Indonesia: General elections test the amended Constitution and the new Constitutional Court

Abstract

The Indonesian constitutional amendments—Constitutional Court—general elections—Dewan Perwakilan Rakyat (DPR)—Dewan Perwakilan Daerah (DPD)—Majelis Permusyawaratan Rakyat (MPR)

On August 10, 2002, the Majelis Permusyawaratan Rakyat (MPR) or People's Consultative Assembly, Indonesia's highest elected assembly, completed the last in series of four major constitutional amendments that had begun 1999. The result—to the surprise of many skeptical commentators—was a radically revised and newly liberal democratic political system.¹

The amendments established totally new organs of state—including a powerful new Constitutional Court; the Dewan Perwakilan Daerah (DPD) or Regional Representatives Council, a form of senate to represent Indonesia's thirty provinces; and a judicial commission, to supervise judicial reform. The amendments also reformed existing institutions, laws, and mechanisms, including a dramatic expansion of human rights provisions to embrace most of the Universal Declaration of Human Rights; the introduction of a mechanism for the direct election, for the first time, of the president and vice president; the abolition of appointed members of the Dewan Perwakilan Rakyat (DPR) or legislature and, thus, the end of the longstanding practice of reserving seats for the military; the redefinition and scaling down of the MPR's role; the abolition of the controversial Elucidation to the 1945 Constitution;² and finally, the strengthening of the troubled post-Soeharto regional autonomy process through the grant of formal constitutional status for the transfer of power to regional authorities.

Many critics since have argued that, despite the amendments' transformation of the political and legal system, the constitutional process was flawed, incomplete, and full of loopholes.³ One leading constitutional scholar, Professor Jimly Asshiddiqie, argued, for example, that “the absence of an adequate process of synchronization and harmonization between old and new provisions would create many controversies.”⁴ There is truth in this, but, as this essay will argue, the Constitutional Court created by the amendments—and led, ironically, by Asshiddiqie as Chief Justice—has played a major role in resolving these problems.

In making this case, the present paper will focus on the general election of April 5, 2004, in which Indonesians chose the members of the DPR or national legislature, the DPD, and the provincial and local DPRDs (the Dewan Perwakilan Rakyat Daerah or regional legislatures). Because members of the DPR and DPD, sitting together, now form the MPR, its membership was also determined by the same election. The election was, at once, both the first test of the amended Constitution itself and the first occasion on which the Constitutional Court established by those same amendments could implement its mandate “to resolve disputes on the general election” (art. 10 para. [1] d, Law no. 24 of 2003), and thus exert its authority over the new system.

1. The 2004 elections: Democratic complexity

Many observers have claimed that Indonesia's 2004 elections were the most complex and challenging in world history,⁵ even when compared with the legislative election in India of the same year.⁶ In the end, twenty-four political parties competed to fill almost 16,000 seats in legislatures at the national, provincial, and district levels. Parties and candidates sought the votes of more than 140 million voters in more than 2,000 electoral districts.⁷ Accordingly, around 500,000 voting stations were required, and approximately 900 million ballot papers were printed, distributed, and retrieved.⁸ This already highly complex process was made even more difficult by the nature of Indonesian geography—over 17,000 islands stretched over five thousand miles along the equator—and by the already poor quality of infrastructure across the archipelago, which was further degraded by the economic crisis that had begun in Indonesia in 1997.⁹

This election was only one of three that Indonesia undertook in a single year in order to create its new government. The second was the first round in the election of a president and vice president, which took place on July 5. Because no candidates achieved both 51 percent overall and at least 20 percent in half of Indonesia's thirty provinces, the third election for 2004 was the second-round runoff between the two highest-scoring presidential tickets, which took place on September 20 and resulted in the election of a new leader, Susilo Bambang Yudhoyono, with more than 60 percent of the vote.

The legislative election of April 2004, however, was particularly challenging because it involved an entirely new electoral system, which introduced, first, an open list proportional representation system for the DPR and the provincial legislatures or DPRDs, and, second, a single nontransferable vote system for the new DPD, or regional senate. The first round of the presidential election, however, had its own problems. There were, for example, concerns regarding invalid paper ballots, because many voters did not unfold the ballots properly, making two holes when they punched their preferred candidates, thus invalidating their vote. The Electoral Commission, however, quickly issued a ruling that such ballots should be accepted. This led to a delayed counting process as recounting was carried out in many different polling stations. The decision to recount was eventually tested by the Constitutional Court on the motion of the losing candidate, the former general Wiranto, and the objection was dismissed for lack of evidence.

