitution and Section 1(3) of Law No 24 of 2003 on the Constitutional Court (Constitutional Court Law). The Court is also tasked to review the constitutionality of statutes, decide disputes between state institutions, and adjudicate the dissolution of political parties.
 Simon Butt, The Constitutional Court and Democracy in Indonesia (Brill Nijhoff 2015) 249.
 Ibid, 279.
 Khemthong Tonsakulrungruang and Bjorn Dressel, ‘The Ties that Bind: Thailand’s Constitutional Court and the Military Junta’ (I-CONnect, 12 June 2019), http://www.iconnectblog.com/2019/06/the-ties-that-bind-thailands-constitutional-court-the-military-junta/.
 Wong Souk Yee v Attorney General  SGCA 25 (Court of Appeal, Singapore).
 Manogaran Marimuthu v Sivaraj a/l Chandran  Malayan Law Journal Unreported 1973 (High Court, Kuala Lumpur).