Introduction

Just days ahead of the candidate registrations for the 2024 presidential elections, the Indonesian public was taken aback by one of the seven Constitutional Court’s decisions pertaining to the age requirement for presidential and vice presidential candidates as per Law No. 7 of 2017 on General Elections (Election Law).

Judicial Review Petition No. 90/PUU-XXI/2023, submitted by an undergraduate student, was partially granted. The decision makes it possible for someone who has not yet reached the required age of 40 to run for office if they have previously held an elected position such as governor or mayor.

Strong allegations point to President Joko “Jokowi” Widodo pulling strings with his brother-in-law, Chief Justice Anwar Usman, to smoothen the way for his son, Gibran Rakabuming Raka, current Mayor of Surakarta, to run as a vice president candidate.

These complicated latest developments have invited outrage from the public as they are simply unfathomable for many. Several peculiar events, such as the sudden appearance of Justice Usman in the deliberation chambers (despite previously citing conflict of interest in three other petitions) and the disregard for a narrower ground proposed by two justices in their concurring opinions signals the deteriorating independence of the nation’s Constitutional Court, a prized product of the country’s difficult Reformasi.

Although petitions on the Election Law have been a common theme every election cycle, today’s controversy is unprecedented. Given the final and binding nature of the decision, however, it is pertinent to ask how this decision changes the paradigm of meritocracy in presidential elections and whether the decision inherently promotes Indonesia’s democracy beyond next year’s election.

The Case for Merit in Democracy

A recently coined term for a notion deeply entrenched in political theory for centuries, meritocratic ideals seek to assign roles based on individual qualities, especially when it comes to leadership in government.

Plato’s proposal of philosopher king, which calls for rulers endowed with knowledge and virtue, is far-fetched from the idea of popular democracy seen in most modern states.

Alas, fragments of this belief are still present in some shape or form, especially when it comes to electoral eligibility for high offices of government. This is achieved through a balance, ensuring that democratic expression doesn’t overly favour populism. At the same time, it requires that those in high office possess the necessary skills and wisdom for effective governance, attributes cultivated throughout human history.

Implementing merit-based electoral eligibility necessitates a nuanced approach. For one, using competence as a basis for electability should not come at the expense of societal representation which is central to the idea of democracy by, from and for the people. Merit should be determined such that it allows only competent people to become officials but not too far that it becomes a vehicle for elitism.

Other factors that are unique to individual states, such as educational standards and economic conditions, may also be of influence, thus why some countries like Indonesia implement an open legal policy for electoral requirements, including presidential candidacy.

Singapore is an example of a state which has successfully implemented a very high standard for presidential candidacy, notably with a minimum age of 45 and public/private sector leadership experience. Given the small island state’s world-renowned focus on efficient governance and economic growth, this kind of tall order is not surprising. On the other extreme, countries like Canada and New Zealand impose very low requirements, namely the age of adulthood – 18.

Developing countries such as Indonesia are more likely to benefit from having higher merit thresholds for practical reasons like internal political stability. By setting high standards for candidacy, the country may follow in the footsteps of successful historical precedents like Japan’s Meiji restoration, which established a stable and prosperous society by ensuring leadership was vested in experienced and capable individuals.

The Right Kind(s) of Merit?

What is particularly intriguing about the partially granted petition is the fact that out of the nine presiding justices, only three fully supported the decision, two provided concurring opinions and four provided dissenting opinions. That said, there are at least two layers of arguments that can be explored.

First, Justice Saldi Isra’s dissenting opinion has been hailed for being substantively comprehensive and procedurally transparent. The dissenting judges acknowledged how politically entrenched the cases brought upon them were. In the name of integrity of the Court – in maintaining its jurisprudence and of the justice system in its entirety – the justices rejected the petition as they believed qualifications for the presidency to be a matter that should be decided through a political rather than judicial process. This is because it falls under the category of open legal policy. This has been proven by the multiple changes made to the presidential age provision in the past.

Second, the concurring opinions of Justices Enny Nurbaningsih and Daniel Foekh are similarly, if not more, compelling, as they shed light on how Indonesia’s vast geographical area and complex government structure can play into the equation. Different from the final decision –they opined that an alternative kind of merit can be used as a requirement: prior experience as a provincial governor. This is due to the tall electoral requirements as well as more complex job descriptions of the governor position, compared to other elected posts including legislative member, regent or mayor.

