Indonesia: A Family Court?

Former Chief Justice Anwar Usman, also President Joko “Jokowi” Widodo’s brother-in-law, was at the centre of a recent political and legal controversy in Indonesia. Credit: ANTARA FOTO/M Risyal Hidayat.


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.

The views expressed are those of the authors and do not necessarily reflect those of STRAT.O.SPHERE CONSULTING PTE LTD.

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  • Rafsi Albar is the Diana Award-winning co-founder of the education platform FlashCampus and a student researcher at the Faculty of Law, Universitas Gadjah Mada.