—Stefanus Hendrianto, Pontifical Gregorian University
A controversy surrounding constitutional amendment has surfaced recently in Indonesia, after a veteran politician, Amien Rais, accused the administration of Joko Widodo (or Jokowi) of trying to sway the People’s Consultative Assembly (MPR) to amend the 1945 Constitution so that the presidential term could be extended.[1] Currently, President Jokowi is in his second and final five-year term. Rais suspected a plot to revise the Constitution to allow Jokowi to be elected for a third term.
The Driving Force behind the Proposal for Constitutional Amendment
In 2019, Jokowi’s political party, the PDI-P (Indonesian Democratic Party of Struggle), proposed a plan for a constitutional amendment to revive the defunct National State Planning Policy (Garis – Garis Besar Haluan Negara – GBHN), which was a centralized economic plan model under the New Order military regime.[2] At that time, Assembly (MPR) Speaker Bambang Soesatyo indicated that he would seek limited amendments to the Constitution. In late November 2019, however, the National Democratic or Nasdem party, one of President Jokowi’s closest allies in his coalition government, floated the possibility of a third term for Jokowi.[3]
President Jokowi stated that he will not back the proposals to increase the presidential term limit, saying that the proposal was akin to a “slap in the face.”[4]
Nevertheless, Jokowi’s statement did not put the proposal to rest, and the discussions have since snowballed, with Jokowi’s supporters continuing to float ideas to increase the presidential term limit. Recently, there is a new proposal to have Jokowi serve his third term with his former arch-nemesis, Prabowo Subianto. After his defeat in the last two presidential elections, Subianto finally joined Jokowi’s coalition and became the Minister of Defense. Arief Poyuno, a leading politician from Prabowo Subianto’s Gerindra Party, has been advocating for a change in the presidential term to three periods. Poyuno argues that the COVID-19 pandemic requires special handling from experienced leaders like Jokowi.[5] At the same time, a prominent pollster, Muhammad Qodari, has been pushing the ticket of Jokowi – Subianto for the 2024 Presidential election. Qodari argued that the ticket is necessary to prevent polarization in Indonesian society.[6]
The Absence of an Unconstitutional Constitutional Amendment Doctrine
What was most jarring about the debate on the constitutional amendment to extend the term limit is that Indonesian civil society, constitutional scholars, and analysts have no answer to counter such a proposal. While they clearly oppose the idea, they could not provide a compelling counterargument.
A critical theory notably absent in the current debate is the unconstitutional constitutional amendment doctrine. The doctrine holds that certain constitutional changes to a fundamental structure or principle of the constitution cannot be undertaken by constitutional amendment, but rather must be made by wholesale replacement of the constitution.[7]
Attempts by presidents across the world to alter term limits are nothing new under the sun. Several studies suggest that the desire for presidential re-election has been a significant determinant factor of constitutional replacement or amendment to the provision that prevents a sitting president from continuing in office.[8] Within this context, the unconstitutional constitutional amendment doctrine is vital to limit presidents’ ability to extend their terms in office.
The doctrine has manifested itself in a range of different constitutional configurations. First, it may be an explicit feature in a constitutional design where specific provisions in the constitution require different procedures for change or even are absolutely entrenchment, completely unamendable through the formal amendment or reform procedures.[9] Second, even where a constitution does not include the explicit feature of constitutional design that aims to prevent abusive amendments, some courts have developed the unconstitutional constitutional amendment doctrine by holding that certain constitutional changes require the intervention of the original constituent power. Therefore, these changes cannot be done via amendment.[10]
The unconstitutional constitutional amendment doctrine is not something alien in Indonesian constitutional history. The current Constitution distinguishes one provision from the rest by expressly designating the unitary state’s status as absolutely entrenched against any formal amendment.[11] The absolute entrenchment is evidence of how much the drafters regarded the unitary state in the highest pedestal of constitutional hierarchy, thus disabling formal amendments against it entirely.
Interestingly, the proponents of the third term of the presidency have argued that there is no entrenchment to the term limit provision. Therefore, the third term proposal is justifiable because the Constitution does not set any prohibition or specific requirement to amend the Constitution, so if they have the required minimum votes, then the provision can be amended.[12]
While there is no formal entrenchment to the term limit in the Constitution, the two five-year terms is the expression of the drafters’ constitutional values during the constitutional reform in 2001. The original 1945 constitution did not set any term limit, and the President was elected by the Assembly (MPR). Nevertheless, during the constitutional reform in 2001, the Amendments stripped the Assembly (MPR) of authority to pick a president, adopted a direct presidential election by popular vote (article 6A), and set a two five-year term limit for the President. Thus, the 2001 amendments were the expression of constitutional aspirations to dismantle one pillar of the authoritarian constitutionalist regime by abolishing the concentration of political power in the hand of the presidency and a dominant party system.
What’s Next?
