I·CONnect – The Indonesian Constitutional Court and the Crisis of the 2019 Presidential Election

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–Stefanus Hendrianto, Boston College

After many months of speculation, the candidates for the 2019 Indonesian presidential election announced their choice of running mates on August 9, 2018. The incumbent President Joko “Jokowi” Widodo, who ran on the platform of diversity and social equality, chose the 75-years-old conservative cleric Ma’ruf Amin as his running mate. Meanwhile, Jokowi’s arch nemesis, General Prabowo Subianto, will run with a young investment banker-turned-politician: Jakarta Deputy Governor Sandiaga Uno.

Both Jokowi and Subianto made a surprising twist in choosing their running mates. When Jokowi began his political career as a Mayor of Solo, he picked a Christian politician as his running mate, and he later picked a Christian of Chinese-descent as his Vice Governor of Jakarta. In the 2014 Presidential Election, he ran on the same ticket with a businessman cum politician, Jusuf Kalla. Surprisingly, for the upcoming presidential election, Jokowi picked a running mate who has a robust anti-pluralism record. Amin, who has been the chairman of Indonesia’s Ulama Council (Majelis Ulama Indonesia, or MUI), and the supreme leader of the Nahdlatul Ulama, has played a pivotal role in fueling discrimination and persecution against religious minorities in Indonesia.

Meanwhile, Subianto also made a dramatic move in picking his running mate. Subianto is a former top General, with strong links to Islamists and two major Islamist parties supported him, the Indonesian Prosperous Party (Partai Keadilan Sejahtera –PKS) and the National Mandate Party (Partai Amanat Nasional –PAN). Subianto’s coalition partners had strongly recommended that he pick an Islamic cleric as his running mate. But in the end, Subianto ignored the recommendation made by Islamist groups that he choose the celebrity Islamic preacher Abdul Somad as his running mate. Instead, Subianto chose a western-educated investor, Sandiaga Uno.

Some people are lamenting the fact that the upcoming presidential election is likely to be dull as it will be merely a rematch of the 2014 election when the then-political outsider Jokowi defeated Subianto, who has deep ties to Indonesia’s business and military elite. But the primary problem is that the 2019 presidential election offers no real choice to the people. On the one hand, as Jokowi picked a hard-line cleric as his running mate, many of his supporters are feeling conflicted about the decisions of a man who rode into office back in 2014 as a reformer and the advocate of pluralism. Thus, they are debating whether to sit out the election to protest against a vice- presidential pick who is widely known for his many abusive fatwas against minorities. On the other hand, the Subianto-Uno ticket does not offer a better choice. Subianto himself is linked with past human rights abuses, while his running mate also has a tainted record. Uno played a pivotal role plotting the campaign to oust then-incumbent Governor of Jakarta Basuki Tjahaya Purnama in the 2017 gubernatorial election, which was marred by divisive, sectarian, and racial rhetoric.

The lack of a credible contender in next year’s election would, indeed, raise questions about Indonesia’s young democracy. Analysts believe that political parties focusing on patronage-style politics rather than the pursuit of an ideological agenda or reform have led to a dearth of potential presidential candidates. But the biggest culprit is a Constitutional Court that both created the current crisis and failed to intervene to resolve it.

The Failure of the Indonesian Constitutional Court

Blame may lie with the Indonesian Constitutional Court because it issued a decision that precipitated the current crisis, but the Court refused to intervene when the constitutional stakeholders ask the justices to resolve the crisis. The origin of the crisis is the Court’s decision on The General Election Schedule case,[1] which I have analyzed in an earlier post on this blog.[2] In a nutshell, on January 23, 2014, the Court decided to strike down the provision in the General Election Law that decreed the legislative election and presidential elections be scheduled three months apart. The Court held that the parliamentary election and presidential election must be conducted simultaneously. Nevertheless, the Court ruled that the decision would only be applied in the 2019 general election.