Against the odds, and despite the obstacles just described, the elections were generally successful, with most reports agreeing that they were essentially free and fair and little marred by violence or intimidation.¹⁰ Likewise, the Constitutional Court effectively resolved electoral disputes that could have derailed the process. Together, these facts are evidence of both the strength of Indonesia's transition from authoritarianism under Soeharto to a functioning, open democratic system and of public acceptance of the new system, despite its complexity. With this in mind, we now turn a more detailed account of the key legislative bodies in the new system.

2. The DPR: From a rubber stamp to hegemon?

The constitutional amendments undoubtedly enhance the DPR's position by making a range of radical changes, such as the grant of a monopoly on the production of statutes, the requirement that all DPR members now be elected, and the recognition of fundamental rights exclusive to the DPR.

As to lawmaking, the DPR's role in drafting legislation has shifted from simply approving statutes to becoming the sole body that “shall hold power to make statutes.”¹¹ Some history is required here to grasp the significance of this reform. The original version of 1945 Constitution granted the president the power “to make statutes in agreement with the DPR.” The vagueness of this provision was exploited by successive administrations, with the result that the president became the key player and the DPR was famously rendered a “rubber stamp.” A. Hamid S. Attamimi has even argued that, in practice, it was the president and not the DPR who held the sole power to make statutes,¹² since under Soeharto almost all bills emanated from the administration, and almost none were ever rejected by the DPR. Compounding matters, the president also enjoyed a broad discretionary power to sign or reject bills passed by the DPR, thus exercising a full veto. By contrast, the amended Constitution now stipulates that if a bill has obtained assent from the DPR, the president should sign it into law within thirty days. In the event that the president fails to do so, the bill will, in any case, be deemed duly enacted.¹³

In addition, the presidential powers of amnesty and of “abolition” (the power to drop charges) are now subject to “the advice of the DPR,”¹⁴ and the president must also consider its advice when appointing ambassadors and receiving foreign ambassadors.¹⁵ These are considerable dilutions of presidential discretion, and, in practice, they have already become major hurdles for the executive in conducting international relations, according to Mohammad Fajrul Falaakh,¹⁶ especially as regards receiving foreign ambassadors. The DPR has given the clause “having regard to the advice of the DPR”¹⁷ a broad interpretation, claiming the right to subject candidates for ambassadorship to a “fit and proper test.” This has proved to be a time-consuming procedure, with long waits to fill ambassadorial posts causing great frustration to President Megawati's minister of foreign affairs, Hasan Wirayuda.¹⁸

With the Second Amendment in 2000, the DPR became a fully elected body,¹⁹ and the long-standing practice of the executive effectively appointing military and police representatives came to an end. These amendments also clarified the DPR's legislative and supervisory functions, providing for the right to approve the national budget;²⁰ a clear right of interpellation, investigation, and opinion;²¹ and a prima facie immunity from prosecution for its members.²²

The expansion of the powers, described above, has led many scholars to conclude that the DPR has become Indonesia's supreme organ of state,²³ a position it certainly did not enjoy before the amendments, when it was usually seen as subordinate to both the MPR and the government. The amendments now leave both the president and the MPR, which the president previously controlled, with a much reduced legislative role, and this has led, in turn, to the popular trope that the Indonesian system has gone from being “executive heavy” to “legislative heavy.” This is a transformation that some, including Asshiddiqie, have described as an overreaction to the overly powerful presidency under Soeharto—and dangerous, in that it may overly diffuse power and create a less efficient system.²⁴

