Defending the rule of law after Prabowo’s election victory

According to unofficial polls, former Indonesian special forces commander Prabowo Subianto has won the 2024 Indonesian presidential election. Activists are now worried he will drag the country in an authoritarian direction because of his longstanding anti-democratic views.

There are also concerns Prabowo’s approach will push reform away from ‘rule of law’ towards ‘rule by law’ because of his preference for enforcing order rather than the law, demonstrated by the long list of human rights abuses he is alleged to have committed in the past.

Their concerns are valid, but the problem is bigger than Prabowo. Focusing simply on the personality and leadership style of presidents can detract from the real problems in Indonesia, which are much more structural.

It is very likely that Prabowo will continue to exploit the law, just as Jokowi has done before him. This is not because Prabowo, with his authoritarian persona, is necessarily hell-bent on destroying Indonesian democracy. Rather, it is because of a relative absence of counterbalancing pro-democratic forces committed to defending democracy and rule of law.

Previous reforms have been unable to protect Indonesia’s institutions

For many years, efforts to address the damage caused to the Indonesian legal system by Soeharto’s authoritarian rule have focused on redesigning and strengthening the capacity of law enforcement organisations.

But these efforts have failed to prevent the hijacking of Indonesia’s institutions by anti-democratic forces. What has happened to the Corruption Eradication Commission (KPK) and the Constitutional Court – once lauded as well-designed institutions – is clear evidence of this.

In 2019, for example, the organisational design of the KPK was overhauled to better comply with ruling elites’ interests. It has been a mess since the issuance of an amendment to the KPK Law that year which diluted its anti-corruption enforcement authority and meddled with recruitment processes for employees and investigators, allowing more political involvement in the appointment of KPK commissioners.

This has led to a number of ethical violations within the KPK. The most recent involved the then Chairman of the KPK, Firli Bahuri, who has now been named a suspect in a bribery and extortion case. This has only added more reasons for loss of public trust in this important institution.

The Constitutional Court has come under similar attacks. Once seen as a guardian of democracy in Indonesia, the court last year issued a controversial decision that lowered the minimum age for certain presidential and vice presidential candidates, smoothing the way for current president Joko “Jokowi” Widodo’s son, Gibran Rakabuming Raka, to become Prabowo’s running mate.

Anwar Usman, the Chief Justice of the court, who is also Jokowi’s brother-in-law and Gibran’s uncle, was found to have committed serious ethics violations in making this decision. He was dismissed as Chief Justice. But the sanction did not change the situation. Usman remains one of the nine judges of the court, and the original decision remains valid, providing Gibran with a legal basis for his candidacy.

Democratic decline under the ‘clean president’

Jokowi is the epitome of how Indonesia’s democratic woes are far bigger than the president. The outgoing president was once widely believed to be a clean leader without links to  authoritarian elites. But he ended up overseeing the erosion of Indonesia’s essential democratic and legal institutions for illiberal purposes.

It was not just the Constitutional Court and the KPK that suffered – many other illiberal ‘reforms’ were advanced under Jokowi. For example, in 2017 he issued a regulation in lieu of a law on mass organisations that threatened the principles of freedom of association in Indonesia.

Indonesian academics from various universities issued a public statement criticising his attacks on democracy. Even prominent former Jokowi supporters now say the president has destroyed judicial institutions and the KPK. But these criticisms appear like a case of too little too late.

In fact, Jokowi’s presidency is a case study on how anti-democratic forces can work collectively through a president to systematically assert political control over law enforcement and the rule of law. His presidency also showed how previous reforms were unable to contain the damage or safeguard institutions.

It is therefore almost inevitable that under the upcoming Prabowo administration ruling elites will build on Jokowi’s legacy and look to exploit similar vulnerabilities in the law for illiberal purposes.

However, there will still be structural constraints that will prevent Prabowo from bringing the country back to authoritarian rule, where power is concentrated in the hands of one man or party.

Ironically, the biggest barrier to further power consolidation is the elites themselves. Prabowo has assembled a broad coalition of parties and business interests to back him – and they will all be eager to ensure power and financial rewards are broadly distributed and ensure that none of their rivals amass too much power.

The law can help Prabowo build legitimacy

Relying on institutional designing in establishing the rule of law is inadequate because laws and institutions are not self-realising – the mere fact that a law is passed does not mean it is implemented. Instead, the operation of the law in Indonesia is ultimately determined by the constellation of power. So long as anti-democratic interests dominate control of public institutions, the law and legal institutions will continue to serve the interests of elites over those of justice.

As a retired army lieutenant general, it will not be hard for Prabowo to use his influence to mobilise the military apparatus and repress political dissidents. However, laws and legal avenues will still be retained to put political rivals in check and silence critics.

The legal system will also still be used to help ruling elites manufacture legitimacy and demonstrate the illusion of democratic process. In this way, legal proceedings serve as a way for those in power to communicate with the public.

For example, in 2021 a panel of judges from the Central Jakarta District Court ruled in favour of a citizen lawsuit that found Indonesian officials, including Jokowi, failed to protect citizens’ rights to clean air. Similarly, the Jakarta State Administrative Court (PTUN) ruled in favour of a lawsuit brought by civil society groups against the Indonesian government’s decision to shut down the internet in Papua and West Papua in 2019.

But is unclear whether these rulings against the government resulted in any real consequences for those in power – or, indeed, any change at all. These victories did indicate to citizens  that there are legal avenues to challenge the decisions of governments, strengthening perceptions of democracy. But these wins are purely symbolic, they exist only on paper.

Examples like this show how the ruling elites sometimes use legal measures almost as rhetorical devices to create false hope or alleviate political dissent. So long as civil society is unable to deliver real challenges to existing power relations, it is very unlikely legal avenues can effectively defend Indonesian democracy.