Made Supriatma – The unprecedentedly long interim between Indonesia's election and the new government's inauguration has allowed the outgoing president and Parliament unusual leeway to distort democracy in self-serving ways.

The Indonesian parliament (DPR) has been quite active during its lame-duck session. The outgoing DPR and government have intensified their efforts to pass various controversial pieces of legislation that could significantly impact Indonesian politics.

Currently, the DPR is discussing several contentious amendments to existing laws that would be unlikely to pass under normal circumstances. The proposed amendments were drafted hastily, without transparency, and isolated from public discussion. Many were surprised when they learned that the amendments had already passed the public consultation stage.

The Law on the Constitutional Court has undergone its fourth amendment since its introduction in 2001. This latest amendment focuses on technical issues but carries substantial implications. It allows a judge to be re-elected after completing their term, contingent on passing an evaluation by the government and the DPR. There is suspicion that this is the government and DPR's attempt to control Constitutional Court judges, as this would erode judicial independence by making judges beholden to politicians and the legislature.

Separately, the government and DPR are working to amend the law on state ministries, to remove the current cap of 34 ministries. This amendment will grant the president the authority to determine the number of ministries. Prabowo Subianto, the president-elect, allegedly plans to increase the number of ministries to 41 to distribute power among his coalition and other political forces. If passed, this could worsen bureaucratic bloat and decrease government efficiency, if the increase is not well handled.

Another contentious amendment involves two security sector laws: the Indonesian National Armed Forces (TNI) Law and the Police Law. The TNI Law amendments will, among other things, legalise the appointment of soldiers to civilian positions without requiring them to first retire, raise the retirement age from 58 to 60 years of age, and lift the ban on military soldiers engaging in business activities. Critics worry that these changes will increase the military's presence in civilian affairs.

The amendments to the Police Law will expand police powers, allowing for international crime prevention capabilities, increased authority in supervising cyberspace, and enhanced wiretapping powers. Indonesian civil society fears that these expanded powers will transform the police into a "superbody": an institution with broad authority but minimal accountability. Additionally, there are concerns that these new police powers will overlap with the TNI's and other state intelligence agencies'.

The DPR has initiated the revival of the Supreme Advisory Council, which was previously replaced by the Presidential Advisory Council (PAC). This idea aligns with Prabowo's earlier proposal – which fell flat – to create a so-called "Presidential Club" of all the living former presidents to meet regularly with him to discuss strategic issues. Unlike the PAC, which operates under the president, the proposed Supreme Advisory Council is a state institution that stands parallel to the presidency. President Joko "Jokowi" Widodo is reportedly set to join this institution as its chairman. The public sees this as Jokowi's attempt to remain relevant and influential in politics even after he steps down in two months' time.

Additionally, the DPR and the government are working to revise the broadcasting law, which has drawn significant attention from the press and human rights activists due to concerns about further restrictions on press freedom. There is particular concern over plans to limit or ban investigative journalism and the publication of content related to LGBTIQ+ individuals and behaviours deemed "deviant".

Experts argue that creating and passing legislation that significantly alters politics is unjustifiable and illegitimate. Politicians from an outgoing regime lack the legitimacy to enact policies that would substantially impact the new government. Constitutional law experts have analysed this phenomenon and found that such enactments of legislation during the lame-duck period are not new. Researchers from the University of Indonesia and the DPR-RI Research Center, for instance, discovered that the DPR's productivity in passing legislation during regular sessions is relatively low, averaging around 20 laws per year. (This figure includes discussions and ratifications of laws outside the National Legislation Programme, Prolegnas, such as international treaties and agreements.) Consequently, the DPR-RI is deemed extremely unproductive, passing fewer than ten domestic laws per year. However, the DPR's productivity increases significantly during any government transition period (Figure 1).

Figure 1. Laws Passed in Years of Government Transition, 1999-2019, Indonesia

Source – Arsil, Mauleny, and Wasti, Parliamentary Affairs, Volume 76, Issue 2, April 2023, Pages 421-442, https://doi.org/10.1093/pa/gsab058

Laws passed during lame-duck periods often serve the interests of political elites. According to the aforementioned research, in Indonesia's case, because the process lacks transparency and public participation, these laws are likely to be challenged in the Constitutional Court. The elites are aware of the laws' lack of legitimacy but proceed for various reasons, such as serving their short-term interests, finding it easier to litigate in the Constitutional Court rather than negotiating with diverse stakeholders, and the absence of rules prohibiting lawmaking during lame-duck periods. Moreover, if the proposed revision of the Constitutional Court Law is approved, it will be even easier in future for the government and the DPR to influence this court's judges.

Only the Indonesian Democratic Party of Struggle (PDI-P) has openly opposed the lame-duck session laws. The PDI-P, however, lacks the votes to prevent these amendments; this may be just political posturing. The PDI-P will be aware it could be hamstrung if there is credence to talk that Jokowi's administration will issue a government regulation in lieu of law (Perppu) concerning Law No. 17 of 2014 on the MPR, DPR, DPD and DPRD (popularly called "UU MD3"). (The MPR is the People's Consultative Assembly, comprising the DPR and the Regional Representatives Council, DPD. The DPRD is the Regional People's Representative Assembly.) If issued, this Perppu will eliminate the automatic right of the party with the largest number of seats – currently the PDI-P – to occupy the DPR Speaker's seat and subject the position to a vote. This will effectively nullify the PDI-P's showing in the 2024 general elections, where it won the largest number of DPR seats (110 of 580) and prevent it from obtaining one of the most influential positions in the next government.

The rushed drafting and passage of controversial laws and amendments during the present lame-duck period raise questions of legitimacy. It undermines Indonesian voters' rights to have policies made according to the majority's wishes by the next government and eliminates deliberation and consultation, crucial elements of democracy. While unlikely, Parliament and the government could enact a new law prohibiting the DPR from creating new laws during future lame-duck periods. The eight-month gap between the 14 February elections and the late October inauguration of Prabowo's administration has also allowed this to happen. If the lame-duck period can be shortened to just a few weeks, there will be less opportunity for future outgoing governments and the DPR to enact controversial legal regulations without public deliberation.

[Made Supriatma is a Visiting Fellow in the Indonesia Studies Programme, ISEAS – Yusof Ishak Institute. Made's research focus is on Indonesian politics, civil-military relations, and ethnic/identity politics and he is also a freelance journalist.]

Source: https://fulcrum.sg/indonesias-lame-duck-parliamentary-session-productive-but-damaging-democracy