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The Indonesian Constitutional Court and the subversion of democracy: The court removes minimum age requirements for the president's son

iConnect Blog - November 9, 2023

Stefanus Hendrianto – In the last three years, a major question of speculation in Indonesian politics has been whether President Joko "Jokowi" Widodo will stay in power longer after the end of his second term. The first speculation was that Jokowi would try to push for a constitutional amendment allowing him to run for a third term in office.[1] When the attempt for a constitutional amendment failed, the new speculation was to postpone the presidential election.[2] The latter speculation did not materialize either. Throughout 2023, the latest speculation emerged that Jokowi would designate his 36-year-old son Gibran Rakabuming Raka to join the presidential ticket. Nevertheless, Gibran was seemingly ineligible because he is under the legal minimum age of 40 for presidential and vice-presidential candidates, which is specified by statute. Despite the impediment, Jokowi (through his supporters) turned to the Constitutional Court, which issued a ruling on October 16, 2023, that paved the way for Jokowi's eldest son to run for vice president in the 2024 Presidential election. The Court's decision would potentially secure President Jokowi's legacy for a long period of time, if his eldest son becomes the next Vice President, as well as a potential future president.

The court has become an unfunny joke

In the last five years, under the chairmanship of Anwar Usman, the Indonesian Constitutional Court has become a joke. Usman's mode of judicial leadership is to top each scandal with a bigger scandal, and he is very good at leading the Court in this direction. As I explained in this blog earlier, in the previous term, Usman created a massive scandal when he married President Jokowi's sister.[3] After this marriage of convenience, the Court was hit by another scandal, in which the House of Representatives removed Justice Aswanto from the bench, and Usman did nothing to defend the integrity of the Court. The removal of Justice Aswanto then was topped by a new scandal, in which the newly appointed Justice Guntur Hamzah made editorial changes to the Court's decisions concerning the removal of his predecessor. While the public is still catching its breath from the scandal of the breach of judicial ethics, a new scandal emerged concerning the leak of the Court's decision. But that is not the end of the story. Recently, Usman created a new scandal by refusing to recuse himself from the Court's decision that involved his nephew, who aspired to join the presidential ticket.

At the beginning of this year, six petitions requested that the Court lower the minimum age requirement for presidential tickets from 40 to 35. According to the General Election Law, the minimum age requirement for presidential tickets is 40 years old. In the first three cases, Usman "recused" himself from deciding the case. But there are two versions of the reason behind Usman's recusal: sickness and avoiding conflict of interest. The Court only stated in its judgment that Chief Justice Anwar Usman did not participate in the deliberation process, without any clear explanation of the reason for his "recusal." It was reported that Usman had also told Deputy Chief Justice Saldi Isra that he did not participate in the deliberation meeting because he wanted to avoid conflicts of interest. [4] While each petitioner brought their own cases to the Court, obviously, the primary beneficiary of the decision is Usman's nephew, and therefore, as the Chief Justice, Usman has a conflict of interest.

The first petition was brought by the Indonesian Solidarity Party (Partai Solidaritas Indonesia – PSI), and interestingly, the Chairman of the PSI is President Jokowi's youngest son, Kaesang Pangarep. Kaesang's ascendancy to PSI's leadership caps what is probably the fastest political rise ever seen in Indonesian politics for a political novice.[5] Kaesang joined the PSI on September 23, 2023, but just three days after he became a member of PSI, the party appointed Kaesang as the Chairman of the PSI. The Court held the deliberation meeting on September 19th, a few days before Kaesang became the Chairman of PSI. So, Usman could argue that there was no conflict of interest by the time of the deliberation meeting. Nevertheless, in their petition, the PSI has explicitly highlighted Gibran as a potential leader who has been disfranchised by the minimum age requirement under the Election Law. Therefore, a favorable decision will clearly benefit Gibran, which means that Usman has a conflict of interest.