3. The DPD: Not quite bicameral?

A further major reform has been the establishment of the DPD as a type of senate for the provinces, according to chapter VIIA of the amended Constitution. This new organ was designed to allow regional communities to play more-active roles in governance, in line with the post-Soeharto revival of regional autonomy newly enshrined in the Constitution.²⁵ The DPD has broad powers “to submit laws to the DPR”²⁶ and “to participate in the discussion of bills related to regional autonomy, central–region relations, the formation, expansion and merger of regions, the management of natural resources and other economic resources, dealing with financial balance between the center and the regions.”²⁷ It also has the right to advise the DPR concerning bills on matters of the state budget, taxation, education, and religion²⁸ and an additional right to oversee and to submit its findings to the DPR on the implementation of these matters.²⁹

The membership of the DPD is determined by the direct election of individuals from each province to represent the interests of that province in national affairs. In this sense, the DPD can be seen as an institutional reform of the dysfunctional regional representatives (utusan daerah) system that prevailed in the Soeharto-era MPR, when a small group of regional representatives were appointed to the MPR, essentially at the president's discretion. The direct nature of the selection of DPD members under the new system means that DPD members may well be able claim greater democratic legitimacy than DPR members, who do not represent electorates at all and are not chosen on their own merits but, rather, solely as national representatives of their respective parties.³⁰ Against this, however, the DPD is not a true “upper house” because its limited powers mean that it merely complements, rather than supplements, the DPR.³¹ The DPD does not, for example, have an autonomous right to make laws; it can only submit draft bills to the DPR. The new Indonesian system is, therefore, not strictly bicameral.³²

A further potential problem regarding the DPD may be found in the absence in the amended Constitution of any detailed stipulation of the DPD's rights and, in particular, the rights of its members. This is seen, for example, in the absence of any provisions granting immunity for DPD members matching that granted to members of the DPR.

The ambiguity of the regime governing the DPD may be deliberate, ensuring that the DPD's powers do not, in fact, rival those of the DPR; after all, the MPR that drafted the Third Amendment was dominated by DPR members. The ambiguity may also reflect the fact that the drafters looked to the Senate provisions from the 1949 Constitution of the Federal Republic of Indonesia as the model for this new body.³³ Because most Indonesians regard the states formed under that Constitution as puppet states of the departing Dutch government, and thus as implicit threats to Indonesian unity, there was a strong desire to dilute the 1949 model to prevent a de facto quasi-neocolonial federalism.³⁴ Whatever the motivations for the restrictions on the power of the DPD, however, it is clear that they are very significant. If they remain in place they could frustrate its mandate of representing regional interests against the center.

4. The redefining of the MPR

As already explained, members of the DPR and the DPD together constitute the membership of the MPR, and it, too, has been reinvented by the amendment process, albeit in a weakened form.

Article 1, para. (2), of the original 1945 Constitution established the MPR as the highest state organ and charged it with fully exercising the people's sovereignty. This included “distributing” powers to other state organs,³⁵ a controversial doctrine that was interpreted during the New Order (1966–98) to mean that the MPR was the only state organ exercising sovereignty. This allowed it virtually unfettered power over the entire state system, a power routinely exploited by the presidents who acquired control over the MPR through the system of appointment of many of its members.

The now-abolished Elucidation (or Explanatory Memorandum) to the Constitution was usually cited in support of the doctrine of MPR supremacy. It provided that “the MPR is the highest authority in the conduct of state affairs … [it] is the manifestation of the people who hold the sovereignty of the state,” and that “since the MPR is vested with sovereignty of the state, its power is unlimited.” There was, however, an inconsistency as between article 1, para. (2), and its Elucidation, as the former recognized the “people's sovereignty” while the latter dealt with “state sovereignty.” Both the Old and New Order regimes valorized the Elucidation over the article, thus emphasizing the authority of the state over the sovereignty of the people, an interpretation that, however debatable in principle, certainly reflected practical politics under Soeharto. The Third Amendment has now reversed this doctrine, stripping sovereignty from the MPR and stating unequivocally that it is now “in the hands of the people and is exercised in accordance with the Constitution.”³⁶

Similarly, the commitment that Indonesia “is to be a state based on law” (Rechtstaat or negara hukum), previously contained in the Elucidation, has now been incorporated into the main document,³⁷ although no further detail is provided. This is unfortunate, as the meaning of “state based on law” has been the subject of much debate and, again, controversy, since independence in 1945. These two reforms, while undoubtedly acts of “great symbolism,” are thus, in the end, perhaps not much more than that.³⁸

A major change in the composition of the MPR reflects, however, a more concrete shift toward democratic governance. In the past, appointed representatives of provinces, as well as appointed members from so-called “functional groups,” such as “peasants” or “entrepreneurs,” were tacked on to the DPR in forming the MPR. The practice of appointment created a pervasive tradition of institutionalized nepotism and was the key to Soeharto's control of successive MPRs. For this reason, the Fourth Amendment ended the practice. Members of the MPR now come only from the DPR and DPD and are chosen solely through election.

