Early Warning Signs of Abusive Constitutionalism in Indonesia: Pandemic as Pretext

–Stefanus Hendrianto, University of San Francisco

Introduction

On March 31, 2020, Indonesian President Joko Widodo, commonly known as Jokowi, issued Government Regulation in lieu of Law of the Republic of Indonesia No. 1 of 2020 on the National Finance and Financial System Stability Policy for Handling Corona Virus Disease 2019 (COVID-19) Pandemic and/or in Order to Face Threats that Endanger the National Economy and/or Financial System Stability (“the Emergency Regulation No. 1 of 2020”). The issuance of the Emergency Law No. 1 of 2020 marked an early warning sign of abusive constitutionalism in Indonesia, with the government’s management of the pandemic as a pretext.

There are two major provisions of the Emergency Regulation that are problematic. First, it provides that changes to the National State Budget during the COVID-19 response period or threats to the national economy in the future (until the end of 2022) can be carried out by Presidential Regulation.[1] On its face, this provision seems to violate the Constitution, which states that the President shall submit the bill on the State Budget for joint consideration with the House of Representative (DPR), whose consideration in turn shall take into account the opinions of the Regional Representative Council (DPD).[2] Secondly, the Emergency Regulation provides immunity to government officials, so that they will not be held liable civilly and criminally.[3] Finally, the Emergency Regulation also exempts government officials from any administrative liability.[4]

By the time of the writing of this essay, there is still a pending case in the Constitutional Court against the constitutionality of Emergency Regulation No. 1 of 2020. The Constitutional Court will most likely reject the petition on technical legal ground because Emergency Regulation No. 1 of 2020 has been ratified by the House (DPR) into a statute. In other words, the case is moot as the object of review no longer exists. The Constitution provides that the President shall have the right to establish government regulations in lieu of laws during the emergency period, but such government regulations must obtain the approval of the (House) DPR during its next session.[5] The House moved quickly to ratify the Law, despite the fact that the Law curtails their authority to discuss the state budget with the President. Thus, the claimants made a tactical mistake by challenging the Emergency Regulation instead of waiting for the House to ratify the Emergency Regulation into a statute.

The Origins of the Abuse

It took almost two months for the Jokowi administration to make a strategic national policy regarding how the administration would manage the pandemic.[6] Partly, there was an element of denial during the January-March period, in which the Indonesian Minister of Health claimed that the virus would not enter Indonesia because of prayer[7] or the conviction that people can rely on traditional herbal remedies to protect themselves from the virus.[8]

But the main reason behind the Jokowi administration’s slowness to act was the administration’s subordination to investment and GDP growth targets. Like his predecessors, Jokowi has been emphasizing a “growth” ideology.[9]  The sudden appearance of Covid-19 has caused a major public health crisis that takes its toll on the GDP growth target. The Health Quarantine Law No. 6 of 2018 provides a measure of regional quarantine (Karantina Wilayah) in response to major public health crisis. The Law prescribes that regional quarantine measures mean border restrictions in specific areas, and the Central Government must provide basic necessities for the people who live in the area under the quarantines.[10] The fear of the Jokowi administration is magnified by the fact that the government would have to take on the burden of providing basic necessities such as food and medicine for millions of its residents nationwide during a lockdown, which would put further strain on its resources.[11] To the Jokowi administration, economic protection for citizens during the lockdown would be an extra cost that could hamper economic growth.

Instead of imposing regional quarantines, the Jokowi administration chose to adopt Large-Scale Social Restrictions (Pembatasan Sosial Berskala Besar), as an implementation of the Health Quarantine Law, which restrict the movement of people and goods within a control zone, but he stopped short of allowing regional administrations to close their borders.[12] Moreover, the Large Scale-Social Restrictions did not impose a mandate for the Central Government to provide the basic necessities for citizens within a control zone.

Regional governments, both district and provincial, have sometimes wanted to move more quickly and impose stricter measures than the Central Government. The most obvious tension was between President Jokowi and Governor of Jakarta Anies Baswedan. Baswedan tried to implement severe restrictions and to quarantine Jakarta, but his decision was overridden by the Central Government. Some argues that the tension was the manifestation between Jokowi and Baswedan, who has presidential ambitions for 2024. But similar tensions also developed between the Central Government and other Provincial and District Governments.[13]

While the country struggles to cope with the outbreak, the Jokowi administration has other priorities: to push through a contentious omnibus bill on Job Creation that aims to strengthen Executive power.  The administration initially submitted a draft Omnibus Law on Job Creation to the House in February. The proponent of the bill says that it aims to boost economic growth by simplifying 79 laws that are believed to hamper business. Nevertheless, the bill gives sweeping powers to the President, with no sunset clause. For instance, article 170 states that the bill gives authority to the central government to issue a regulation to change the provisions of law that have not been amended by the Omnibus Law itself in order to accelerate the implementation of national economic strategic policies.

