The Constitutional Court: promoting corruption?

Author

Denny Indrayana is the former deputy minister of justice and human rights of the Republic of Indonesia and an internationally-recognised anti-corruption campaigner. Denny is a senior associate of the Centre for Indonesian Law, Islam and Society. He received his PhD from Melbourne Law School in 2005.

As one of the key institutions of Indonesian democracy, the Constitutional Court must be careful that its decisions promote further democratisation. Photo by Flickr user Charles Wiriawan.
As one of the key institutions of Indonesian democracy, the Constitutional Court must be careful that its decisions promote further democratisation. Photo by Flickr user Charles Wiriawan.

 

Last September, when the House of Representatives (DPR) passed a law scrapping direct elections for regional leaders, placing the power to select leaders in the hands of local legislatures, the backlash from voters was fierce. Most of it was directed at President Susilo Bambang Yudhoyono. Following public humiliation on Twitter, Yudhoyono did the right thing. He safeguarded direct elections by publishing an emergency regulation (perpu) to reverse the DPR’s decision.

 

With a few alterations from the DPR, Yudhoyono’s regulation became Law No. 8 of 2015 on Regional Elections. But the fight over the details of regional elections continued, and ended up before the Constitutional Court. In early July, the Court handed down three controversial decisions: it cancelled a provision restricting family members of incumbents from running for leadership positions; it decided that candidates will now be required to resign from the legislature before running for office; and it cancelled a provision that banned convicted criminals from running. These decisions will have serious implications for the conduct of regional elections, and the future of Indonesian democracy.

Restrictions on family members lifted

Article 5 of the 2015 Regional Elections Law states that a person can nominate as a candidate for a regional election provided that “there are no conflicts of interest with the incumbent”. Having a familial relationship with the incumbent is considered a conflict of interest, unless “there has been a break of one [five year] term”. The Constitutional Court decided that this restriction was discriminatory, because it limited the right to be a candidate as guaranteed by the 1945 Constitution, the Human Rights Law and the International Covenant on Civil and Political Rights (ratified by Indonesia in 2006). The court believed what was really needed was improved control to ensure officials did not abuse their power, not denying the rights of their relatives.

 

On the face of it, the court’s decision seems reasonable. By saying that control needed to be improved, however, the court neglected the fact that the limitation on family members competing was in itself a form of control. Without such norms, misconduct can, and often does, occur. The Ministry of Home Affairs has recorded that there are more than 50 areas across Indonesia where members of the same family hold leadership positions. This type of dynastic politics breeds corruption and weakens our democracy.

 

The Corruption Eradication Commission has already arrested a number of governors and district heads, who along with members of their families, have built political dynasties and engaged in corruption. Limiting the families of incumbents to competing only after a five year term has passed is a necessary legal policy to build healthy local democracy in Indonesia, and does not conflict with the Constitution.

 

The Court has not been consistent in its approach to limitations on holding political positions. It has previously ruled that to ensure the General Elections Commission (KPU) maintains its independence, prospective members must not have been a member of a political party for the previous five years. In relation to the Constitutional Court itself, judge candidates in the court must wait seven years after leaving political parties before being eligible. Striking down the restriction on candidates with familial ties to incumbents is not in line with its previous decisions.

Candidates required to resign

In the regional elections law passed in March, civil servants, members of the military, the police, or employees in state owned enterprises were required to resign from their positions if they wished to run as a candidate for a regional leadership position. Meanwhile, candidates serving in the national or local legislatures needed only inform their leadership about their intention to run. In its July decision, the Constitutional Court decided that this difference was discriminatory, and ruled that lawmakers should also have to resign.

 

The Court’s reasoning in this instance was sound. In the process of formulating the law, members of the DPR and Regional Representatives Council (DPD) designed the rules to benefit themselves. The Constitutional Court’s decision forcing them to resign is fair, and will help to ensure an honest and just regional elections process, in line with the mandate of the 1945 Constitution.

Ex-convicts allowed to run

A day after the decisions on regional heads, the Constitutional Court struck down a prohibition on running for office for people convicted of an offence carrying a sentence of five years or more. The court stated that it believed that the ban should not apply to former criminals “who openly and honestly reveal to the public that he or she is a former criminal.” The Constitutional Court’s decision revised a previous decision, which, on top of requiring prospective candidates to admit to their previous crimes, forced them to wait for at least five years after serving their sentence before running for office, and banned repeat offenders, recidivists, from running at all.

 

It is true that criminals should not have their political rights restricted. When it comes to elections in Indonesia, however, the restriction on former criminals running for local leadership positions can be justified, given the light sentences often handed down to corruption convicts, who could easily run for office again.

 

As the Constitutional Court establishes itself as a critical component of our democracy, a major challenge is ensuring its decision making process is consistent. If there are any significant changes to established rules, the legal justification must be clear. As a watchdog of democracy, the Court needs to be careful that its decisions promote democratisation, and do not create new norms that foster corruption.