Excessive Judicial Activism by the Constitutional Court and the DPR’s Aggressive Reaction Do Not Solve the Problem of Voter Fatigue

The Constitutional Court Decision No. 135/PUU-XXII/2024 concerning the judicial review of Law No. 7 of 2017 on General Elections (Election Law) and Law No. 8 of 2015 amending Law No. 1 of 2015 on the Stipulation of Government Regulation in Lieu of Law No. 1 of 2014 concerning the Election of Governors, Regents, and Mayors into Law (Regional Elections Law) mandates the separation of the elections for the President, the House of Representatives (DPR), and the Regional Representative Council (DPD) from the elections for Regional Legislative Councils (DPRD), Governors, Regents, and Mayors. The Constitutional Court further stipulates a two-year interval between the implementation of these two electoral processes.

This decision has prompted a strong response from the House of Representatives (DPR RI). The DPR has once again raised the possibility of revising Law No. 24 of 2003 on the Constitutional Court, as most recently amended by Law No. 7 of 2020, a move that has drawn public criticism. The DPR argues that the Constitutional Court’s decision exceeds its constitutional authority by effectively acting as a positive legislator, thereby encroaching upon the legislative authority of the DPR and allegedly “betraying the sovereignty of the people.”

Regarding these developments, SETARA Institute offers the following observations:

1. The Constitutional Court Decision No. 135/PUU-XXII/2024 is viewed as an example of judicial activism that extends too far into the realm of political affairs. The judicialization of politics, or the regulation of political mechanisms by the judiciary, should not be expanded to the extent that courts establish binding rules that ought to be determined through political processes. This decision places the Constitutional Court too deeply within the political arena, thereby exceeding the scope of its constitutional authority.
2. In the a quo case, the Constitutional Court should have exercised judicial restraint. Although the Court correctly acknowledged the existence of voter fatigue, it should also have respected the constitutional limits of its authority in resolving political controversies. In particular, it should have taken into account Article 22E paragraphs (1) and (2) of the 1945 Constitution, which mandate that both general elections and regional elections be held every five years. Accordingly, this issue should have remained an open legal policy, meaning that it should be left to the discretion of the legislature.
3. The DPR’s decision to revive discussions on amending the Constitutional Court Law demonstrates a politically motivated agenda. Any amendment to the Constitutional Court Law must be undertaken cautiously, with the primary objective of strengthening constitutional democracy. Amendments driven by political interests create opportunities to weaken the Constitutional Court, thereby reducing the effectiveness of the system of checks and balances and increasing the risk of court packing aimed at interfering with an independent judiciary.
4. The claim that the a quo decision has betrayed the sovereignty of the people is also misplaced. The increasing number of citizens submitting judicial review petitions to the Constitutional Court serves as a clear warning that legislative reform is urgently needed. The high volume of judicial review petitions, as well as the number of petitions granted by the Court, reflects inadequate public representation, insufficiently meaningful public participation, and a lack of full transparency in the legislative process. These shortcomings have led citizens to seek alternative channels to express their concerns regarding voter fatigue and to protect their constitutional rights through the Constitutional Court.
5. Based on these considerations, SETARA Institute emphasizes the importance of the Constitutional Court exercising caution when determining whether to apply judicial restraint or judicial activism. In this case, judicial restraint was the more appropriate approach because no constitutional issue required judicial resolution. Rather, the a quo case concerns a political issue that should have been returned to the political process.
6. The failure to exercise judicial restraint has resulted in excessive judicial supremacy. This is particularly evident in the Constitutional Court’s failure to carefully consider Article 22E paragraphs (1) and (2) of the 1945 Constitution concerning the administration of elections. Consequently, the a quo decision has generated constitutional controversy.
7. SETARA Institute also urges the DPR to refrain from reviving proposals to amend the Constitutional Court Law, particularly as a reaction to Constitutional Court Decision No. 135/PUU-XXII/2024. Once again, politically motivated amendments would only weaken the Constitutional Court, thereby undermining the effectiveness of limitations on governmental power and constitutional democracy as a whole.
8. The DPR’s primary focus should instead be on reformulating the stages of simultaneous general and regional elections in order to prevent voter fatigue. In addition, expanding meaningful public participation, improving transparency, and strengthening representativeness in the legislative process should become key priorities so that legislative developments are accessible to and can be monitored by citizens.

Media Contact:
Azeem Marhendra Amedi, Researcher for Law and Constitutional Affairs, SETARA Institute