Indonesian president-elect, Prabowo Subianto, at the Doha Economic Forum on 15 May 2024. Photo by Genta Tenri Mawangi for Antara.
During an interview at the Qatar Economic Forum in Doha last week, Indonesia’s president-elect, Prabowo Subianto, was asked to respond to concerns that democracy would further regress under his presidency. According to a Jakarta Post report, Prabowo responded: “Where are the concerns about democracy? The concerns about democracy are, I think, made up by people in the press”.
Nothing could be further from the truth. Two bills currently before the Indonesian parliament raise real concerns about the future of democracy and the rule of law in Indonesia, even before Prabowo takes office in October. If enacted, these laws remove the last real checks on the power of the presidency, assuming Prabowo can obtain and maintain the predicted coalition of political parties comprising a clear majority in the national legislature.
The first bill is an amendment to the Constitutional Court Law, early versions of which have been discussed and widely condemned in legal circles for months. The Constitutional Court has the job of holding the legislature accountable for the legislation it enacts and for resolving electoral disputes. It has performed these functions with varying degrees of success over the past two decades.
The Constitutional Court Law ranks as one of the most amended in Indonesia. The amendments appear to have been rushed through at strategic junctures. For example, the last set of amendments, enacted in 2020, extended judicial terms and were widely considered by Indonesian commentators as ‘gifts’ to ensure judicial loyalty in the face of anticipated challenges to centrepiece legislation, such as the Omnibus Law on Job Creation, amendments to the Anti-corruption Commission Law, and the new Criminal Code.
By contrast, the current bill may be an opportunistic attempt to weaken the Court when public faith in it is low, even though many of the Court’s recent decisions have largely favoured government. For example, late last year, the Court removed legislative age limits on presidential and vice-presidential candidates, which allowed Joko Widodo’s son, Gibran Rakabuming Raka, to stand as Prabowo’s running mate (causing considerable outrage, primarily among civil society).
More recently, the Court upheld Prabowo’s electoral win, in the face of challenges by opponents. But in both these decisions the Court was divided, with either three or four of the Court’s nine judges writing impassioned dissents. So, even though the Court seems to be largely under government control, these recalcitrant judges remain a threat, particularly in knife-edge cases.
Since the Constitutional Court’s establishment, the president, the national legislature and the Supreme Court have appointed three judges each. Under earlier versions of the Constitutional Court Law, judges could serve two five-year terms. Nominating institutions could reappoint their nominated judges for a second five-year term after their initial five-year term.
However, while nominating institutions tended to roll over their nominees into second terms, this was not required, and some judges (including former Chief Justice, Hamdan Zoelva) were not reappointed. In 2020, judicial terms were abolished, and tenure was increased to a maximum of 15 years.
The new amendments re-introduce five-year terms. Like the original system, nominating institutions can refuse to re-nominate or, as the bill expresses it, not ‘give approval to continue office’. The main difference between this and the original system is that, for judges who have served for more than five years already, the bill gives nominating institutions another opportunity to decide whether to grant approval for a judge to continue in office. In other words, a judge who has already served for five years could be immediately removed. This puts some dissenter judges at risk, including Saldi Isra, who is widely regarded as the Court’s best judge. These judges now have a strong incentive simply to wave legislation through – their nominating institutions can remove them with the stroke of a pen.
This all means that if Prabowo’s party alliances give him a majority in the legislature, then no effective checks on his power will remain. Of course, a free media could act as an effective check on government power. However, the second bill – a new Broadcasting Law – appears likely to severely limit the scope for the media to perform any accountability function.
The new Criminal Code already prohibits the criticism of government, but this proposed law goes further. In its current form, it seeks to ban the ‘exclusive broadcasting of investigative journalism content’. This seems to mean that while some outlets like Tempo will be able to continue to produce in-print investigative reports (such as important contributions detailing behind-the-scenes wrangling in the Constitutional Court in the leadup to the Gibran decision itself), broadcasters may well be unable to broadcast those stories or produce their own. This is significant given that many Indonesians consume news through ‘broadcasts’, which include television, radio, and (presumably) online mediums.
This ban may violate constitutional rights to access information and perhaps even freedom of expression. But if the government controls the Constitutional Court, there is nothing anyone can do about it.
Nothing indicates that Prabowo himself is behind these bills. The Constitutional Court bill was, it seems, an initiative of the DPR. It bears noting, however, that he will now inherit a system that provides almost no effective checks on his power.
Despite claims that concerns about democratic decline are overblown, the fact remains that Prabowo’s political party, Gerinda, has, as its number one mission statement, a return to the Constitution of 1945 ‘as stipulated on 18 August 1945’. This is the original version of the Constitution, before it was amended in the post-Soeharto period to establish democracy and accountability-enhancing institutions such as the Constitutional Court and free and fair elections. This suggests that Prabowo and his party want to abolish the Court.
While the proposed Constitutional Court amendments fall short of this, they make significant progress towards this ultimate goal.