The bill would thus give the Executive near-absolute power, by granting the authority to the President to surpass the authority of the legislative branch to make laws. The members of the governing coalition in the House have been pushing to pass the bill, as they wanted to seize an opportunity to pass it during the Covid-19 outbreak, which effectively quashes the possibility of massive street protests. After some labor unions and workers threatened to hold mass protests on April 30, Jokowi decided to postpone hearings on the labor sections of the bill, but the other parts of the bill, including the economic portions, will still be discussed. With the governing coalition parties controlling 85 percent of the seats in the House and no apparent mass movements that would be able to challenge the process, the bill will most likely be passed this summer.

Restrictions on Freedom of Expression

During the Covid-19 pandemic, the Jokowi administration has moved to undermine protection for certain individual rights, especially the freedom of expression. In early April, the Indonesian National Police decided to step up social media surveillance to carry out sweeping operations against what they considered slander against the government in handling the coronavirus epidemic.[14] Furthermore, the presidential spokesperson called on the public not to criticize the government’s treatment of the coronavirus pandemic, saying that it should instead focus on respecting physical distancing in order to slow its transmission.[15]

The administration did not wait too long to shut down government critics. The Coordinating Minister for Maritime Affairs Luhut Binsar Panjaitan, a trusted adviser to President Joko Widodo, filed a defamation suit against Said Didu, a former secretary of state-owned enterprises ministry turned ardent government critic. The crux of the matter is that Didu posited that Pandjaitan was the one who insisted that the Minister of Finance must not redirect the resources for the Capital relocation to deal with the coronavirus outbreak.

Indeed, the Jokowi administration’s policy in dealing with the outbreak has been overshadowed by the capital relocation plan. After winning re-election, Jokowi made the ambitious promise, without any constitutional justification, to move the capital city out of Jakarta to East Kalimantan, which could cost 466 trillion rupiahs (US$32.7 billion). Due to the coronavirus outbreak, the Jokowi administration was very reluctant to redirect its resources for the new capital to emerging social and health problems.

Recently, a student club known as the Constitutional Law Society from the prestigious Gadjah Mada University received death and terroristic threats because of their plan to hold an online discussion on “The Removal of the President in the era Pandemic: A Constitutional Perspective.” The students decided to cancel the event due to safety concerns. While there was no compelling evidence to suggest the administration’s direct involvement in this incident, an academic known to be an avid Jokowi supporter slammed the discussion, arguing that discussing an impeachment scenario could be seen as treason, against which the government should take stern action.[16] It was suspected that the Jokowi’s supporter’s treason accusation was the trigger that prompted the threat and intimidation.[17]

Constitutional Implications

The literature on comparative constitutional law has coined the phenomenon of abusive constitutionalism,[18] in which the new regime replaces an existing liberal-democratic constitutional system as a way to consolidate power and marginalize the opposition. The abuse may not only occur via a formal constitutional change, but also through informal constitutional changes or at the sub-constitutional level. The regime may alter the existing constitutional system by changing statutes governing the regulation, increase the media oversight, or punishing the opposition with defamation laws, bankruptcy law, or electoral laws.[19]

In the last three months, constitutional developments in Indonesia have shown early warning signs of abusive constitutionalism. Through the Emergency Regulation and the Omnibus bill on Job Creation, the Jokowi administration has subverted the minimum set of checks and balances between the elected branches of government. Moreover, the Jokowi administration has lowered the degree of its commitment to protecting individual rights, especially freedom of expression. Above all, the Jokowi administration has abused the Constitution with the Capital Relocation plan. Up to this moment, there is no statutory basis for Capital Relocation, let alone a constitutional justification.[20] Nevertheless, the Jokowi administration has vowed to move ahead with the plan amid the coronavirus outbreak.[21] Only time will tell whether Jokowi will be remembered as a down-to-earth, democratic leader as he has been portrayed in recent years, or whether he will join the choirs of new autocrats who dismantle the existing liberal-democratic constitutional system.

Suggested citation: Stefanus Hendrianto, Early Warning Signs of Abusive Constitutionalism in Indonesia: Pandemic as Pretext, Int’l J. Const. L. Blog, Jun. 20, 2020, at: http://www.iconnectblog.com/2020/06/early-warning-signs-of-abusive-constitutionalism-in-indonesia-pandemic-as-pretext/

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[1] Article 12 (2) of Emergency Regulation No. 1 of 2020.

[2] Article 23 (2) of the 1945 Indonesian Constitution.

[3] Article 27 (2) of Emergency Regulation No. 1 of 2020.

[4] Article 27 (3) of Emergency Regulation No. 1 of 2020.

[5] Article 22 (2) of the 1945 Indonesian Constitution.

[6] On March 31, President Jokowi issued Government Regulation No 21/2020 allowing Large Scale Social Restriction (Pembatasan Sosial Berskala Besar – PSBB) aimed at limiting the spread of COVID-19.

