–Stefanus Hendrianto, Pontifical Gregorian University
The year 2022 marked the twentieth anniversary of the Indonesian “2002 Constitution.” But the country did not even have a subdued celebration for the Constitution amidst the increasing abuse of the Constitution by the Joko Widodo (“Jokowi”) administration. In the first quarter of 2023, with just a year until the end of his second and final term in office, the Jokowi administration did not show any sign of slowing down in abusing the Constitution. This essay will highlight several major areas that show the Indonesian Constitution’s weaknesses that the Jokowi administration and its supporters are exploiting.
The Deviant Indonesian Constitution[1]
When the People Consultative Assembly finished the Constitutional reform process twenty years ago, some people called the Constitution after the reform as the “2002 Constitution.”[2] But in reality, the Constitution still retains the name of the 1945 Constitution, and some sections of the political establishment still maintains allegiance to the 1945 Constitution instead of the “2002 Constitution”.[3] The fact is that the drafters conducted “amendments” instead of creating an entirely new constitution. The word “amends,” which comes from the Latin emendere, means to correct or improve; so, amend does not mean reconstitute or replace one system with another or abandon its principles.[4] It is true that the 2002 reform dealt with many issues and, ultimately, changed almost the entire text of the 1945 Constitution. But looking at the hierarchy of values in the amendments, I argue that the old 1945 Constitution survives without losing its identity, despite the massive changes and even though it has been subjected to alternations.
In sum, the “2002 Constitution” was successful in so far it dismantled the concentration of political power in the hand of the Presidency and a dominant party system. But some features of authoritarian constitutionalism remained despite the amendments. Thus, the 1945 Constitution did not lose its authoritarian character and become fully constitutionalist, but rather it was a mere rule of law constitution, with a separation of powers and a catalog of bills of rights.
As I explained in this blog before, one of the weaknesses of the “2002 Constitution” is that there is no entrenchment to the Presidential term limits provision.[5] While the Constitution set a two-five-year term limit for the President, there is no absolute entrenchment against any formal amendment to this provision. Thus, the Jokowi supporters have been using this argument to push for a constitutional amendment to extend the presidential term limit into the third term. Fortunately, Jokowi’s own party, the Indonesian Democratic Party of Struggle (PDI-P), strongly opposed the idea of a third term.[6] Presumably, the Chairwoman of PDI-P, Megawati Soekarnoputri, wants her daughter, Puan Maharani, the current Speaker of the House of Representatives, to be the next President instead of supporting Jokowi for the third term. So, without the support of PDI-P, the formal amendment proposal could not have come to fruition, at least up to this moment.
While the proposal for the amendment stalled, several Indonesian government officials and Jokowi’s supporters were still trying to push a way to prolong Jokowi’s presidency. One plausible leeway is through an emergency declaration for delaying the 2024 General Elections. Two issues need to be dissected here: first, article 22 of the Constitution states “Should exigencies compel, the President shall have the right to establish government regulations in lieu of laws.” Nevertheless, there is no clear definition of exigencies, so the President can issue any government regulation in lieu of laws according to his volition. During his nine years in the Presidency, Jokowi has issued eight government regulations in lieu of laws. While some government regulation of lieu of law has a basis in emergency, like dealing with the Covid 19 pandemic, others are pretty ambiguous in their exigent nature, like the Government Regulation on the Lieu of Law to restore the Omnibus Law of Job Creation that has been declared conditionally unconstitutional by the Constitutional Court (an issue that I will explain later in this essay).
The Constitution states, “General elections shall be conducted in a direct, general, free, secret, honest, and fair manner once every five years.”[7] The Constitution did not mention the possibility of delaying elections in case of war, pandemic, or emergencies. Moreover, the Constitution did not specifically define when exactly the five-year period should start and end. Unlike the Philippines Constitution, for instance, which clearly states, “the President and the Vice-President shall be elected by direct vote of the people for a term of six years which shall begin at noon on the thirtieth day of June next following the day of the election and shall end at noon of the same date, six years thereafter.”[8] Some of Jokowi’s supporters have been pushing for Jokowi to issue an emergency declaration to delay the election in the name of post-Covid 19 economic recoveries.[9]
An Emergency Declaration for postponing the Election?