As in the case of the DPD, the MPR reforms also failed to produce a bicameral system. While the MPR could have ceased to be a permanent body and become, instead, merely a joint session of the two constituent houses (the DPR and DPD),³⁹ in the end, realpolitik reaffirmed the MPR as a permanent body with specific and vital authorities. These include, most significantly for the purposes of this essay, the exclusive power to “amend and determine” the Constitution (art. 3, para. [1]); to appoint the president and vice president (art. 3, para. [2]); to remove the president and vice president from office (art. 3, para. [3]); to elect the vice president in a case of vacancy (art. 8, para. [2]); and to elect the president and vice president in a case of vacancy in both offices (art. 8, para. [3]). As a result, Indonesia, in reality, has three houses—DPR, DPD, and MPR—with tension remaining in the distribution of real power between them but with the DPR apparently dominant.⁴⁰

It remains to be seen whether these three institutions can achieve, cooperatively, a greater degree of democratic governance. Early indications suggest tensions will persist. For example, when the newly elected members of DPR and DPD sat, for the first time, as the MPR, on October 1, 2004, a long debate and tense backroom negotiations led to the amendment of the Standing Orders so as to allow the DPD equal representation in the MPR's multiple chairmanship system.⁴¹ The DPD is now preparing a proposal to amend the Constitution to further strengthen its position, but this is sure to meet resistance from DPR members of the MPR.⁴²

5. The Constitutional Court: Implementing the new constitutional scheme

The Third Amendment established the new Constitutional Court. Article 24C grants it the power to make the final decision in reviewing statutes (Undang-undang) in the light of the Constitution;⁴³ to determine disputes concerning the authority of the state organs whose power is derived from the Constitution; to dissolve political parties; and to resolve disputes about the results of a general election.⁴⁴ It also has the power to make decisions concerning the opinion of the DPR with regard to alleged violations by the president and/or vice president of the Constitution—in other words, the power to have the final say in any impeachment proceedings.⁴⁵

Some argue that the formation of the Constitutional Court was a response to the 2000 constitutional crisis when President Wahid became involved in a lengthy stalemate with the DPR resulting in his controversial impeachment and ultimate dismissal by the MPR.⁴⁶ This dramatic episode clearly influenced the MPR to create the new Court. However, its formation was also, in a broader sense, a response to the long absence of any mechanism to review the constitutionality of statutes and the consequent absence of developed judicial doctrines of constitutional interpretation that, together, contributed to the arbitrary and authoritarian nature of Soeharto's rule.⁴⁷

Detailed regulations concerning the Constitutional Court were provided in Law no. 24 of 2003,⁴⁸ passed by the DPR on August 13, 2003—only four days before the deadline for the establishment of the Constitutional Court fixed by article III of Interim Provisions of the Amended Constitution.⁴⁹ Consisting of eight chapters with eighty-eight articles, this statute deals with definitions, structures, powers, the mechanism for judicial appointment and dismissal, and procedural issues.⁵⁰ In particular, article 45 provides that dissenting judgments are allowed (art. 45, para. 10). This is an important development, given that Indonesia is a civil law jurisdiction and dissenting judgments were virtually unknown before the formation of the Commercial Court in 1998 and have only recently been allowed in the Supreme Court (Mahkamah Agung). They are still very rare.

6. The general election cases

The results of the 2004 legislative elections were officially announced by the Electoral Commission on May 5, 2004.⁵¹ Soon after this announcement, several political parties and the losing DPD candidates lodged applications to contest the results.⁵² Although the right to challenge election results is recognized in Law no. 24 of 2003, article 74, paras. (2) and (3), it imposes restrictions on such actions based on an “effect” criteria⁵³ and applies a tight limitation period of only seventy-two hours from the moment formal results are announced by the Electoral Commission.

