SETARA Institute and the Constitutional Democracy Forum (CDF)
January 23, 2014
Decision No. 14/PUU-XI/2013 of the Constitutional Court of the Republic of Indonesia regarding the review of Law No. 42/2008 on the Election of the President and Vice President is a progressive decision that reaffirms the presidential system of government enshrined in the Constitution of the Republic of Indonesia. The President is the holder of state power under the 1945 Constitution of the Republic of Indonesia. In a presidential system, while the support of the House of Representatives (DPR) remains important in establishing effective governance, it is not absolute. This decision implicitly rejects the model of party coalitions—as is customary in parliamentary systems—including transactional coalitions formed to determine the presidential candidate selected following legislative elections. Another expected outcome of this ruling is the strengthening of the checks and balances mechanism in government administration, particularly between the President and the DPR. This is because both are directly elected by the people in a simultaneous election system, unencumbered by political coalitions and deals.
The suspension of the Constitutional Court’s ruling regarding the conduct of simultaneous elections—a move that has been widely praised—is also an elegant and rational choice, even though it means that the realization of the constitutional truth and justice embodied in this ruling has been delayed.
However, this progressive ruling also illustrates that the Constitutional Court is clearly engaging in political maneuvering by delaying the reading of the decision—a decision that had in fact been reached long ago by the Constitutional Court’s Panel of Judges. The Court also failed to adhere to the principle of final and binding decisions, which is inherent in every ruling of the Constitutional Court. It is clear how the Constitutional Court has effectively nullified its own final and binding decision. The Court has been unable to provide a rational explanation for why a case subject to the ne bis in idem principle could still be reviewed and decided. The way the Constitutional Court handles such decisions will set a precedent for many other rulings, suggesting that, with different arguments, Constitutional Court decisions can be challenged again and overturned with a different ruling.
The Constitutional Court’s indecision could have been avoided if the House of Representatives and the President had adhered to the Constitution of the Republic of Indonesia in every law they enacted. Following the Constitutional Court’s decisions rejecting similar petitions in 2005 and 2007, the House of Representatives and the President—as the lawmakers—should have been diligent and responsive in addressing the evolving public sentiment calling for simultaneous elections by amending the contested provisions in the Presidential Election Law.
Although this ruling is progressive and contributes to the strengthening of constitutional democracy in Indonesia, it still poses a number of challenges for the Constitutional Court, particularly regarding how the Court handles its own rulings. The erosion of the final and binding nature of the Constitutional Court’s rulings has the potential to create legal uncertainty. It is necessary to devise a new legal policy to strengthen the Constitutional Court as an institution, including how its rulings are treated.
Contact Persons:
Ismail Hasani, Researcher at SETARA Institute, Lecturer in Constitutional Law at UIN Jakarta, and Presidium Member of the Constitutional Democracy Forum (CDF): 08111 88 47 87
Abdul Khoir, Researcher at SETARA Institute and Activist with the Constitutional Democracy Forum (CDF): 081313491943