On December 30, 2022, President Jokowi issued Government Regulation in Lieu of Law No. 2 of 2022 concerning Job Creation. The background of this government regulation in lieu of law is the Constitutional Court decision in November 2021, in which the Court ruled that the Omnibus Job Creation Law was conditionally unconstitutional and ordered the government to amend it within two years.[10] But instead of amending the Law as mandated by the Court, the Jokowi administration circumvented the Court’s decision by issuing the emergency regulation to reinstate the Law declared conditionally unconstitutional. While maintaining most provisions under the old Omnibus Law, the Jokowi administration introduces some revisions in the Government Regulation of the Lieu of Law. Nevertheless, these revisions were not in line with the Court’s ruling but rather intended to simplify basic requirements for business licensing, particularly relating to environmental-related approvals, building approvals, and the employment sector.
The Jokowi administration considers that there is an exigent basis to issue the Emergency Regulation, namely the impact of the Ukrainian war, which has affected many countries.[11] The bottom line is that Indonesia is facing a global recession, rising inflation, and the threat of an energy crisis. Therefore, the reasoning behind the government regulation of lieu of law is quite contradictory to Jokowi’s claim in his annual address to the House of Representatives in August 2022, in which Jokowi stated that Indonesia stands at the “pinnacle” of international leadership. Its economy is strong enough to withstand global headwinds.[12] In his address, Jokowi delivered an optimistic tone that the country’s economic fundamentals remain strong “in the midst of global economic turbulence” and as “crisis after crisis haunts the world.” Nevertheless, just four months after his address, Jokowi contradicted himself by issuing an Emergency Declaration due to the global economic crisis. So, if Jokowi can quickly issue an Emergency Declaration as he did in the case of Omnibus Law, the idea of Jokowi issuing an Emergency Declaration to postpone the election won’t go away.
A District Court’s Decision to postpone the Election.
While Jokowi’s supporters have been plotting the idea of postponing the election for many months, the Central Jakarta District Court suddenly issued a shocking decision in early March 2023 ordering the General Election Commission to postpone the 2024 elections, which is scheduled to be held on February 14, 2024. The case originated from the complaints from People Justice and Prosperous party (Partai Rakyat Adil dan Makmur – PRIMA party) that claimed the Election Commission had unfairly disqualified them from running in the elections. The District Court ruled in favor of the PRIMA party and ordered the general elections to be postponed for two years, four months and seven days. The District Court’s decision could delay the election until 2026, which means seven years pass from the last General Elections in 2019. As it stands, the District Court’s decision could force the General Election Commission to postpone the elections. Presumably, President Jokowi could stay in office as the “caretaker” until a new election can be held.[13]
The PRIMA case is quite problematic in several respects.[14] First, the District Court has no jurisdiction over a case where a plaintiff wants to sue an administrative agency decision for maladministration. It is the administrative Court that has jurisdiction over such cases. The PRIMA party had filed two petitions to the Jakarta Administrative Court, and the Administrative Court dismissed both claims. Secondly, the Constitutional Court has no authority to review the lower court decisions, even if the decision contains a constitutional issue. So, the Constitutional Court cannot fix the problem created by the District Court, despite its ruling leading to a clearly unconstitutional result. Third, the General Election Commission has appealed the PRIMA case to the High Court. On April 11, 2023, the Jakarta High Court of Appeal ruled in favor of the General Election Commission, overturning the Central Jakarta District Court’s decision that ordered the 2024 general elections to be postponed. The decision is likely to be appealed to the Supreme Court. Suppose the Supreme Court rule favors the PRIMA party. In that case, there will be a new constitutional crisis, which might prompt President Jokowi to issue the Emergency Declaration to delay the election.
Beyond the Jokowi Presidency?
In his final years in office, President Jokowi’s approval rating hit an all-time high. Figures released by a local pollster in January 2023 showed that his approval rating sat at 76.2 percent, more than 13 points higher than in September 2022.[15] This number is remarkable for a leader who has been proven controversial in disregarding the Constitution. Nevertheless, this number also provides new ammunition for his supporters to keep pushing for a way to extend his tenure beyond the end of his second term. But even if Jokowi and his supporters fail in their mission, Jokowi would likely try to leave a firm imprint on the next administration to secure his legacy.