Soon after the swearing in of Asshiddiqie and the puisne judges of the Constitutional Court, the Supreme Court referred pending applications for judicial review to the new court.⁵⁴ Asshiddiqie decided, however, to prioritize cases relating to the 2004 election,⁵⁵ with the result that the Court has heard—before the other issues in its list—cases relating to Law no. 31 of 2002, regarding political parties; Law no. 12 of 2003, regarding general elections; and Law no. 22 of 2003, on the composition and status of the MPR, DPR, DPD, and DPRD.

6.1. Disputed returns

As of June 30, 2004, the Court had received a total of 465 cases relating to the election,⁵⁶ of which 273 have been decided. These actions were brought by a mixed group, comprising twenty-three applicants from political parties⁵⁷ and twenty-one DPD candidates.⁵⁸ The Partai Amanat Nasional (PAN) or the National Mandate Party and the Partai Keadilan Sejahtera (PKS) or the Welfare Justice Party dominated the applications, chiefly because both parties were sufficiently well organized as to be able to draft written evidence and prepare witnesses within short periods.⁵⁹ Both parties benefited from this efficiency, since they were able ultimately to increase their seats at either the national, provincial, or district levels through favorable Constitutional Court decisions.

6.2. Communists as candidates

The Court also made a landmark decision that hinged on an application to review the constitutionality of article 60 g of Law no. 12 of 2003, which limited the rights of citizens to stand for election. This article reflected the anticommunist paranoia that has been a characteristic of Indonesia politics since 1965, when hundreds of thousands of leftists were killed or jailed. Specifically, article 60 g prohibited the candidature of former members of “the banned Indonesian Communist Party, including its mass organizations” and any person “directly or indirectly involved in the ‘G30S/PKI’⁶⁰ or any other illegal organization.”⁶¹

The Court's judgment, handed down on February 24, 2004, struck down article 60 g, although one judge dissented.⁶² The Court recognized that individual rights could be limited by a statute but found that those limitations must be based on “strong, reasonable, proportional and not extreme grounds.” The Court further found that the ban on communist-linked candidates in article 60 g was based solely on political grounds, and that these were neither reasonable nor strong. It therefore decided that article 60 g was in contravention of the Constitution and, in particular, articles 27 (equal status before the law and government); 28 D, paras. (1) (equal rights to recognition, security protection, and certainty of just laws and equal treatment before the law), and (3) (right to equal opportunity in government); and 28 I para. (2) (right to freedom from discriminatory treatment). Accordingly, the article was “not legally binding,” and former communists, and those suspected of being communists or linked to them, were, in fact, entitled to stand for election.

This decision was said by the Court to be intended as a step toward “national reconciliation and justice for the future.” It was, indeed, widely hailed as a major step forward in dealing with the violence and long-standing institutionalized discrimination associated with the events of 1965 and their aftermath—still distressing and taboo issues for many Indonesians.

7. The Bali bomber case

More recently, in the Kadir case, the Constitutional Court found Indonesia's new Antiterrorism Law no. 16 of 2002 (which was introduced after the Bali bombing and purported to apply retrospectively to allow prosecution of the Jemaah Islamiyah members who carried out the atrocity) breached the constitutional prohibition on retrospective prosecution in article 28 I, part of the new Bill of Rights in the amended Constitution. The Court made this decision—which is clearly correct—in the face of enormous political and popular pressure to uphold Kadir's conviction.

8. Conclusion

As a result of decisions such as those described in this article, the Constitutional Court is now touted as a model for future judicial reform in Indonesia.⁶³ It is widely regarded as both transparent⁶⁴ and capable. It is seen as concerned with achieving a broad form of social justice and with advancing the process of democratization.⁶⁵

It has undoubtedly made an important contribution to the implementation of the amendments to the Constitution that brought it into being. It has generally provided a fair and efficient forum for testing the new democratic electoral system established by those same amendments and has proved itself to be independent. Against the odds, it appears to be emerging as an effective guardian of the new Constitution, despite the fact that one of the most trenchant critics of the amended Constitution is now its Chief Justice. The success of the Court is, in itself, strong testimony to the emerging strength of the amendments and the infant institutions they have created.⁶⁶