In the first three cases, the Court, by 6-2 decisions, rejected in their entirety the petitions advocating for changes to the 40-year age minimum for presidential and vice-presidential candidates. But surprisingly, after the announcement of the decision, Anwar Usman stated that he did not recuse himself because of a conflict of interest but rather because he was sick and could not participate in deliberations.[6] Usman subsequently participated in the deliberation meeting on the last three cases, in which the Court ruled 5-4 to effectively remove the legal barrier stopping Gibran from joining the presidential ticket.

The crux of the matter is the Presidential Candidate Minimum Age IV case,[7] which was brought by a student from Solo, the hometown of President Jokowi, where Gibran was elected Mayor in 2020. The petitioner explicitly stated that he is an admirer of Gibran, that he was inspired by the success of Gibran as the Mayor of Solo, and that he would like to see Gibran become President or Vice President of the country. While the Court majority rejected the first three cases in their entirety, in the fourth case, the Court swiftly contradicted its previous rulings, introduced a new loophole, and held that those who had previously held elected office were exempt from the minimum age limit of 40 in contesting presidential elections.

The Court majority held that the Presidential Candidate Minimum Age IV case differs from the previous three cases. In the Presidential Candidate Minimum Age I case,[8] the PSI asked the Court to lower the minimum age requirement to 35. In the Presidential Candidate Minimum Age II & III cases,[9] the petitioners asked the Court to provide an exception for those who have experience in government service to be exempted from the minimum age requirements for President or Vice President. The Court explained that those petitions were ambiguous because there is no clear criterion on who will get the exemption, whether an elected official or an appointed official. Nevertheless, in the Presidential Candidate Minimum Age IV, the petitioner explicitly asked the Court to declare that those who had held elected office at the provincial or regency level to be exempted from the minimum age requirement. In a 5-4 decision, the Court accepted the petitioner's argument and ruled that those who had previously held or are currently holding an elected office, including the head of regional government, to be exempt from the age limit.

A new reality in Indonesian democracy

After the Court issued the decision, Gibran joined the presidential ticket of Defense Minister Prabowo Subianto as his running mate. The move would both give Subianto a seal of approval from the outgoing President, as well as securing Jokowi's legacy in the long run. [10] Subianto is a notorious retired three-star general and former son-in-law of General Soeharto, the strong man who ruled Indonesia for thirty-two years. By giving his blessing to the Subianto-Gibran ticket, Jokowi has made a bold move to support the return of the remnant of the New Order regime and secure a foothold for his family in the Indonesian political system for years to come.

At this point in history, Indonesians have a difficult choice to make; they can either wake up and realize that President Jokowi has compromised the integrity of every democratic institution that the country has built since the fall of the authoritarian regime twenty-five years ago. Or they can assume that everyone who is pointing out at the end of democracy is a disgruntled opposition group who wants to block the nomination of Gibran, as his supporters have been propagating.[11] The former is a bitter pill to swallow, and it is easier for Indonesians to swallow the latter story, rather than to contend with the true ramifications of the former story.

The Indonesian experience shows that the Court itself is actively undertaking democratic changes to kowtow to President Jokowi. The Court, under the leadership of Anwar Usman, chose to engage in a robust judicial review, which involved no deference to legislators. Justice Enny Nurbaningsih, in her concurring opinion, explained that while the Court respects the legislators' decision to set the minimum age for a presidential candidate, it is necessary for the Court to provide an alternative option by allowing those who held elected office to be exempted from the requirement. In other words, the Court was providing an alternative for President Jokowi with the means of achieving his authoritarian agenda without being bound by the constraints of separation of powers or even formal limits on constitutional amendment.

