Constitutional Retrogression in Indonesia

–Abdurrachman Satrio, Researcher at the Center for State Policy Studies, Faculty of Law, Padjadjaran University

Constitutional retrogression, as defined by Aziz Huq and Tom Ginsburg, occurs when democratically elected rulers use formal legal measures to undermine democracy gradually.[1] In this post, I will argue that Indonesia – the most stable democratic country in Southeast Asia – has undergone constitutional retrogression in the era of President Joko Widodo’s government.[2]

When Widodo came to power in 2014, he was a weak president. At the time of his election, 60% of the House of Representatives (DPR) was controlled by Prabowo Subianto, the opponent he narrowly defeated in the 2014 presidential election. However, since then, Widodo has successfully consolidated his power due. He has built this support by persuading two main opposition parties to switch sides.[3]

Meanwhile, Widodo’s success in consolidating his power has been accompanied by worrying developments. One of these worrying developments involved his use of the Government Regulation in Lieu of Laws (Perpu) mechanism in the 1945 Constitution. At the end of 2016 and the beginning of 2017, Widodo’s government faced serious challenges in the form of the rise of political Islamist groups, which succeeded in overthrowing one of his key allies in the election of the DKI Jakarta Governor, a Christian politician of Chinese descent named Basuki Tjahaja Purnama (or ‘Ahok’). To minimize the threats posed by Islamist groups, the Widodo government decided to dissolve Hizbut Tahrir Indonesia (HTI) – a hard-line Islamic organization involved in the political Islamist movement whose views depart from the national ideology of Indonesia, Pancasila. However, instead of dissolving HTI with the existing mechanism in Law 17 of 2013 on Societal Organizations (Societal Organizations Law), Widodo issued Perpu 2/2017 that amended Societal Organizations Law in a way that allowed the government to dissolve HTI (or any other organizations) without a judicial process.[4] Shortly after that action, the government dissolved HTI based on this amendment to the Societal Organizations Law. 

Apart from issuing Perpu 2/2017, Widodo’s government has also prosecuted Islamist movement leaders, mostly in cases that are not directly related to their activity in Islamist organizations. For instance, one of the most prominent Islamist movement leaders, Rizieq Shihab, was investigated by the police for several reasons, including making an insulting remark about the official state ideology, Pancasila. Rizieq later fled to Saudi Arabia. Although this strategy counters the Islamist movement’s populist and religious agenda, which undoubtedly threatens Indonesia’s democracy, these responses themselves have undermined the core political rights on which democracy depends.[5]

More recent evidence of the Widodo’s government threat to rights to freedom of speech and association comes in his attempts to repress a grassroots political opposition movement, the #2019GantiPresiden (2019ChangePresident), by using police institutions backed by pro-government protesters.  This move clearly violates rights to speech and association since the movement is simply campaigning to change the Widodo administration in the 2019 elections.[6]

Widodo’s government has also engaged in activities that threaten another fundamental element of democracy, namely the need for a democratic electoral system. Widodo’s government, with the support of its majority in the DPR, enacted Law 7 of 2017 on General Elections that requires candidates for President and Vice President to be proposed by political parties or coalitions of political parties that command at least 20% of the seats in the DPR or which received a minimum of 25% of the votes in the general elections. In defence of this measure, his government argued that the threshold mechanism was needed to reduce the number of parties, so that Indonesia’s presidential system would become more stable. This mechanism, however, limits the opposition’s ability to compete in the presidential elections since almost 67% of the seats in the DPR is controlled by Widodo’s government.

Another key element of a democratic state, the rule of law, has not been spared by Widodo’s government. This threat was evident when he chose H.M. Prasetyo, a politician from Nasdem – a party that supports his government – as an attorney general (a post traditionally reserved for non-partisan appointee). Shortly after that, the attorney general arrested some members of the opposition on corruption charges.[7]

Other legal institutions in Indonesia have also been affected. One of them is the Constitutional Court, an institution that is often the main target of leaders seeking to undermine liberal democracy. Since its establishment, the Constitutional Court has played a crucial role in maintaining democracy and building the culture of constitutionalism among lawmakers. Today, the Court is one of the main barriers standing in the way of any Indonesian government that wants to consolidate its power.

