Law academics raise concern over changes to election rules

In a case that has sparked major concern among legal academics, a judicial review overseen by Indonesia’s chief justice, who is the brother-in-law of the country’s sitting president, has cleared the way for the son of Indonesia’s President Joko Widodo (known as Jokowi) to stand as a vice-presidential candidate in next year’s elections.

Indonesia’s election regulations previously set the minimum age of presidential and vice-presidential candidates at 40 years of age, with no limitation on the maximum age. In addition, the regulations also excluded anyone who had ever held a position in the government, both local and national, from becoming a presidential candidate.

This is despite the fact that Indonesia has a presidential system in which the president is also the head of the government.

Almas Tsaqibbirru, a law student at Universitas Surakarta, together with a friend Arkan Wahyu, sought a judicial review in the Indonesian Constitutional Court, known as MK, on the basis that the election regulations had no reasonable basis and ignored the principle of ‘equality before the law’.

In Indonesia’s civil code, the age of an adult citizen is 21 years and the constitution states that all citizens are equal before the law.

The students apparently hired a lawyer, Arif Sahudi, to pursue the judicial review on 23 August. “This particular regulation does not represent equality before the law. Why are those who have experience of doing government service work excluded?” Sahudi said.

On 16 October, the Constitutional Court, led by Anwar Usman, chief justice and brother-in-law of Jokowi, reached a decision that would effectively allow candidates under 40 years of age to stand for election if they had also been regional leaders at a provincial or regency-city level.

Thus the revised version of the relevant article now stipulates that a presidential or vice-presidential candidate “must be at least 40 years old or must have served or be serving in a public position through general elections, including regional government leader elections”.

The decision sparked controversy and heated reactions from the public because the decision now makes Gibran Rakabuming Raka, the 36-year-old son of Jokowi, eligible to stand in the election as vice-president, together with presidential hopeful Prabowo Subianto, the current minister of defence. Despite being under 40, Raka is mayor of Surakarta (also known as Solo), a city in Central Java.

Objections from academics

On 26 October, 15 professors and academics who are members of the Constitutional and Administrative Law Society (CALS) demanded that the Constitutional Court’s Honorary Council (ethics body) remove Usman from his position as chief justice for violating judges’ ethics and the laws of conduct.

They also demanded that the court revoke the decision.

Winning support from a number of law organisations, among them are Indonesian Legal Aid Foundation and Indonesia Anti-Corruption Watch, CALS accused the chief justice of ignoring law for family interest.

“The decision is made to allow his nephew, Gibran Rakabuming Raka to run for vice-presidential candidate. He has breached his oath of upholding the truth and justice,” CALS spokesperson Violla Reininda said.

“The decision has undermined public trust in the Constitutional Court. We demand Usman to be dishonourably discharged,” she asserted.

She argued that Usman had destroyed the reputation and legal supremacy that serve as a foundation for justice for the sake of family interest.

The mounting pressure from the academic circles prompted the Honorary Council to investigate the court’s decision. The investigation on 7 November considered 21 complaints filed against all nine justices of the court who helped make the decision.

A three-member ethics panel, led by former chief justice Jimly Ashiddiqie, found that Usman had committed a serious ethical violation for failing to uphold the principle of impartiality when he declined to recuse himself from the controversial case.

Usman was also found guilty of violating the principle of independence in his privileged role by paving the way for intervention by outside parties in the court’s decision-making process, meddling that the ethics council said led the court to clear the legal barrier preventing Gibran from entering the 2024 presidential race.

Demotion of chief justice

The ethics body was quick to decide upon the removal of Usman from his leadership post (but he remains a Constitutional Court judge). It also reprimanded nine judges for failing to speak out against Usman’s actions.

“The judges collectively allowed the violation of a constitutional justice’s ethical code of conduct to occur, without any serious intention to remind one another, including the chief justice, not to,” Ashiddiqie said in a press conference after the ethics hearing.

“The principle of equality among justices was neglected and the ethical violation has become a normalised habit,” he added.

However, Ashiddiqie clarified that the council does not have the authority to overturn the ruling of the Constitutional Court. Its role is primarily limited to addressing ethical matters and suspected misconduct by judges, he said.

I Dewa Gede Palguna, a constitutional law expert and former MK judge, confirmed Ashiddiqie’s statement, saying that the Constitutional Court decision remains in effect, which means the 36-year-old son of Jokowi is a valid vice-presidential candidate for the upcoming February election.

He said the panel’s sanctions on Usman would not affect the ruling but might help restore public trust in the court. “The Constitutional Court ruling is final and absolutely valid. The MK Honorary Council does not have authority to annul the MK’s decision,” Palguna told University World News on 21 October.