Despite its ruling on the concurrent election, the Court deferred to the legislature in establishing the process for nomination of a presidential candidate. Under the previous arrangement, a presidential candidate could be nominated by a political party or a coalition of political parties who hold at least 20 percent of seats in the House of Representative or have obtained at least 25 percent of the popular vote in the legislative election. The parliamentary and presidential elections were then held at least three months apart, and political parties could not nominate a presidential candidate until they found out the official results of the legislative election. But since the Court rendered a decision that mandated a concurent election, logically, political parties must now nominate their candidates before the parliamentary election. The Court refused to scrap the 20 and 25 percent presidential threshold and held that the legislature has authority to decide the minimum percentage for vote or seats as a prerequisite for political parties to nominate a presidential candidate.[3]

As the deadline for the implementation of the Court’s decision was approaching, the ruling coalition parties, under the command of President Jokowi’s Indonesian Democratic Party of Struggle (PDI-P), pushed to keep the 20 and 25 percent requirement. After a protracted and heated plenary meeting, on July 21, 2017, the House of Representatives (DPR) approved a bill that maintains minimum percentages of support required by political parties to nominate presidential candidates. Nevertheless, and deeply problematically, lawmakers stipulated that the 20 and 25 percent requirement must now be based on the official result of the last general election (in this case, the 2014 General Election).[4] Despite its flaws, President Jokowi immediately signed the bill into law.

Soon after President Jokowi signed the bill, several political parties and NGOs filed petitions with the Constitutional Court to challenge the law. One of the significant cases is the Idaman Party case.[5] The claimant in that case, the Benign Islam Party (Partai Idaman), argued that the provisions on the presidential threshold were discriminatory against new political parties. Moreover, the claimants across many of these cases posited that the presidential threshold would offer no real choice of presidential candidates. The Court rejected the claimants’ petitions and issued several holdings: first, the Court held that the 20 and 25 percent requirement has no relation whatsoever with the general election schedule. Second, the Court held that the basis for the 20 and 25 percent requirement is to strengthen the presidential system. Third, the Court dismissed the claimant’s argument and stated the claimant was merely speculating that the presidential threshold will offer the voters with no true choice.

What was most jarring about the Idaman Party case is that the Court ignored its own ruling in the General Election Schedule case, especially about the presidential system. In the General Election Schedule case, the Court ruled that where there is a separate schedule for the legislative and executive general elections and the 20 and 25 percent requirements exist, a president-elect could be held hostage to the interest of the political parties that nominated him. The Court then stated: “In the last two presidential elections (2004 and 2009), which occurred after the legislative election, a presidential candidate had to offer political compromises to secure his nomination.”[6] The Court then held that such political compromises would give political parties too much leverage over a president-elect, and, consequently, would undermine the presidential system. Interestingly, in the Idaman Party case, the Court issued a contradictory holding, now arguing that the same requirements would actually strengthen the presidential system. Moreover, the Court’s holding in the Idaman Party case that the 20 and 25 percent requirement has no relationship with the general election schedule is implausible. These requirements made some sense under the old system: earlier legislative elections allowed political actors to await those results before carrying out presidential nominations. But the system makes much less sense now, when it must be based on outdated legislative election results rather than on new ones.

The Unintended Consequences

Now back to the recent debacle in the nomination process for the upcoming 2019 presidential election. Considering that the new General Election Law stipulates that the 20 and 25 percent requirement must be based on the 2014 General Election result, no political parties are able to nominate candidates unilaterally. Jokowi’s party, PDI-P, had to form a coalition with nine political parties, including the longtime player, the Golkar Party, and the traditional Islamist based party, the National Awakening Party (PKB). Initially, Jokowi wanted to pick Mohammad Mahfud, a former Chief Justice of Constitutional Court, as his running mate. But, had Jokowi decided to choose Mahfud, he would have risked losing support from key allies like Golkar. Mahfud was the Minister of Justice when then-President Abdurrahman Wahid attempted to disband Golkar in 2001, and so Golkar still holds a grudge against Mahfud, mindful of his role in trying to disband the former ruling party. In the meantime, Jokowi’s party – PDI-P — also opposed Mahfud’s nomination, fearing he would make a run for the presidency himself in 2024 when the party’s own heir apparent, Social Affairs Coordinating Minister Puan Maharani, is expected to be a candidate. Maharani is the daughter of former President Megawati Sukarnoputri, the current Chairwoman of PDI-P and the granddaughter of the first President of Indonesia, Sukarno.