The Widodo government’s assault took the form in the DPR’s re-appointment of Chief Justice, Arief Hidayat, to a second term position. Hidayat’s re-appointment was controversial because before undergoing the required fit and proper test, he was suspected of meeting several members of the DPR, especially with members of the DPR who support the government. This meeting led to Hidayat’s being investigated by the Constitutional Court’s Ethics Council, which resulted in an ethical sanction in mid-January 2018. Despite having met with members of the DPR and then accepting the ethical sanction, Hidayat was re-appointed as a Constitutional Court Justice on March 27, 2018. The re-appointment was heavily criticized by the opposition and constitutional law scholars. After Hidayat’s controversial re-appointment, a public petition was signed questioning his neutrality. While Hidayat refused to resign, the petition played a role in ensuring that he was not re-elected by his fellow justices to the position of Chief Justice.

Based on these examples, it can be said that Indonesia’s democracy has undergone a constitutional retrogression along the three dimensions that Huq and Ginsburg identify as central to the proper functioning of a democratic state: a democratic electoral system; rights to speech and association; and integrity of law and legal institutions.

To be sure, when these attacks began, they were ad hoc, such as the criminalization of radical Islamic leaders and the use of Perpu 2/2017 to block the Islamist populist movement in the Jakarta Governor’s election. However, as time has progressed, the Widodo government has seen the advantages of these ad hoc measures, and deliberately expanded them to combat regular democratic opposition, as seen in the repression of the #2019GantiPresiden’s movement.  Finally, even though constitutional retrogression has occurred, this does not mean there is no hope of saving democracy in Indonesia. The main reason for hope is that the Constitutional Court has been able to act independently, for example through its move to not re-elect Arief Hidayat as Chief Justice, and through its Ethics Council’s decision to sanction Hidayat for meeting with the DPR. Currently, the Court is in the process of reviewing Perpu 2/2017. If the Court annuls these Perpu, it may help to slow down a democratic decline in Indonesia.

Suggested Citation: Abdurrachman Satrio, Constitutional Retrogression in Indonesia, Int’l J. Const. L. Blog, Feb. 15, 2019, at: http://www.iconnectblog.com/2019/01/constitutional-retrogression-in-indonesia.

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This article was presented at the 2nd Indonesian Constitutional Court International Symposium, 1-3 October 2018. The full version of this paper appears in a recent edition of Constitutional Review.

[1] See Aziz Huq and Tom Ginsburg, “How to Lose a Constitutional Democracy”, UCLA Law Review 65 (2018).

[2] Edward Aspinall, “Twenty years of Indonesian democracy – how many more?”, New Mandala, (24 May 2018), available at https://www.newmandala.org/20-years-reformasi

[3] Stefanus Hendrianto and Fritz Siregar, “Indonesia: Development in Indonesian Constitutional Law,” in 2016 Global Review of Constitutional Law, ed. Richard Albert, David Landau, Pietro Faraguna and Simon Drugda, (Boston: ICONnect-Clough Center, 2017) 93.

[4] Article 71 of Law 17 of 2013 on Societal Organisation, which was amended by Perpu 2/2017, determines if the government’s request to dissolve mass organizations, it must be decided first by the court. 

[5] See Marcus Mietzner, “Fighting Illiberalism with Illiberalism: Islamic Populist and Democratic Deconsolidation in Indonesia”, Pacific Affairs 21, No. 2 (2018).

[6] Thomas P. Power, “Jokowi’s authoritarian turn and Indonesia’s democratic decline”, Bulletin of Indonesian Economic Studies 54, No.3 (2018) 328.

[7] Burhanuddin Muhtadi, “Jokowi’s First Year: A Weak President Caught between Reform and Oligarchic Politics”, Bulletin of Indonesian Economic Studies 51 (2015) 365.