The integrity of the 2024 general election has been undermined by the recent decision to retain six justices on the Constitutional Court even though they have been found guilty of having committed ethics breaches when they issued a recent ruling related to the presidential election.

The court is the final arbiter of electoral disputes, and the continued presence of these six justices raises questions about the court’s credibility.

With the court’s integrity compromised, it could pave the way for the losing presidential candidates or political parties to reject the results of the election. In 2019, challenger Prabowo Subianto denounced the results after he lost the presidential election to the incumbent President Joko “Jokowi” Widodo, proclaiming “massive, structured and systematic” fraud. His supporters went on a violent rampage outside the Elections Supervisory Body (Bawaslu) in Central Jakarta.

This has become a global trend, where the losing candidates reject election results and later incite supporters to violence. Donald Trump did it in the United States in 2021 after he lost to Joe Biden, and incumbent Jair Bolsonaro did so this year in Brazil after he too lost the election Luiz Inácio Lula da Silva.

No one should tamper with the election’s integrity, least of all the country’s highest court.

The Constitutional Court issued a ruling in October, with a 5-4 majority, that made an allowance for someone younger than the minimum age of 40 years to run for president or vice president provided they had served as an elected head of a regional government.

The timing of the ruling smacks of nepotism, as it came in time to allow the son of President Jokowi, 36-year-old Gibran Rakabuming Raka, to run for vice president. The court’s chief, Anwar Usman, is the husband of Jokowi’s younger sister. Uncle Anwar was clearly doing nephew Gibran a big favor.

The court’s ethics council, set up in response to strong public demands for investigation, found six justices guilty of committing ethical violations, and chief Anwar was singled out for the most severe violation. The law on the Constitutional Court allows for the dismissal of justices, but the council only gave them verbal reprimands. Anwar was also removed from the position of chief justice but remained a justice on the bench.

The ethics council’s chief, Jimly Asshidiqui, said the court had become too permissive of the culture of ewuh pakewuh, a Javanese expression meaning unquestionably accepting the authority of your seniors, such that justices’ decisions were being affected. This meant that Anwar must have commanded so much authority and power that some of the other justices simply agreed to his wishes, which they presumably interpreted as reflecting the wishes of the President.

What’s more

The council never used the words “nepotism” or “collusion” in its decision, but Jimly in his statement said the court had also allowed conflicts of interests to affect its decision. Jimly may have been a good choice to lead the council since was once chief justice of the Constitutional Court, but observers recalled that three months before he had publicly expressed support for Prabowo Subianto, now the frontrunner in the 2024 presidential election, and that his son works for Prabowo’s Gerindra Party.

Some civil society organizations have filed a complaint with the Constitutional Court ethics council demanding an investigation into potential conflicts of interests that could have affected Jimly’s decision.

Whatever the outcome of this petition, it will not change the court’s ruling. Jimly, in a press conference announcing the ethics council’s decision, said the court’s ruling carving out an age exception would not change and that the election should continue under the new rule. Gibran is good to go.

Even more bizarre was the decision of the General Elections Commission (KPU) in accepting the nomination of Gibran as running mate to Prabowo. The Constitutional Court ruling came on Oct. 23. Prabowo and Gibran registered with KPU on Oct. 26, even though the KPU had not changed its statutory minimum age requirement. This only came a few days later. The rules of the game are changed to suit the wishes of the powerful.

On Nov. 9, the nine-member court elected justice Suhartoyo as its new chief, replacing Anwar.

“Our first priority now is to regain the trust of the people,” he pronounced after his election.

Whether this is possible depends very much on how much damage the whole episode has done to the credibility of the Constitutional Court and that of the electoral commission. From past experience in Indonesia and abroad, the losers will have the perfect reason to reject the election results, with all the consequences, including possible violence.

What we’ve heard

A senior official of the Constitutional Court said that new Chief Justice Suhartoyo will establish a permanent, instead of ad hoc, honorary council to restore the reputation of the Court.

During Anwar Usman's leadership, the council was formed on a temporary basis, allegedly due to numerous reports of ethical violations and conflicts of interest involving Anwar. "The formation of a permanent honorary council has been proposed since early 2023," said the source.

To prevent further conflicts of interest, the council has barred Anwar from adjudicating presidential election disputes. Anwar cannot hear cases related to legislative election disputes either because his other nephew, Kaesang Pangarep, who now chairs the Indonesian Solidarity Party Chairman, may challenge the election results.

"We decided to bar him (Anwar) from adjudicating all legislative election disputes, although originally the council wanted to prevent him from getting involved in the settlement of election disputes involving PSI," said this source.

Disclaimer

This content is provided by Tenggara Strategics in collaboration with The Jakarta Post to serve the latest comprehensive and reliable analysis on Indonesia’s political and business landscape. Access the latest edition of Tenggara Backgrounder to read the articles listed below:

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1. Opinion surveys offer more questions than answers
2. Jokowi administration records most ministers involved in graft
3. Ganjar-Mahfud’s blueprint for Indonesia’s future               

Business and Economy

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2. Pro-Israeli goods and firms hit by MUI boycott fatwa
3. Recent RI-US meetings signal stronger cooperation
4. Minimum wage formula regulation drew labor opposition

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