VIII. Democracy, Over Regulated

In under two weeks Indonesia will celebrate its 77th year of independence. Everywhere I walk I see homes, businesses, and government buildings adorned with the Indonesian flag, a bold red and white that, according to Sukarno, stands for courage and purity. As I have reminded colleagues and friends of my departure, their response is always sadness that I will miss Independence Day.  

The Constitutional Court draped in Independence Day flag decorations.    

But amid all the patriotism, there’s a hollowness. As I’ve come to understand the weaknesses of Indonesian democracy, I’ve asked my hosts more and more about the upcoming 2024 elections. For them, there’s doubt there will even be elections, and if there are, they won’t mean much. After a lengthy review of relevant legislation, court decisions, and political dynamics, I think they’re right, or at least not altogether wrong.

My primary research project this summer has focused on something called the presidential candidacy threshold, but as these things always go, I’ve ended up consuming a significant amount of general election rules and rulings that, when taken together, are extremely troubling. In this entry, I want to set the electoral stage, unpack the presidential candidacy threshold, and highlight some recent developments that put Indonesian democracy in danger.

The Framework of Elections

The central thing to understand about Indonesian democracy is that it hinges almost entirely on political parties. To a degree, you could say this about any modern democracy, but a combination of constitutional provisions and election statutes have created a party system that is opaque and very difficult to disrupt.

To begin, the drafters of the Indonesian Constitution baked an identity crisis into the system of government. Judges and scholars declare repeatedly that Indonesia has a presidential system, which is true to a degree. The president is independently elected, rather powerful, and parliament (the DPR) can only remove them through a difficult impeachment process. I’ve seen it noted that the Indonesian president lacks veto power, but they ignore the fact that the Constitution requires a “joint agreement” between the president and the DPR in order to draft and debate legislation. If agreement is reached and parliament passes a law, the president cannot stop it, but the president can stop any DPR action by simply not consenting to it in the first place. When combined with the president’s ability to issue interim laws that are subject to later DPR approval, the president can essentially rule through executive decree by repeatedly reimposing unapproved orders. Because the DPR’s power of impeachment is limited to specific actions and subject to Constitutional Court approval, there’s functionally no way to punish a president from doing this besides voting. For reasons outlined below, that is an exceptionally weak check.

But Indonesia isn’t a pure presidential system. By instituting proportional representation at every level of legislative elections, the national and regional parliaments are never dominated by a single party, requiring parties to form coalitions to achieve a majority. Currently, ten parties are represented in the DPR, and while their seats are not distributed evenly, the leading party (PDI-P) only controls 22% of seats. This forces the president, who at this time is also PDI-P, and party leaders to cobble together another 29% of seats to form a majority, creating an almost bi-furcated prime ministerial obligation for each. This has traditionally been managed by granting opposition parties significant power in government, as happened after 2019 with the appointment of the opposition presidential candidate to the role of defense minister. This may seem like a fruitful form of compromise, but the bargaining process usually results in absurd parliamentary majorities that negate any meaningful opposition. Right now, 87% of DPR seats are in the president’s coalition, foiling voters’ intent to elect candidates and support parties that may resist the president.

This arrangement gets even more complicated when factoring in that the president and parliament are elected at the same time and both to five-year terms. Once elections are conducted, there’s no way for the public to register dissent until the next election, at which point the cycle simply repeats itself. This doesn’t necessarily have to happen based on the structure of the electoral system alone. Opposition parties could simply refuse to join the majority. But a potent cocktail of weak leadership, abject corruption, and lack of institutional incentives almost always ensure that parties abandon their campaign platforms and join forces with the president.

The cup from which I drink coffee each morning. It puts one in the right headspace.

The cowardice of party leaders is reinforced by several legal restrictions, chief among them is the focus on parties as the vehicle of public will. Independent candidates are not constitutionally permitted, and although parties are now required to list their candidates on the ballot and must award the seat to the party candidate that receives the most votes, candidate selection is left entirely up to the party. There is no primary system that allows for public input, the process itself is completely non-transparent, and if a party revokes a sitting legislator’s party membership they lose their seat in the DPR. Voters can control the number of seats a party has based on who they vote for, but the substantive representation that comes from who actually legislates is entirely the province of parties.

Given the preeminence of parties, the public has often turned to creating new ones that might be free from existing influence. This brings us to the second major issue with the overall framework: party and election regulations make this very difficult to do, and they have been implemented at critical junctures in the development of Indonesian democracy. During the first two election cycles of Indonesian democracy, the DPR restricted participation based on previous election results, which pushed smaller and newer parties out of the system. These were done away with, but the damage was done. The strongest parties continue to be those that were active in the pre-democratic Suharto era.

The DPR then opted for a parliamentary threshold which required parties to receive a certain percentage of national votes to be awarded any seats. These are common in many democracies, but the DPR has steadily increased the threshold, and has suggested it could get as high as 7% in coming elections. Alone, the threshold would not necessarily prevent democratic access, but additional restrictions impose serious hurdles for parties to be legally recognized by the government and permitted to stand for elections by the national election commission. To name a few, parties must maintain permanent offices in every province, 75% of the regencies in each province, and 50% of the districts within each regency. Before each election, they undergo a lengthy approval process that verifies everything from their party membership to their party symbols. The result is an organizationally and financial arduous process that makes party formation challenging. By the time the election actually happens, winning sufficient support to have seats in parliament is that much more difficult.