The Constitution says that to amend an article of the Constitution, the session of the Assembly (MPR) requires at least 2/3 of the total membership of the Assembly to be present.[13] Then, an amendment to the articles of the Constitution can be made with the agreement of an absolute majority of the total membership of the Assembly.[14] The total number of Assembly members is 711, which means that the amendment process requires 474 members of the Assembly to be present and 356 members to approve an amendment. The ruling coalition already controlled 471 seats, which means that they are three seats short of the two-thirds requirement needed to initiate the Assembly session to discuss the amendment.[15] Unless there is a split in the ruling coalition, Jokowi’s supporters will not face an uphill battle in extending the presidential term limit into the third term. While Jokowi has reiterated that he has no intention of, and no interest in, becoming President for a third term,[16] there is no guarantee that he will stop his supporters from pushing for an amendment extending the presidential term. Some warning signs for Jokowi’s approach can be seen: while denying that he is looking to build a dynasty, Jokowi did not stop his oldest son and son-in-law from running in critical mayoral elections backing his party.[17]
If Jokowi’s supporters are successful in pushing for an amendment to extend the presidential term limit, it will be up to the Constitutional Court to stop the process. While the Court has no original jurisdiction to review the amendment process, constitutional stakeholders could try to bring the case before the Court. Nevertheless, the current Court under the chairmanship of Anwar Usmar has retreated further away from constitutional politics, and it is less likely than before that the Court will intervene.
Some political analysts have dismissed the proposed third term of the presidency as an unserious issue, considering that Jokowi had rejected it. Regardless of the seriousness of the proposal, there is a lot at stake in the debate over the third term of the presidency in Indonesia. But for now, everybody must wait and see whether or not Jokowi will join the club of presidents who alter term limits to remain in power.
Suggested citation: Stefanus Hendrianto, Term Limits and the Unconstitutional Constitutional Amendment Doctrine in Indonesia, Int’l J. Const. L. Blog, Apr. 13, 2021, at: http://www.iconnectblog.com/2021/04/term-limits-and-the-unconstitutional-constitutional-amendment-doctrine-in-indonesia/
[1] The Jakarta Post, “Presidential term limits in spotlight, again,” March 19, 2021. https://www.thejakartapost.com/news/2021/03/19/presidential-term-limits-in-spotlight-again.html. The third presidential term emerged when Amien Rais made a statement via his YouTube channel on March 13, 2021. https://www.youtube.com/watch?v=YGa11xyqNBQ.
[2] Stefanus Hendrianto, The 2019 Indonesian General Election: Constitutional Odds and Ends, Int’l J. Const. L. Blog, August 30, 2019, at: http://www.iconnectblog.com/2019/08/the-2019-indonesian-general-election-constitutional-odds-and-ends/.
[3] Jakarta Globe, “Surya Paloh Supports Constitutional Amendment to Allow for a Jokowi Third Term,” November 16, 2019, at https://jakartaglobe.id/news/surya-paloh-supports-constitutional-amendment-to-allow-for-a-jokowi-third-term/.
[4] The Jakarta Post, ” ‘Like a slap in the face,’ Jokowi says no to third presidential term,” December 2, 2019, at https://www.thejakartapost.com/news/2019/12/02/like-a-slap-in-the-face-jokowi-says-no-to-constitutional-amendment.html.
[5] VOI, “Jokowi Does Not Want To Hold Three Positions, Arief Poyuono: If The People Are Urged, He Will,” March 20, 2021, at https://voi.id/en/news/39993/jokowi-does-not-want-to-hold-three-positions-arief-poyuono-if-the-people-are-urged-he-will.
[6] VOI, “Looking At Jokowi’s Proposal For Three Periods,” March 12, 2021, at https://voi.id/en/news/38416/looking-at-jokowis-proposal-for-three-periods.
[7] See Yaniv Roznai. Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (New York: OUP, 2017).
[8] See Alexander Baturo and Robert Elgie eds., Politics of Presidential Term Limits (Oxford University Press, 2019); Mila Versteeg and others, “The Law and Politics of Presidential Term Limit Evasion,” 120 Columbia Law Review 173 (2020); Rosalind Dixon and David Landau, “Constitution End Games: Making Presidential Term Limits Stick,” 71 Hastings Law Journal 359 (2020).
[9] See David Landau, Yaniv Roznai and Rosalind Dixon, “Term Limits and the Unconstitutional Constitutional Amendment Doctrine: Lessons from Latin America,” in Baturo and Elgie eds., Politics of Presidential Term Limits.
[10] Id.
[11] The Constitution of Indonesia 1945, art. 37 (5)
[12] M. Qodari Interview with Najwa Shihab , March 18, 2021, available at https://www.youtube.com/watch?v=hPeLdPJ1fvM.
[13] The Constitution of Indonesia 1945, art. 37 (3).
[14] The Constitution of Indonesia 1945, art 37 (4).
[15] The recent split in the Democratic Party has heightened suspicions that the ruling coalition wanted to increase their votes for the constitutional amendment. The suspicions were because President Jokowi’s Chief of Staff, retired General Moeldoko, was elected as the leader of the Democratic Party after some factions of the party organized an extraordinary congress to remove the Democratic Party chairperson.
[16] Cabinet Secretariat of the Republic of Indonesia, “President Jokowi: I Have No Intention to Run for Third Term.” March 15, 2021, at https://setkab.go.id/en/president-jokowi-i-have-no-intention-to-run-for-third-term/.
[17] Ben Bland, “Indonesia’s Jokowi turns politics into a family business,” December 8, 2020, at https://asia.nikkei.com/Opinion/Indonesia-s-Jokowi-turns-politics-into-a-family-business. Both Jokowi’s eldest son and his son-in-law won their mayoral races, in Solo and Medan, respectively.
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