Indonesia’s Constitutional Court Ruling Fuels Conflict of Interest Concerns: Political Dynasties on the Rise?

On October 16, 2023, the Constitutional Court of Indonesia granted a petition on a judicial review of article 169 letter q of Law Number 7 of 2017 on General Elections (in other words: the Indonesian Electoral Law), specifically addressing the age requirements for presidential and vice-presidential nominations, allowing those who has not reached 40 years of age to run in a presidential elections if experienced in elected offices, including local government. This decision has far-reaching implications for the democratic landscape of Indonesia, prompting concerns about the Court’s independence and credibility.

Thirteen applications were submitted for constitutional review, with applicants representing political parties, local government incumbents, and university students. However, only one petition, advocating for the addition of specific requirements related to experience in local government, was granted by the Constitutional Court.

The granted petition paved the way for Gibran Rakabuming Raka, the 36-year-old Mayor of Surakarta City, Central Java Province, and the eldest son of President Joko “Jokowi” Widodo, to be considered as a candidate in the 2024 Presidential Election. Selected as the vice-presidential candidate by former Lieutenant-General Prabowo Subianto, who is the current Minister of Defence, as well as the Chairman of Great Indonesia Movement Party (GERINDRA), Gibran’s candidacy is a symbol of the complexity of political alliances and familial connections that shape Indonesian politics.

The decision, delivered by the Chief Justice of the Constitutional Court, Anwar Usman, holds particular significance due to familial connections. Anwar Usman is the husband of Jokowi’s younger sister, and, consequently, Gibran’s uncle. Among the nine constitutional justices, five granted the request, while four rejected it. Justice Saldi Isra, in a dissenting opinion, criticised the court’s inconsistency in its considerations.

The decision has contributed to a decline in public trust in the Constitutional Court, with perceptions that judicial power may be influenced by the executive and legislative branches. The court’s credibility as a state institution has been tarnished, as it appears to have been exploited by individuals seeking to perpetuate a ruling dynasty.

Anomalous decision

In a multitude of petitions seeking the examination of laws concerning the age prerequisites for public officials, the Constitutional Court has consistently designated such matters under the purview of ‘open legal policy’. This implies that the court maintains the stance that age requirements for public officeholders fall entirely within the lawmakers—legislative and president—domain, provided they do not contravene the 1945 Constitution.

The Constitutional Court’s steadfast position on age requisites for public officials is evident through various past decisions, encompassing issues such as the age criteria for regional heads, leaders of the anticorruption agency, Constitutional Court Justices, ad-hoc judges in different courts, and officials at the village level, among others.

Concerning the Constitutional Court’s stance on ‘open legal policy’, several decisions underscore that, in principle, the court refrains from nullifying provisions or norms categorized as such. These decisions outline specific conditions under which the Constitutional Court may consider annulling a norm identified as open legal policy. Such conditions include instances where the legislative authority is exceeded, there is an abuse of authority, clear contradiction with the 1945 Constitution, violations of morality, rationality, and intolerable injustice, institutional issues, impracticality leading to legal deadlock, and discrimination.

The recent decision on the Elections Law introduces an anomaly as the Constitutional Court deviates from its historical categorization of age requirements as open legal policy. Notably, the court’s deliberations do not elucidate any specific conditions warranting the annulment or modification of a legislative policy choice—in this case, the age criteria for presidential and vice-presidential candidates, alongside additional requirements.

Institutional disaster

In the context of the 2024 Concurrent Elections, the timing of the court’s decision, just three days before the registration of presidential and vice-presidential candidacy, raises concerns about the fairness of the electoral process. This timeframe surely limits the opportunities for other qualified individuals, especially young leaders with experience in elected positions, to adequately prepare for the upcoming elections.

In the aftermath of the decision, civil society groups have called for the to activate the so-called Honorary Council, an ethics panel set up by the Constitutional Court to investigate ethics violation of its justices, and filed reports against constitutional judges for alleged ethical violations (see next paragraph). Among the 21 reported cases, four specifically targeted Chief Justice Anwar Usman. The Honorary Council, while stating its lack of authority to assess the judicial review decision, found Anwar Usman guilty of severe ethical violations.

The Honorary Council identified five fundamental ethical principles violated by Anwar Usman: impartiality, integrity, competence and equality, independence, and propriety. The conflict of interest’s notion was proven as Anwar Usman actively bestowed a privilege for his nephew to be eligible as a vice-presidential candidate. He deliberately welcomed the external intervention in the decision-making process. His leadership was deemed not optimal and his supportive comments on an on-going case was an infringement of the code of conduct.

Consequently, Anwar Usman faced sanctions, including dismissal from the position of Chief Justice, and was prohibited from participating in the examination and decision-making of election disputes cases to avoid potential conflicts of interest.

The Honorary Council’s decision not only emphasised Anwar Usman’s ethical breaches but also underscored the broader challenges within the Constitutional Court. The court’s inconsistency in handling similar cases and its perceived alignment with the wishes of the government and legislature have compromised its role as a guardian of the constitution.

The Constitutional Court’s decision on the presidential nomination requirements has led to a series of ethical and political consequences. As Indonesia navigates its democratic path, ensuring the independence and integrity of key institutions, particularly the judiciary, is crucial. The controversies surrounding this decision highlight the need for a comprehensive examination of the nation’s constitutional framework and the establishment of safeguards to prevent the exploitation of legal processes for political gain.

Ongoing and future challenges

After Gibran officially became the vice-presidential candidate, allegations of conflicts of interest and potential legal violations by state officials seem to have become a daily spectacle for the public. Ministers in Jokowi’s cabinet from political parties supporting Prabowo-Gibran have repeatedly been caught campaigning while serving as ministers. However, under the Elections Law, state officials, including ministers, must take leave if they wish to campaign for themselves or for a candidate they support.

The display of conflicts of interest is not limited to ministers, but also President Jokowi. At the end of last January, Jokowi made a statement to the press that the president has the right to campaign and take sides. This statement indicates an impression of inconsistency in his stance, considering that a few months earlier, he warned all officials at the central and regional levels to remain neutral and show no bias towards any candidate.

Furthermore, not only provided the social assistance (such as non-cash food assistance and staple food card) to the residents he visited while on campaign, also the direct cash transfer program, which has been ongoing, received additional funding, reaching up to IDR 11 trillion (700 million US Dolars!). Coordinating Minister for Economic Affairs Airlangga Hartarto, who is also the Chairman of GOLKAR Party supporting Prabowo-Gibran, stated that the cash assistance would be given along with a 10-kilogram rice aid. The extension of the distribution period aligns strategically with the month of June, coinciding with the anticipated second round of the presidential election, provided no candidate secures a decisive victory exceeding 50 percent in the initial February round.

Few days before election day, various survey results show figures close to 50 percent for Prabowo-Gibran, and each in the range of 20-24 percent for the other two contenders, Anies Baswedan–Muhaimin Iskandar, and Ganjar Pranowo–Mahfud MD.

Although the actual election results on February 14 may deviate from the projections gained from surveys, Indonesian voters should brace for a changing democratic scenario marked by declining governance standards. The rise of presidential and vice-presidential candidates through a constitutionally questionable process, while also sustaining Jokowi’s political dynasty, raises serious concerns about the path of Indonesian democracy.