An important point that was also highlighted in Justice Nurbaningsih’s opinion is the underlying difference between the fact of holding an elected position and being elected for said position: the former relates to capacity while the latter on democratic popularity. Unfortunately, the phrasing of the decision itself is very ambiguous as it translates to “…being at least 40 (forty) years old or has held/is holding a position that was elected through a general election, including regional head elections.” Even in the original Bahasa Indonesia text, this opens up debate on which of the two meanings is actually intended. This ambiguity alone can be subject to another petition, perpetuating the chain of perplexity of this whole episode.

The Long Game

It is not hard to see why the court’s decision gains notoriety, even after discounting the political “coincidence” factor. The question of merit is, as the justices themselves display through extensive elaboration among themselves, the crux of this whole furore. Despite the common agreement – or at least the absence of express disagreement – that merit is paramount for the highest position in the republic, differences exist on how this should be manifested.

As it stands today, the highly controversial decision is final and binding. This is in spite of the fact that Chief Justice Usman has been proven to have conducted an ethical violation and was subsequently removed from his primary post.

However, this should not mark the end of the scholarly community and even the general public’s inquisition on the role and form of merit in the Indonesian electoral system. Perhaps more so than any other in the past few years, the decision brings about more questions that could and should be brought up again to the court in the coming years, once it is freed from political infestation.

Introduction

On Garuda Party’s request for a judicial review of Article 173 paragraph (1) of Law 7/2017, the Constitutional Court issued Decision 55/2020. This decision stipulates that political parties contesting in future elections can bypass factual verifications if they have passed such verifications and surpassed the Parliamentary Threshold (PT) in the 2019 elections. In other words, these parties would only require administrative verifications to contest in the 2024 Elections. Consequently, there will minimally be nine political parties contesting in these upcoming elections. Rather than simplifying the political system in Indonesia by reducing the number of parties—for which this decision was supposedly intended—the number of parties that will qualify to contest in the 2024 Elections would likely be more than those that contested in the 2019 Elections due to lesser constraints.

Capping Contesting Parties in Elections, Strengthening Indonesia’s Presidential System

Capping the number of political parties contesting in elections strengthens the presidential system in Indonesia particularly when it is combined with a multiparty system. The existence of extreme multiparty conditions has led to political compromises which interferes with the effectiveness of a government. Such conditions as observed during Susilo Bambang Yudhoyono’s administration (2004-2009) led to the administration being suboptimal as it was built on a fragile and fluid coalition of political parties. This was again inevitably observed in Joko Widodo’s administration. Ministerial appointments, which the President had full prerogative of, became transactional as these appointments were split among the coalition party members as reward for their support.

One method of capping the number of contesting political parties is via their verification, both factually and administratively, in every election. Without such verification, the number of political parties contesting in elections is bound to increase. This is especially important in Indonesia due to the dynamism of political parties, prevalence of internal party conflicts, and parties’ weak institutional systems. Other means of capping include conducting simultaneous legislative and Presidential elections as conducted in 2019, changing the size of electoral districts, changing the formulas for converting votes to seats, and changing the presidential election system to a majority run off. Unfortunately, holding simultaneous elections in 2019 did not have the desired effect of decreasing the number of contesting parties. However, during that election, voter participation increased.

Technical Process of Verification: Factual vs. Administrative

The General Elections Commission of Indonesia (KPU), responsible for regulating the technical implementation of political party verifications, divides the process into two stages, namely administrative and factual verifications. As its namesake, administrative verification entails the verification of submitted documents such as the political party registration documents. During this stage, the KPU would scrutinize for individuals with more than one membership to political parties and those that do not meet the requirements to contest.  This includes cross-referencing the list of names of members of political parties against copies of their political party membership cards (KTA) and identity cards (KTP), and checking signatures and stamps on each document.

In the second stage, the factual verification, the senior management of political parties are verified. This includes visiting the headquarters of political parties to verify the names of the Chairperson, Secretary General, and General Treasurer, while ensuring that 30% of the senior management are filled by female members. Additionally, the KPU must also verify and ensure the validity of the domicile of political parties’ headquarters as listed in the registration documents.