By the time of the writing of this essay, the Constitutional Court ethics council had ordered the removal of Anwar Usman from his post as Chief Justice after finding him guilty of ethics violations when he swayed the decision that effectively cleared the way for his nephew to run for vice president.[12] Nevertheless, the Ethics Council only has the authority to investigate ethics violations of justices, and there is no impeachment mechanism for the justices. Therefore, following the verdict, Usman still retains his position as a justice, although he is now barred from adjudicating election disputes with potential conflicts of interest until he retires from the bench in 2026. The demotion of Anwar Usman might be a consolation prize for the pro-democratic movement; nevertheless, the ethics verdict did not alter the validity of the Court's ruling on the age limit. President Jokowi has strengthened his position on the political chessboard by nominating his eldest son as the Vice-Presidential Candidate. Whether Jokowi can now secure his legacy for an extended period will depend on the level of votes that the Subianto-Gibran/Jokowi ticket can get in the 2024 presidential election.

Suggested citation: Stefanus Hendrianto, The Indonesian Constitutional Court and the Subversion of Democracy: The Court Removes Minimum Age Requirements for the President's Son, Int'l J. Const. L. Blog, Nov. 9, 2023, at: http://www.iconnectblog.com/the-indonesian-constitutional-court-and-the-subversion-of-democracy-the-court-removes-minimum-age-requirements-for-the-presidents-son/.

1. 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/

2. Stefanus Hendrianto, After Twenty Years of the 2002 Indonesian "Constitution": Will President Jokowi Stay in Power Longer? Int'l J. Const. L. Blog, Apr. 16, 2023, at: http://www.iconnectblog.com/2023/04/after-twenty-years-of-the-2002-indonesian-constitution-will-president-jokowi-stay-in-power-longer/

3. Stefanus Hendrianto, The Decline of the Indonesian Constitutional Court, Int'l J. Const. L. Blog, Aug. 25, 2023, at: http://www.iconnectblog.com/the-decline-of-the-indonesian-constitutional-court/

4. Nur Janti, "Ethics council says chief justice may have lied". The Jakarta Post, November 2, 2003. https://www.thejakartapost.com/indonesia/2023/11/02/ethics-council-says-chief-justice-may-have-lied.html.

5. Yoes C Kenawas, "Jokowi's dynasty-building risks tensions with his PDI-P party base," East Asia Forum, October 22, 2023.https://www.eastasiaforum.org/2023/10/22/jokowis-dynasty-building-risks-tensions-with-his-pdi-p-party-base/

6. VOI, Anwar Usman Oaths It Really Hurts When He Is Absent From RPH 3 Cases: I Take Medicine Then Sleep, November 3, 2023. https://voi.id/en/news/326217

7. Presidential Candidate Minimum Age IV case, the Constitutional Court Decision No. 90/PUU-XXI/2023.

8. Presidential Candidate Minimum Age I case, the Constitutional Court Decision No. 29/PUU-XXI/2023

9. Presidential Candidate Minimum Age II case, the Constitutional Court Decision No. 51/PUU-XXI/2023, and Presidential Candidate Minimum Age III case, the Constitutional Court Decision No. 55/PUU-XXI/2023.

10. East Asia Forum, "Jokowi takes a huge chance with son's political elevation," October 23, 2023.https://www.eastasiaforum.org/2023/10/23/jokowi-takes-a-huge-chance-with-sons-political-elevation/

11. Jawa Pos. "Elite Gerindra Duga Ada Operasi Rahasia Untuk Menjegal Gibran Jadi Cawapres," November 3rd, 2003. https://www.jawapos.com/nasional/013215796/elite-gerindra-duga-ada-operasi-rahasia-untuk-menjegal-gibran-jadi-cawapres

12. Nur Janti, "Ethics council removes chief justice Anwar," November 7, 2003, The Jakarta Post. https://www.thejakartapost.com/indonesia/2023/11/07/breaking-ethics-council-removes-chief-justice-anwar.html.

Source: http://www.iconnectblog.com/the-indonesian-constitutional-court-and-the-subversion-of-democracy-the-court-removes-minimum-age-requirements-for-the-presidents-son