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Indonesia: Constitutional Court Ruling on Political Office

(July 13, 2015) On July 9, 2015, Indonesia’s Constitutional Court issued a decision revoking a provision of a recent law on regional elections. (Decision No. 42/PUU-XIII/2015, Constitutional Court website (July 9, 2015) (in Indonesian).) It found article 7 of the 2015 law, which prohibits individuals with blood or marital ties to incumbent regional leaders from running for local offices, including governorships, to be unconstitutional. (Yustinus Paat & Carlos Paath, ‘Political Dynasties Legalized’ as Court Allows Leaders’ Relatives to Run for Office, JAKARTA GLOBE (July 8, 2015); Law of the Republic of Indonesia No. 8, 2015, Concerning the Amendment of Law No. 1, 2015, on Transforming into Law the Government Regulation in Lieu of Law No 1, 2014, on the Election of Governors, Regents, and Mayor, House of Representatives website (in Indonesian).)

The constitutional basis for the decision, according to Judge Patrialis Akbar, is that “Article 7 violates article 28 of the 1945 Constitution. The article [of Law No. 8, 2015] is also against the law on human rights and violates the principles of civil liberties as stipulated in the International Covenant on Civil and Political Right [sic] [ICCPR] which [Indonesia] has ratified.” (Paat & Paath, supra; Undang-undang Dasar Negara Republik Indonesia Tahun 1945 [Constitution of the Republic of Indonesia 1945] (as last amended in 2002), House of Representatives website; The 1945 Constitution of the Republic of Indonesia (as last amended in 2002), World Intellectual Property Organization website (unofficial translation); International Covenant on Civil and Political Rights (adopted by U.N. General Assembly Resolution 2200A (XXI), Dec. 16, 1966; in force from Mar. 23, 1976), Office of the High Commissioner for Human Rights website.) Article 28 of the Constitution states, “[t]he freedom to associate and to assemble, to express written and oral opinions, etc., shall be regulated by law.” (The 1945 Constitution of the Republic of Indonesia, supra.)

A second Judge, Anwar Usman, pointed out the legal ambiguity that could result from the fact that the law in question does not clearly define the word “incumbent.” (Paat & Paath, supra.)

Background

The ruling was in a case brought by Adnan Purichta Ichsan, who is a member of the South Sulawesi Regional Representatives Council with a father who is the head of the Gowa district (located within South Sulawesi Province) and an uncle who is the Governor of South Sulawesi. The plaintiff is considering running for the district head position, following the end of his father’s term; his grandfather had also been head of the Gowa district. Ichsan argues that the law impinges on his constitutional rights. (Id.)

Advocates of the controversial provision in the Regional Elections Law argue that it prevents the formation of family political dynasties and thus reduces patronage, cronyism, and bid-rigging. It has been reported that there are a number of such regionally powerful families in Indonesia. (Id.)

Reaction to the Decision

Some commentators have condemned the decision on the grounds that it will mean that strong families can block outsiders from attaining office. Hendri Strio of Paramadina University in Jakarta noted that “the Court should have not only considered the restriction from a formal standpoint but also the people’s sense of justice. … [The decision] will also prevent the emergence of new and qualified figures. Because political dynasties will flourish and give birth to small kings and their puppet leaders.” (Id.)

Nico Hardjanto of the Jakarta-based Populi Center agreed with Strio, arguing that the decision would be harmful to democracy and lead to unfair elections, dominated by people with ties to those already in office. (Id.)

Speaking in general support of the Court’s ruling, Minister of Law and Human Rights Yasonna H. Laoly stated, “[w]e can’t complain about the ruling although we considered every aspect of … [the issue] when drafting the law. But we agree that this concerns constitutional rights and the Court is the guardian of the Constitution.” (Ina Parlina, Possibility of Local Dynasties After Court Ruling, JAKARTA POST (July 9, 2015).)