The political storm clouds seem to be massing, again, over Indonesia’s Constitutional Court. Defeated presidential candidate Prabowo Subianto, a former military general, is once again challenging the victory of Joko “Jokowi” Widodo in the Constitutional Court. Prabowo is accusing incumbent Jokowi of election fraud and demanding the court disqualify Jokowi and declare him the winner.
Prabowo also filed a similar lawsuit when he lost the 2014 election to Jokowi.
Thus, once more, the Constitutional Court has been asked to act as an independent referee in Indonesia’s top political contest. It will not only determine who will be president, but also, more importantly, the future of Indonesia’s democracy as the legitimacy of the electoral process is at stake.
Some people have doubts about whether the court will be impartial. Since the arrests of some of the court’s judges, including former chief justice Akil Mochtar for bribery in 2013, the public has become distrustful of the institution.
Prabowo’s lawyer, Bambang Widjojanto, former deputy chief of Indonesia’s anti-corruption agency, also voiced his concern.
However, my latest research with Tomoo Inoue from Seikei University in Japan may offer hope for Prabowo’s camp as our findings show the Constitutional Court’s independence from the government remains intact.
Based on empirical analysis of the court’s performance between 2004 and 2016, we found no statistical evidence of political influence in the court’s decisions for or against the government in high-profile cases.
For the research, we compiled a unique data set covering high-profile cases between 2004 and 2016. We identified these high-profile cases based on their exposure in two major newspapers and academic publications and discussions. We found 80 cases.
We complemented the analysis of the 80 cases with socio-biographic profiles of the 26 judges who have served on the court since it was established in 2003.
We found high-profile and political cases have increased gradually over time, with significant spikes during elections.
Of the 80 cases, 28% were on election-related disputes, 33% on individual rights and civil liberties, 24% on the separation of powers among branches of government, 9% on economic issues, and 6% on the delineation of powers of the executive.
Although 41 cases (51%) were decided unanimously, 39 cases (49%) had at least one judge expressing disagreement with the court’s decision. The number of dissents has been declining over the years, reaching a new low in Jokowi’s first term. These figures suggest less disagreement on the bench.
Interestingly, the government lost 75% of the decisions and won only 25% in the sample of 80 high-profile cases.
Thus, there is little basis for the occasional suggestion that the court has become more likely to side with the government. It is true, though, that there is less disagreement among the justices.
Questions on judges
The arrest in 2013 of the Constitutional Court’s chief justice, Akil Mochtar, for bribery and his junior, Patrialis Akbar, in 2017, also for bribery, raised questions about the court’s independence and the quality of the judges.
Some question whether the appointment process is being politicised or whether there has been a decline in leadership.
The Constitutional Court has nine judges. These judges serve a five-year term that can be renewed once. They have to retire at 70.
Of the nine judges, the president nominates three, the legislative body three and the Supreme Court three.
Modelled after appointments to the South Korean Constitutional Court, this mechanism aims to prevent a single institution from monopolising the court and seeks a healthy balance between executive, legislative and judicial appointments.
Our research finds the Constitutional Court judges come from diverse backgrounds. Unlike high courts in Thailand, the Philippines and Malaysia, the appointments are not dominated by certain universities or judicial careers.
Also, our research finds no evidence that being a nominee of the Supreme Court, the parliament or the president influences the decisions of a judge.
Employing statistical analysis to analyse the voting pattern of each judge, we found they are more likely to rule against the government when the presidential term is ending or when the judge is about to retire.
In other words, the judges may take a more adversarial stance when they don’t have to fear retribution from the sitting president, or don’t have to worry about prospects for reappointment.
Despite a politicised nomination process, justices seem to act with considerable independence.
The court’s reputation in politics
In some ways, Indonesia’s Constitutional Court has been a good example of how courts in Asia have become major players in politics.
Some of its high-profile decisions have had major political and economic repercussions.
For instance, it invalidated the privatisation of electricity utilities; condemned government budgets that failed to allocate enough funds for education; protected religious and ethnic groups and sexual minorities from government discrimination; and repeatedly engaged with contested electoral matters.
Since 2003, the court has granted over a quarter of all petitions and revised 74 laws, annulled four completely, and nullified portions of many others.
No wonder the court is seen as activist — and credited with helping the country’s democratic consolidation.
The need for evidence-based debates
While its counterpart in Thailand is suffering from political bias, Indonesia’s Constitutional Court has managed to escape these pitfalls.
Perhaps Indonesia’s competitive politics and multi-track appointment process have shielded the court from undue political influence. This is because no single appointing power has been able to dominate appointments to the bench.
Yet our study findings do not support complacency in light of the court’s own shortcomings.
Professional failings, declining dissent on the bench and some evidence that the court panders to public opinion show that it’s critical that the public makes sure that the court is accountable.
The court also deserves more scholarly attention. Evidence-based debate on one of Indonesia’s most critical institutions is crucial.
As Indonesia heads towards the final conclusion of its highly competitive 2019 presidential election, the Constitutional Court is ever more important.
Björn Dressel, Associate professor, Crawford School of Public Policy, Australian National University
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