The Presidential Candidacy Threshold

The DPR has justified most of its electoral regulations by pointing to the need to strengthen the Indonesian presidential system. They claim that presidential systems struggle with large multiparty systems, so reducing the number of parties is an important goal to stabilizing presidential democracy. Beyond the theoretical problems with this, it’s a dubious argument coming from parties with the institutional and financial resources to overcome the regulations they tailor to be just below what they can afford.

This couldn’t be clearer than with the presidential candidacy threshold (PCT), a statutory requirement that limits the nomination of presidential candidates to parties or coalitions of parties with at least 20% of seats in the DPR. Constitutionally, parties are granted exclusive authority to propose presidential candidates. The Constitution provides that candidates compete in first round elections wherein the winner must attain at least 50% of total votes and at least 20% of the votes across half the provinces. If no candidate accomplishes this, the top two vote getters advance to a run-off in which the candidate with a majority of votes wins.

Article 6A(2) of the Constitution limits this ability to parties who are participating in the election, and provides no qualifications for how a party is allowed to participate. However, the article explicitly grants a right of proposal to election participants. Based on the text of the Constitution, it is clear that whether parties are legally recognized and permitted to participate is a legislative question, but once a party meets these requirements, they may nominate presidential candidates. The DPR disagrees, imposing a 20% DPR seat threshold on parties to exercise their constitutional right. They claim the same rationale here as they do with other election regulations: the need to simplify the party system by reducing the number of viable parties.

To start, the DPR is factually correct. The PCT places smaller parties in a subservient position to larger parties which leads to a more predictable party system, given that only larger parties that enjoy less threat from other parties can propose candidates. Less fortunate parties can cobble together a coalition to overcome the requirement, but in practice this doesn’t really happen. Instead, the three or four more established parties each buy their way over the threshold by partnering with one or two small parties in exchange for potential future influence, or they form bizarre mega-party coalitions that leave few seats left to be traded. And since the presidential candidate is always the figure that attracts the most attention on election day, small parties campaign diligently for the coalition’s candidate, but their larger counterparts are usually the ones who benefit. By the time the election is over, small parties have little to show for it beyond a few party leaders winding up in the president’s cabinet. They don’t grow their seat total and instead help large parties stay big.

Some of this is simply the hard scrabble of real politick. There is nothing wrong with parties negotiating among themselves; it often breeds consensus. But this is already captured by majority coalition formation that takes place in the DPR, and it flies in the face of both the constitutional right of parties to nominate candidates and the run-off election envisioned by the Constitution. Furthermore, it essentially closes off the system to new parties, which is my chief concern.

As stated, elections for president and parliament take place simultaneously and for the same length of service. Because of this, the PCT relies on election results from five years prior. When the PCT was originally enacted, parliament was voted on first, seats were allocated, and the parties would propose presidential candidates for an election 3 months later. This arrangement was invalidated by the Constitutional Court, mandating synchronized elections, but the PCT remains unchanged. What began as a sort of popularly elected prime minister–a head of government proposed by successful legislative coalitions to be voted on directly–has become a retrospective restriction that ties current candidates to past results.

What results is a process in which new parties cannot get a foothold. Previously, a new party could form, stand for election, potentially win 20% of legislative seats, and then propose a presidential candidate. This is exactly what happened in the 2004 elections, which led to a presidential reelection in 2009. At the very least, they can accumulate enough seats to force established parties to a genuine bargaining table. It’s how the current president of France and his party came to power, and it’s what is allowed for through the U.S. presidential primary system. Groups of people can rally around a new or independent candidate, muster enough support, and inject their platform into the political system.

American readers may react skeptically to this; after all, every president in modern history has come from one of the same two parties. But it would take an enormous amount of cynicism, or at least a tremendous lack of knowledge, to claim that the candidacies of Bill Clinton, George W. Bush, Barack Obama, Bernie Sanders, or Donald Trump did not reorient U.S. politics. In Indonesia, these individuals would have to infiltrate deeply entrenched party apparatuses and win over party elites, not voters. Democratic and Republican party officials rejected all of these candidates, and worked rather hard to prevent their campaigns. Four of them became president anyway, and Sanders caused untold party upheaval across two election cycles, nearly winning the nomination in the second go around.

This type of disruption is basically impossible under the PCT. New parties, by their definition, have no seats with which to overcome the threshold or broker with other parties. Perhaps they can make a strong showing in Election A and then turn that into success in Election B, but that is a 10-year period during which political dynamics can shift and it buys incumbent parties considerable time to meddle with election rules to keep them shut out. The DPR, through its previous tightening of party formation, participation, and parliamentary threshold regulations ahead of each election, has shown a willingness to do just that. In theory, a truly popular new party could maintain enough support through media campaigns and activism, but between the arduous party formation requirements and the objective difficulty in holding the public’s attention for a decade, this is hardly an option.