Finally, Jokowi decided on the conservative cleric Ma’ruf Amin as a compromise running mate for his coalition. Amin, who is the supreme leader of the Nahdlatul Ulama, will get support from PKB. At the same time, the naming of 75-year-old Ma’ruf may please Golkar and PDI-P. Given his age, Amin will not be a threat for the 2024 election. The irony is that Mahfud was the Chief Justice who issued the decision in the General Election Schedule case in 2014, but four years later, he had to swallow a bitter pill from his own judgment, when Jokowi dumped him as a potential running mate under pressure from Jokowi’s coalition partners.

Prabowo also chose Uno as a way out of a deadlock in a discussion between his coalition partners. The driving forces of Prabowo’s coalition are three major parties: the National Mandate Party (PAN), the Prosperous Justice Party (PKS), and the Demokrat (the Democrat Party). The Islamists PAN and PKS wanted Prabowo to pick a running mate based on the recommendation of the clerics grouped under the political front, the National Movement to Safeguard the Ulamas’ Fatwa (GNPF-U). But the Democrat Party wanted the son of the former President, Susilo Bambang Yudhoyono, to be Prabowo’s running mate. The Democrat Party’s crown prince, Agus Yudhoyono (known as “AHY”) might be able to attract younger voters, but his figure is not acceptable to Prabowo’s Islamic allies.  Prabowo thus picked a compromise candidate, Sandiaga Uno, a successful businessman who may be beneficial regarding financial support for the campaign, and also has a relatively young image that might attract younger voters.

As the crisis over the presidential candidacy was looming this summer, some political activists went back to the Court and filed a new petition against the threshold for presidential nomination.[7] They were hoping that the Court would issue a decision before the deadline for nomination of a presidential candidate on August 10. But the Court did not see any sense of urgency and refused to release a decision before August 10. We cannot know when the Court will issue its decision and whatever the result is, it will be irrelevant for the upcoming presidential election. The bottom line is that the Indonesian Constitutional Court has transformed itself into a non-interventionist Court. Unlike the first and second generation Court that played a heroic and interventionist role,[8] the current Court prefers to stay in the background and refuses to intervene even when necessary to resolve a political crisis. The Court’s inaction has contributed to the longstanding structural flaws within Indonesia’s electoral system.

Suggested citation: Stefanus Hendrianto, The Indonesian Constitutional Court and the Crisis of the 2019 Presidential Election, Int’l J. Const. L. Blog, Sept. 19, 2018, at: http://www.iconnectblog.com/2018/09/the-indonesian-constitutional-court-and-the-crisis-of-the-2019-presidential-election/

[1] The Constitutional Court Decision No. 14/PUU-XI/2013 (hereinafter the General Election Schedule case).

[2] Stefanus Hendrianto, The Indonesian General Election and the “Weak” Constitutional Court, Int’l J. Const. L. Blog, June 4, 2014, available at: http://www.iconnectblog.com/2014/06/the-indonesian-general-election-and-the-weak-constitutional-court.

[3] The General Election Schedule case, Para 3.18.

[4] Law No. 7 of 2017 on General Election, art. 222.

[5] The Constitutional Court Decision No. 53/PUU-XV/2017 (the Idaman Party case).

[6] The General Election Schedule case, para. 3.17.

[7] See Case No. 49/PUU-XVI/2018 (hereinafter Denny Indrayana case). The petitioners are several political activists chiefly led by the former Deputy Minister of Justice, Denny Indrayana.

[8] See Stefanus Hendrianto, Law and Politics of Constitutional Court: Indonesia and the Search for Judicial Heroes (Routledge, 2018).

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