Tim Lindsey, The University of Melbourne and Simon Butt, University of Sydney
A decade ago, Joko (Jokowi) Widodo was an outsider candidate whose carefully cultivated “everyman” persona swept him into Indonesia’s presidential office. To get there, he had to overcome opposition from many rich and powerful figures.
However, he soon built a formidable political coalition, and he and his family are now firmly part of the oligarchic ruling elite. So much so, that many members of that elite fear their access to political and economic power could be disrupted if he leaves office.
By law, Jokowi’s time in office is limited. In 1998, Indonesia’s longest-serving president, Soeharto, was forced to step down after 32 years in power. One of the constitutional priorities after his fall was to prevent a repeat of his long rule, which had become associated with military repression and corruption.
In 1999, the Constitution was amended to prevent presidents serving more than two five-year terms. This was seen as a non-negotiable part of the reforms that delivered Indonesia’s transition to democracy.
Elections for the presidency and legislature are now due on February 14, 2024, and, because Jokowi has already been elected twice, he cannot run again.
But in reality, things are not so simple. For some years, powerful politicians, including Luhut Panjaitan (Jokowi’s close adviser and so-called “minister for everything”), have been proposing ways to keep Jokowi in the palace. These range from amending the Constitution to remove the two-term limit to “postponing” the elections because of the COVID pandemic.
These proposals have received little public support and have been roundly rejected by most civil society groups, which are important drivers of public opinion and policy-making in Indonesia.
Jokowi himself has been inconsistent. At times, he has rejected calls for him to stay in office. Other times, his statements have been more ambivalent. Rumours of his involvement in plans to keep him from losing the presidency continue to abound.
Court decision causing election uncertainty
The idea of Jokowi staying in power just won’t go away.
In fact, it is dominating headlines again after the Central Jakarta District Court issued a shock decision in early March ordering the General Election Commission to postpone the 2024 elections.
The court ruled in favour of Partai Rakyat Adil dan Makmur (PRIMA), a very small party that claimed the commission had unfairly disqualified it from running in the elections. The court awarded PRIMA compensation and ordered the elections be postponed for two years, four months and seven days. It gave no clear explanation for this very specific time period.
As it stands, this decision could force the election commission to postpone the elections, and, presumably, leave Jokowi and the current legislators in office as “placeholders” until new elections can be held.
But, in our view, there is no legal basis for the court’s ruling.
For a start, the court should have refused to hear the case because it lacked jurisdiction. The Supreme Court has clearly determined that in cases where a plaintiff wishes to sue the government for performing an unlawful act, it can only do so in the administrative courts.
In fact, before suing in the district court, PRIMA had appealed to the Jakarta Administrative Court, but that court dismissed the claim, saying it lacked jurisdiction. That should have been the end of the matter.
More problematic still, the district court issued a judicial remedy that does not exist in the law. The 2017 Law on General Elections allows the election commission to hold “further elections” (pemilu lanjutan) or “follow-up elections” (pemilu susulan) in extreme circumstances, such as natural disasters or unrest. The commission may postpone an election in such circumstances, but it can only do this for specified locales – not nationally.
In other words, only the election commission can postpone an election, not a district court. And not even the commission can postpone a national election.
This case also exposes major gaps in Indonesia’s judicial system. For one, the district court ruling, if enforced, leads to a clearly unconstitutional result.
The Constitution says elections must be held every five years, but the court’s decision could delay things until 2025 or 2026, meaning six or seven years would pass between elections.
Only the Constitutional Court has clear authority to make decisions about the implications of the Constitution, but it cannot review lower court decisions. This means it cannot step in and fix the problem created by the district court.
There are even fears the district court decision might prompt the government to attempt to amend the Constitution to provide a basis to delay the election, or even remove the two-term limit on presidents.
In any case, the PRIMA case has now been appealed to the Jakarta High Court. A decision could take some time and is likely to be appealed to the Indonesian Supreme Court.
The potential fallout from a postponement
The run-up to elections is always a time of intense political manoeuvring in Indonesia. Presidential and parliamentary candidates for next year’s elections have also not yet been finalised.
This means the PRIMA case – and the uncertainty it has created – is generating a lot of heat. With little public enthusiasm for postponing the elections, and fears the higher courts may make the situation worse, there is now intense pressure on the election commission to allow PRIMA to run, thereby defusing the issue.
At first, the commission had said it would push ahead with preparations for elections next February, as scheduled, but there are now reports of negotiations between PRIMA and the commission.
Agus Harimurti Yudhoyono, the son of former President Susilo Bambang Yudhoyono and a rising politician himself, gave a fiery speech earlier this month in which he warned that postponing the elections would result in “chaos” and make the “world view Indonesia as a banana republic”.
It’s a fair point. Many observers already believe Jokowi’s time in office has led to democratic regression, with Indonesia slipping in the Freedom House rankings. Jokowi himself has publicly said he thinks Indonesian democracy has “gone too far”.
A delay in elections or a constitutional change to allow Jokowi to run for a third term would only confirm this trend.
But that won’t stop the powerful figures who have benefited politically and financially from Jokowi’s presidency from trying to find ways to keep him there if the PRIMA case fails to do so.
Tim Lindsey, Malcolm Smith Professor of Asian Law and Director of the Centre for Indonesian Law, Islam and Society, The University of Melbourne and Simon Butt, Professor of Indonesian Law, University of Sydney
This article is republished from The Conversation under a Creative Commons license. Read the original article.