Regrettably, the Constitutional Court has upheld virtually every election regulation the DPR has passed, including the PCT. Much of my research this summer has been analyzing the jurisprudence of these decisions, and I’m here to the say: the Court is not going to save democracy from these types of laws. For all the non-PCT laws, the Court has consistently ruled that regulating elections is a matter of “open legal policy,” meaning it is a matter left up to the legislature. I agree with this. For better or worse, constitutions cannot anticipate all the needs of a democratic system, and the DPR should have wide latitude to govern the electoral system with good or bad policies.

However, for the PCT, the Court has gone much further, reading into the Constitution a guarantee of the supposed “strengthen the presidential system by party simplification” argument by the DPR. Majorities on the Court have issued lengthy decisions that read like intro level political science papers on presidentialism. One especially egregious ruling actually enumerates “commonly recognized” traits of presidential systems, a list that stretches over 20 characteristics and includes exactly zero scholarly sources. Others attempt to project what would happen in the absence of the PCT, portending doomsday scenarios of gridlock and a DPR at war with itself while a helpless president just struggles to do right by the public. With due deference to the learned justices, they rather embarrass themselves in going to such great lengths to defend the DPR, especially when each decision boils down to a simple textual argument that the Constitution grants parliament the power to regulate presidential nominations in the same way it regulates elections generally.

And unfortunately, if one is to take the decisions at face value, the Court has backed itself into a corner by endorsing a Constitution that envisions a strong president with a limited party system. Never mind the fact that all the Constitution does is lay out the powers and responsibilities of the executive, the Court has embraced a jurisprudential test that cannot be reasonably satisfied. If laws fail to foster presidentialism, they appear to be susceptible to constitutional challenge. If laws strengthen, or are argued to strengthen, presidentialism, they appear nearly indestructible. More troubling, the Court has never said what would constitute a “strong” presidential system or a “simplified” party system. Is it just whenever the DPR says so? So far, that seems to be the case, regardless of other constitutional provisions that the Court dismisses or ignores.

The combination of election regulations, the PCT, and the willingness of incumbent parties to alter the rules of the game sets up a dangerous spiral. Indonesian democracy is defined by a strong president with a stabilized party system, but it comes at the expense of actual democracy and the ability of the system to self-correct quickly. If the wrong group of people get control of government, Indonesia is stuck with them all for at least five years, and even if they lose, most will simply defect to the new government and shore up support. By my read, it’s the situation that Indonesia finds itself in right now, and the only people capable of stopping it are the perpetrators.

The Road to 2024 (Hopefully)

To conclude, I want to leave legal considerations aside for a moment and focus on the very real possibility that all of the regulations outlined above may not matter in 2024 at all. That’s because there’s a serious threat that elections will be canceled, postponed, or further regulated to death.

President Jokowi, elected under the banner of reform and good governance, has abandoned his promises of democracy. His party has vocally called for amending the Constitution to grant him a third term, and the coalition they lead in parliament has so far failed to pass the necessary funding to conduct upcoming elections. Legislative sessions are, of course, not open to the public and the proceedings are either not recorded, edited, or released months after they happen. Watchdog groups like PUSaKO are left to parse stray comments made by party leaders, and they aren’t encouraging. In addition to the third term idea, government officials have alluded to the need to allocate resources to infrastructure development, suggesting there is just not enough money to properly fund elections right now. Some have stated that elections may lead to too much public disorder, a favorite red herring of Indonesian legislators and judges. Others have hinted that COVID-19 may make voting centers too dangerous. I read that one while sitting in a crowded Jakarta café.

When leaders say these sorts of things, they aren’t expressing concern. They’re testing excuses, excuses that threaten basic democratic functioning.

Other problems abound. In an extraordinary ruling, the Court weeks ago granted sitting justices tenure extensions that were supposed to only apply to newly appointed judges. Given the recklessness of their election regulation jurisprudence, this sort of decision shouldn’t surprise anyone. While the Court has done remarkable work over the last two decades, its demonstrated comfort with upholding laws that it simply likes. And even if the Court were willing to stand up to a presidential or parliamentary election postponement, its not clear it would make any difference. Once leaders are willing to cancel elections, they’re not likely to respect Court orders.

Everything could work out, of course. Circumstances can change quickly, and neither Jokowi nor his party have an especially strong ideological commitment to destroying liberal democracy. If enough party leaders decide its simply too much trouble or risk, the threats could end as mere murmurs. Still, it is distressing that politicians will pay little price for these statements, given how insulated parties are from public criticism. It’s possible that PDI-P will lose some support for dancing with the devil, but the remaining parties have shown little courage of their own. In fact, PDI-P has historically been the party most willing to embrace democratic norms.

In a more open election system, the civic community might be able to marshal enough support to send a new party to parliament and create problems in the upcoming presidential contest, but the PCT prevents this. Instead, voters will be left to choose among the other parties, if they choose to break with PDI-P at all. Indonesian leaders have set up a regulatory framework that makes it extremely hard to get off this moving train. My fear is that the conductors don’t mind where they’re heading.