A twist in Indonesia's presidential election does not bode well for the country’s fragile democracy

On Valentine’s Day next year, Indonesia will go to the polls for its most important election in ten years.

The incumbent president, Joko Widodo (known as “Jokowi”), has built a broad supporting coalition of political parties and oligarchs, which has delivered stability but also power and wealth for a small elite. He has also presided over a period of increasing democratic regression, marked by an erosion of the independence of institutions like the anti-corruption commission, inaction on claims of human rights violations, and litigation to silence critics of the government.

Despite this, Jokowi remains immensely popular, with some opinion polls indicating that 80% of citizens support him. He would likely win again if he ran. However, after two five-year terms, he is constitutionally barred from a third, and proposals to change the rules to keep him in the palace have failed.

This is of deep concern to his political allies, who are reluctant to lose their privileged positions. So, for many months, politicians and oligarchs have been manoeuvring to find a way to keep their grip on power.

A former rival turned ally

Their solution now seems to be aligning behind the minister for defence, Prabowo Subianto.

At first glance, he is an unlikely choice: a cashiered general and former son-in-law of the authoritarian Soeharto, who ruled Indonesia for more than three decades. Prabowo has been accused of human rights abuses, including in Timor and Papua, and alleged involvement in the abduction and murders of activists around the time of the collapse of Soeharto’s New Order regime in 1998.

Prabowo never faced trial, although several of his men were tried and convicted. The allegations against him meant he was, for years, denied a visa to enter the US. He has denied the allegations against him.

More recently, Prabowo ran against Jokowi in two bitterly fought election campaigns (2014 and 2019), which polarised Indonesia.

However, Prabowo is a member of an elite family, and, despite his previous election losses, can be expected to poll well. After he lost in 2019, Jokowi effectively co-opted him by offering him a seat in cabinet. He has been a compliant member of the administration ever since. Now he is Jokowi’s preferred candidate.

After months of uncertainty, Jokowi and his circle have come out strongly in support for Prabowo, with Jokowi’s son, Gibran Rakabuming Raka, announced as his vice presidential running mate in recent days.

A controversial court decision

This has sparked enormous controversy, for two reasons.

First, Jokowi is a member of former President Megawati Soekarnoputri’s PDI-P party, which backs another candidate, Ganjar Pranowo. Prabowo and Ganjar are running almost neck and neck, with Ganjar sometimes slightly ahead. If Jokowi’s supporters now give their votes to Prabowo, this might be enough to beat Ganjar.

Megawati is sure to see this as a massive betrayal by Jokowi, and she and her party will do whatever they can to stop Prabowo and Gibran.

Second, the 2017 Election Law says candidates for presidential or vice presidential office must be at least 40 years old. Gibran is only 36. Last week, this obstacle was conveniently overcome when the Constitutional Court ruled there was an exception to this age limit if the candidate had previously held elected office as a regional head. Gibran happens to be the mayor of Solo and so is now eligible.

Knocking out a statutory age limit for candidates might not seem a big issue, but this case has caused a huge scandal in Indonesia.

The problem is the court’s chief justice, Anwar Usman, also happens to be Jokowi’s brother-in-law and Gibran’s uncle. The conflict of interest is obvious. But Anwar refused to recuse himself.

This was significant because the case was decided by five judges to four. Anwar had cast the deciding vote.

Reversal of three similar cases

Legally, the most controversial part of the decision is its reversal of three decisions the court read out earlier on the same day about precisely the same minimum age requirement. In those cases, the court had maintained the minimum age limit for presidential and vice presidential candidates.

As one of the dissenting judges in Gibran’s case pointed out, Anwar did not attend a meeting of judges last month to decide the three other cases. In that meeting, the judges voted by a majority of six to two to maintain the minimum age limit.

However, two days later, Anwar did attend a meeting to decide the Gibran case, during which the judges voted to remove the requirement. As dissenting judge Arief Hidayat wrote in his judgment, Anwar claimed he had not attended the first meeting to discuss the three other cases because of “health reasons”, not out of a conflict of interest.

The court’s decisions in all four cases were read out the same day, and, to the surprise of many, the final decision overruled the others.

The implication here is clear. When the chief justice did not attend the judges’ meeting on the initial three cases, the court was clearly in favour of maintaining the minimum age (and thus blocking Gibran). But when he did attend the final meeting, a number of judges switched sides and changed their decisions.

This reeks of political manipulation and interference. Professor Saldi Isra, perhaps the most-respected judge on the Constitutional Court for his expertise and integrity, expressed it this way in his dissenting judgment:

I am confused, I am really confused how to start my dissenting opinion. Because since setting foot in the Constitutional Court building as a Constitutional Court judge on 11 April 2017 […] this is the first time I have experienced an event so ‘extraordinarily strange’ and which can be said to defy reasonable expectation: The court changing its position and attitude in a flash.

The court has now paved the way for Gibran to run in the election. Critics joke the court’s name should be changed to “Mahkamah Keluarga” (the “Family Court”).

Undermining the court’s independence

The Constitutional Court is Indonesia’s first and only court with the power to review statutes. It was a key institution that emerged from the reforms after Soeharto’s fall. But many now see this decision as marking the end of the court’s independence. This is because it comes against a background of other obvious attempts to undermine its independence.

Earlier this year, the court’s serving deputy chief justice, Aswanto, was removed by the national legislature for perceived disloyalty. In fact, all he did – along with other judges – was raise questions about the constitutionality of a law that was enacted without adequate public participation. This just happened to be Jokowi’s signature Job Creation “Omnibus” Law.

Aswanto's removal drew accusations of legislative overreach, as prevailing laws do not grant lawmakers the authority to remove a justice. #Politics #Indonesia #TheJakartaPosthttps://t.co/cHYMmfu2gW pic.twitter.com/QdbYeZsFvQ

— Asia News Network (@asianewsnetwork) November 24, 2022

Aswanto’s removal put the court’s other judges on notice that they could share his fate if they went against the government, particularly in big cases. Many suspect Aswanto’s removal was front of mind for the judges in Gibran’s minimum age case.

While there have yet to be any polls conducted since Gibran’s entry into the race, many expect the court’s decision means Prabowo will emerge as the favourite. And if he and Gibran win, Jokowi and the elite group around him may well expect to extend their influence and privilege for years to come.

However, the decision may also spell the end of Constitutional Court as an independent check and balance on Indonesia’s increasingly powerful rulers. That does not bode well for the country’s fragile democracy.