[7] The Jakarta Post, “It’s our nation’s right to rely on the Almighty’: Minister justifies calling for prayers in coronavirus battle,” February 17, 2020, at https://www.thejakartapost.com/news/2020/02/17/its-our-nations-right-to-rely-on-the-almighty-minister-justifies-calling-for-prayers-in-coronavirus-battle.html.

[8] South China Morning Post, “Ignoring medical advice, Indonesians throng ‘jamu’ herbal drink parlours, believing concoctions protect against coronavirus,” March 27, 2020, at https://www.scmp.com/lifestyle/travel-leisure/article/3077099/ignoring-medical-advice-indonesians-throng-jamu-herbal.

[9] For an excellent analysis of economic growth under Jokowi’s administration, please see Timothy Cheston, “Indonesia and the Quest for 7% Growth: Overpromise or Underperformance?” Center for International Economic Development at Harvard University, available at http://atlas.cid.harvard.edu/stories/indonesia/.

[10] Article 55 of Law No. 6 of 2018 on the Health Quarantine Law.

[11] Endy Bayuni, “COVID-19 lockdown? It’s not the economy. It’s people’s health and lives!” The Jakarta Post, March 17, 2020, at https://www.thejakartapost.com/academia/2020/03/17/covid-19-lockdown-its-not-the-economy-stupid-its-peoples-health-and-lives.html.

[12] Article 59 of Law No. 6 of 2018 prescribes Large Scale Social Restriction. See The Jakarta Post, “Indonesia’s strategy to combat COVID-19: What we know so far,” April 3, 2020, at https://www.thejakartapost.com/news/2020/04/03/indonesias-strategy-to-combat-covid-19-what-we-know-so-far.html.

[13] See Max Lane, “The Politics of National and Local Responses to the COVID-19 Pandemic in Indonesia,” ISEAS Perspective. ISSUE: 2020 No. 46, May 15, 2020, at https://www.iseas.edu.sg/wp-content/uploads/2020/03/ISEAS_Perspective_2020_46.pdf.The Mayor of Tegal in Central Java moved to shield the city from outside visitors.  This decision was followed by more clashes between the Central Government and Maluku, and then Papua.

[14] The Jakarta Post, “Criticism ‘not an insult’: Police’s plan to nab slanderers of govt over COVID-19 questioned,” April 6, 2020, at https://www.thejakartapost.com/news/2020/04/06/criticism-not-an-insult-polices-plan-to-nab-slanderers-of-govt-over-covid-19-questioned.html.

[15] Id.

[16] The Jakarta Post, “UGM students receive death threats over discussion on removing presidents from office,” May 31^st, 2020, at https://www.thejakartapost.com/news/2020/05/31/ugm-students-receive-death-threats-over-discussion-on-removing-presidents-from-office.html. On Thursday May 30th, Bagas Pujilaksono wrote an opinion article denouncing the discussion as an act of treason. Pujilaksono has denied his involvement in the death threats and intimidation. Nonetheless, Pujilaksono has been known as the proponent of Jokowi through his public defense of Jokowi against the opposition group. See Republika Daily Newspaper, “Bagas yang Dilaporkan Gubes UII Pernah Minta Anies Mundur,” June 3, 2020, at https://republika.co.id/berita/qbc0j9484/bagas-yang-dilaporkan-gubes-uii-pernah-minta-anies-mundur.

[17] The Jakarta Post, “UGM discussion on removal of presidents leads to death threats,” June 2, 2020, at https://www.thejakartapost.com/paper/2020/06/01/ugm-discussion-on-removal-of-presidents-leads-to-death-threats.html. See also Abdurrahman Satrio, “Academic freedom under fire: constitutional law scholars threatened over impeachment talk,” Indonesia at Melbourne, June 9, 2020. https://indonesiaatmelbourne.unimelb.edu.au/academic-freedom-under-fire-constitutional-law-scholars-threatened-over-covid-impeachment-talk/.

[18] David Landau, Abusive Constitutionalism, 47 UC DAVIS L. REV. 189 (2013).

[19] David Landau and Rosalind Dixon, “Abusive Judicial Review: Courts Against Democracy,” 53 UC Davis Law Review 1313, 1320 (2020), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3366602.

[20] It was reported that the draft of Capital Relocation bill was circulated among the public at large in early June. CNN Indonesia, “Beredar RUU Ibu Kota Negara, Demokrat Minta Penjelasan Jokowi” June 6, 2020, https://www.cnnindonesia.com/nasional/20200611131950-32-512195/beredar-ruu-ibu-kota-negara-demokrat-minta-penjelasan-jokowi.

[21] Tempo, “Ada Virus Corona, Bappenas: Ibu Kota Tetap Pindah Sesuai Rencana,” (Corona Virus surge, Indonesia’s planning ministry is going ahead with the Capital relocation) March 4, 2020, at https://bisnis.tempo.co/read/1315465/ada-virus-corona-bappenas-ibu-kota-tetap-pindah-sesuai-rencana.