The Constitutional Court’s Inconsistencies in Defining the Verification Process

Prior to the Constitutional Court’s Decision 55/2020, the Constitutional Court had previously issued two other decisions, namely Decision 52/2012 (which was the result of the judicial review regarding the 2014 Election) and Decision 53/2017 (the result of a judicial review for the 2019 election). With Decision 52/2012, all political parties must be verified to become election contestants. This is to avoid imposing different conditions or unequal treatment on parties wanting to contest.

Meanwhile, Decision 53/2017 culminated from a judicial review of the lawsuit filed by the ‘Idaman’ Party—a newly formed political party participating in the 2019 General Election. This political party felt disadvantaged by the provisions of Article 173 paragraph (3) of Law 7/2017 which stated that political parties that have passed verification in the previous elections do not need to be re-verified and can be directly designated as election contestants. With Decision 53/2017, it was re-instated that all political parties—both new political parties and political parties that contested in the 2014 General Election—were required to be verified in order to become election contestants. Thus, both the Constitutional Court Decisions 52/2012 and 53/2017 consistently applied the principles of equality and justice for every political party. Additionally, in 2017, the Courts agreed that bypassing factual verification contradicted the spirit of capping the number of political parties the political system in Indonesia.

However, in the latest Constitutional Court’s decision (55/2020), the Panel of Judges held a different view from previous decisions, namely political parties that have previously passed the verification process in 2019 and the PT are only required to undergo administrative verification. This decision, thus, goes against the Court’s previous principles of equality and the spirit of simplification.

The Logic Behind Decision 55/2020

In the Court’s consideration for Decision 55/2020, they deemed it unfair for all political parties participating in the 2024 General Election to undergo the same verification process, especially when numerous parties had successfully participated in the previous General Election. These parties, according to the Constitutional Court, had previously passed both administrative and factual verifications—considered an arduous task and quite an accomplishment. Apart from the requirements described previously, political parties must also meet other requirements such as satisfying the minimum number of members at the provincial, district/city and sub-district levels. Participants in the 2019 Election must also surpassed the PT for the Legislative body (DPR). Considering these past accomplishments, the Constitutional Court considered it unfair to equate old political parties with new political parties.

The Constitutional Court argued that Decision 53/2017 was an attempt to uphold the principle of equality before the law but lacked the enforcement of the principle of justice because it applied equal treatment to Election Contestants that were to be treated differently.

Reactions to and Implication of Decision 55/2020

Saldi Isra, a judge in the Constitutional Court, expressed a dissenting opinion on the decision. He iterated that Decision 55/2020 had contradicted the previous Decision 53/2017 requiring re-verification to cap the number of political parties participating in the election. Furthermore, the verification of political parties, both administrative and factual, is part of an intentional design to strengthen the Presidential system of governance. He further stated Decision 53/2017 was in accordance with Indonesia’s guiding constitution—the 1945 Constitution.

Similarly, Decision 55/2020 was not supported by several Civil Society Organizations (CSOs). The Association for Elections and Democracy (Perludem) advocates that all political parties must continue to undergo factual and administrative verifications given the dynamic conditions of political party membership. Additionally, Perludem argued that the Constitutional Court’s decision was not based on justice if only new parties or those that did not previously meet the requirements are required to undergo more extensive verifications. The Constitutional and Democratic Initiative (KODE Inisiatif) also considered Decision 55/2020 to be contrary to the previous Constitutional Court’s decision and is considered to be against the principle of the elections. They argued that political parties which had previously passed the PT will not always qualify as parties participating in the election because of dynamism within political parties. This dynamism is attributed to the constant change in party leadership due to internal conflicts which could lead to circumstances such as factionalism and dual leadership.

Meanwhile, Jazilul Fawaid—the Deputy Chairperson of the National Awakening Party (PKB)— supported Decision 55/2020. Representing a political party that will benefit from Decision 55/2020, he believed that based on previous Elections, political parties that have satisfied the PT are likely to pass the administrative and factual verifications again. He further argued that requiring all political parties to undergo both verifications will entail higher government expenditure.

Despite the arguments, verification is not only a mechanism that could be regulated constitutionally but also tends to oscillate between being favorable to old political parties and viewing both old and new political parties as equal. With Decision 55/2020, the Constitutional Court themselves would be responsible for the potential increase in political parties contesting in the 2024 Elections. This decision also defeats the intended purpose of verification as a mechanism for simplifying the political system in Indonesia.