One person who could spoil Jokowi’s plan is a former Governor of Jakarta, Anies Baswedan, who has forged a coalition to support his plan to run in the 2024 presidential election. Baswedan, a US-educated politician with a doctorate in political science from Northern Illinois University, has been viewed as the antithesis of President Jokowi. If Baswedan were to succeed in his quest to become the next President, it will be better for him to have a major constitutional reform in his top agenda. The “2002 Constitution” has proven to be ineffective in sustaining Indonesian democratic endurance, and therefore, Indonesia needs a new constitution that makes a radical break from the current deviant Constitution. In that way, Baswedan can genuinely be an antithesis of Jokowi.
Suggested citation: Stefanus Hendrianto, After Twenty Years of the 2002 Indonesian “Constitution”: Will President Jokowi Stay in Power Longer? Int’l J. Const. L. Blog, Apr. 16, 2023, at: http://www.iconnectblog.com/2023/04/after-twenty-years-of-the-2002-indonesian-constitution-will-president-jokowi-stay-in-power-longer/
[1] In Politics, Aristotle investigated the entire spectrum of regimes existing in his day, in which he distinguished between correct and deviant or imperfect constitutions. While Aristotle made such a distinction in the context of regimes instead of a written constitution, it is also appropriate to use the term deviant constitution to illustrate written constitutions with many flaws.
[2] Goenawan Mohamad, “Konstitusi 2002,” Tempo Magazine No. 26/XXXI, August 26, 2002
[3] See Marcus Mietzner, “Defending the Constitution, But Which One? The Indonesian Military, Constitutional Change and Political Contestation, 1945 -2020,” in Constitutional Democracy in Indonesia, edited by Melissa Crouch (Oxford University Press, 2022).
[4] Walter Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Baltimore: Johns Hopkins University Press, 2007), 506.
[5] Stefanus Hendrianto, “Term Limits and the Unconstitutional Constitutional Amendment Doctrine in Indonesia,” IConNect blog, April 13, 2021,
Term Limits and the Unconstitutional Constitutional Amendment Doctrine in Indonesia
[6] “Megawati says no to idea of President Jokowi’s third period,” Indonesia Business Post, January 10, 2023,
https://indonesiabusinesspost.com/insider/megawati-says-no-to-president-jokowis-third-period/
[7] The 1945 Indonesian Constitution, Article 22E (1).
[8] The 1987 Philippines Constitution, Article VII, Section 4.
[9] Tim Lindsey, “Indonesia battles a push to postpone elections – and undermine its fragile democracy,” The Jakarta Post, April 4, 2022, https://www.thejakartapost.com/opinion/2022/04/03/indonesia-battles-a-push-to-postpone-elections—and-undermine-its-fragile-democracy.html
[10] Stefanus Hendrianto, “The End of the Beginning of Abusive Constitutional Borrowing in Indonesia: On the Suspension Order of the Omnibus Law of Job Creation,” IConNect blog, February 12, 2022, http://www.iconnectblog.com/the-end-of-the-beginning-of-abusive-constitutional-borrowing-in-indonesia-on-the-suspension-order-of-the-omnibus-law-of-job-creation/
[11] Sebastian Strangio, “Indonesian Parliament Passes Emergency Jobs Regulation,” The Diplomat, March 23, 2023. https://thediplomat.com/2023/03/indonesian-parliament-passes-emergency-jobs-regulation/
[12] Aisyah Llewellyn, “Indonesia’s Widodo hails ‘strong’ economy, rising global profile,” Al Jazeera, August 16, 2022, https://www.aljazeera.com/economy/2022/8/16/indonesias-widodo-hails-strong.
[13] No one knows whether PRIMA case is part of Jokowi’s plot to stay in office longer or simply a coincidence. PRIMA party itself is a very small political party founded in 2021. On the surface, the party was founded by some factions of the defunct of left-wing People’s Democratic Party (PRD), one of the main opposition parties under the New Order military regime. But the man behind the party is Major General Gautama Wiranegara, the Secretary of The National Counter Terrorism Agency under the Jokowi administration.
[14] For a more detailed analysis of the PRIMA case, please see Tim Lindsey and Simon Butt, “Will Indonesia’s presidential election be delayed? And could Jokowi stay in power longer?” The Conversation, March 30, 2023, https://theconversation.com/will-indonesias-presidential-election-be-delayed-and-could-jokowi-stay-in-power-longer-202609
[15] Sebastian Strangio, “Indonesia’s Jokowi Registers All-Time High Approval Rating,” The Diplomat, January 23, 2023, https://thediplomat.com/2023/01/indonesias-jokowi-registers-all-time-high-approval-rating/
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