Melissa Crouch – The attention of much of the world is fixated on COVID-19: the daily infection rates, the number of fatalities and the ebb and flow of restrictions on freedoms in the name of public health.In the midst of all this, however, some governments around the world are using COVID-19 to protect their own interests and expand their power at the expense of constitutional democracy.
Indonesia, one of our largest neighbours, is no exception. Its handling of the COVID-19 crisis remains troubling. The archipelago has had over 210,000 confirmed cases and more than 8500 deaths. Indonesia continues to experience new daily records in the number of confirmed cases. But the rate of infection is feared to be even higher than reported.
Like other countries, there has been fierce public debate in Indonesia over whether, how and when the government should respond to the pandemic. Tensions have played out between levels of government, with inaction on the part of the central government prompting regional governments to take measures into their own hands.
Despite Indonesia's daily number of confirmed cases remaining high, the central government has instead seen fit to focus on a range of other issues. While economic concerns are understandable given Indonesia's past experience of the 1997 Asian Financial Crisis, measures to address them seem to be accompanied by opportunistic efforts to undermine democracy.
For example, in the name of boosting jobs and facilitating business, a proposed omnibus bill would negatively affect labor rights and relax environmental protections. This fits with the government's mantra of economic growth and would benefit the business interests that back the President.
In addition, the government has hurriedly amended the powers of the most respected and trusted public institution in all Indonesia – the Constitutional Court.
The centrepiece of the democratic reform efforts post-1998, the establishment of the Constitutional Court was a striking achievement. Never before had there been an independent judicial body in Indonesia with the power of judicial review to protect individual rights. The power of a court to protect rights was a long-held ambition finally realised for legal activists.
For more than 18 years, the Constitutional Court has been the people's court. It has opened its doors to a wide range of people and interest groups – non-government organisations, activists and advocates, religious groups and concerned citizens. It has heard cases concerning a wide range of rights protected in the Indonesian Constitution on matters ranging from the right to education to minority rights, the environment and gender.
Sure, the court has had its ups and downs, and has not always decided in ways that support the protection of the rights of those most vulnerable. It has also been tarnished by the rampant corruption that infiltrates every institution and agency in Indonesia, with two of its judges being sentenced for major corruption offences.
Yet the court remains as one of the last public forums for the assertion of rights and constitutional complaints against the government. The freedom to bring constitutional complaints in an open public process remains important to democracy in Indonesia. Especially at a time when the government is targeting civil society leaders and academics in an attempt to silence critics of the government's handling of the COVID-19 crisis.
The amendments to the Constitutional Court raise the minimum age of judges and extends their tenure on the bench. This favours sitting judges, including the chief justice, who has been subject to judicial misconduct allegations. It potentially predisposes them towards the government and its laws. The rushed nature of the change and lack of consultation has heightened suspicions around the amendments.
These changes come in the wake of many other worrying legal and political developments. Last year the parliament reduced the powers and compromised the independence of another key trusted institution – the Anti-Corruption Commission.
The weakening, if not capture, of these two institutional bastions of democracy is a red flag for the state of constitutional democracy.
Slowly but surely the erosion of constitutional democracy, already evident pre-COVID-19, has accelerated during the COVID-19 pandemic.
Indonesia is dealing with twin crises of a pandemic and the decline of constitutional democracy, with one crisis feeding off the failings of the other.
These worrying trends matter to Australia. Australia must assist and support Indonesia in its efforts to combat COVID19. But more importantly, we must not overlook the other crisis, the crisis of democratic governance.
[Melissa Crouch is an associate professor and associate dean research at UNSW Law School.]