Collapse of Constitutional Court's legitimacy amid the shadow of political dynasties

CNN Indonesia – October 17, 2023
Constitutional Court hearing on presidential age limit lawsuit – Undated (Antara)

Jakarta – The way is now wide open for Solo Mayor Gibran Rakabuming Raka to step forward in the 2024 presidential elections. The Constitutional Court (MK) have given a "red carpet" to President Joko "Jokowi" Widodo's eldest son through a ruling in a lawsuit on the requirements in the Election Law to run as a presidential or vice presidential candidate (capres-cawapres).

Yesterday, the Constitutional Court granted part of a request in case number 90/PUU-XXI/2023 by stating that Article 169 (q) of Election Law Number 7/2017 on the 40 year minimum age limit for presidential and vice presidential candidates conflicts with the 1945 Constitution and no longer has binding legal force.

The constitutional justices changed this to a minimum age of 40 or having been elected as a regional head. Meaning people who have not yet turned 40 can step forward as presidential or vice presidential candidates as long as they have experience as regional heads or were elected to other government positions through an election.

A number of constitutional law experts have ridiculed the Constitutional Court following the ruling.

Constitutional and Administrative Law Society (CALS) member Herdiansyah Hamzah 'Castro' believes that the Constitutional Court is no longer the guardian of the constitution, but has instead become the "guardian of the family".

This is connected to the relationship between Constitutional Court Chief Justice Anwar Usman and Gibran, as uncle and nephew. According to Castro, the Constructional Court's reputation is now in tatters.

"The MK's ruling to grant the request on the requirements for a capres-cawapres has not only undermined public trust in the MK, but has also demolished the pillars of the institution as the guardian of the constitution. This pillar has now changed to become the guardian of the family", said Castro when contacted on Tuesday October 17.

"The MK's reputation is in tatters because of the justices' behaviour and way of thinking which is ridden with political lust rather than reasoned thinking", he added.

According to Castro, the court's ruling, which appears to accommodate Gibran's interests in the 2024 elections, will have a huge impact. Castro alluded to the legitimacy of the elections.

"Of course this ruling will have a huge impact. There will be a crisis of legitimacy with the MK's next ruling, including rulings on election disputes in 2024. This situation could be dangerous if the MK is not cleaned up immediately", said the Mulawarman University (Unmul) educator.

Castro is offering a solution to restore the MK's reputation. In the short term he is urging the immediate formation of a Constitutional Court Honorary Council (MKMK) to look into ethical violations by Chief Justice Anwar Usman.

"On the grounds that the person concerned was involved in a conflict of interest in a decision which a quo benefited his own nephew", said Castro.

"In the long term, the MK must distance itself from [political] interests by means of revising the selection process with a system for filing MK justice positions that is independent and impartial", he said.

Jentera Indonesian College of Law (STHI) educator Bivitri Susanti meanwhile said that even before the ruling on the age limit for presidential and vice presidential candidates, the Constitutional Court was being ridiculed by the public.

This can be seen from photographs that have circulated on social media with memes like "Family Court" and a video titled "My Uncle from the MK". He also said that the MK's reputation has suffered a huge drop and its legitimacy has collapsed.

"The legitimacy of the judicial institution right, is actually public trust, and the public's trust in its legitimacy is their argument", Susanti told CNN Indonesia.

"This, right, their argument is really bad. [Even] before yesterday's ruling was announced, right, they were already being ridiculed, there was the 'Family Court', there was the song 'My uncle from the MK', so they were really being ridiculed, really demeaned, and yesterday only reconfirmed this. So, indeed, its reputation has really declined", he added.

Susanti even suggested that the MK has reinforced political dynasties by granting a request that accommodates Gibran's interests in becoming a vice presidential candidate in the 2024 elections. She believes the situation is even worse than during the era of former president Suharto.

This was conveyed by Susanti during a webinar titled The Threat of Political Dynasties Ahead of the 2024 Elections on Sunday October 15.

Gajah Mada University (UGM) legal faculty lecturer Herlambang Wiratraman added that the Constitutional Court is not strong enough to be a counterbalance to power amid the strengthening of the authoritarian and anti-democratic regime.

According to Wiratraman, the Constitutional Court has in fact bowed down to the power of the oligarchy because of the bias in its ruling that is an effort to support the oligarchy's political interests. Instead of referring to it as the "Family Court", Wiratraman prefers to dub the Constitutional Court the "Cartel Court".

"I once wrote about why it is more appropriate for the MK to be referred to as a 'Cartel Court'. When they are only orientated towards or are put or placed in a position that actually lubricates the cartel's interests", said Wiratraman.

"Then to the point of confirming it themselves from each ruling to the next. Both in the last [ruling] on the Job Creation Law or yesterday (case number 90/2023), this confirms, right, the political cartelisation of the state administrative system. Especially in seeing that the MK has actually failed to balance power and has entered the vortex of the oligarchy's power", he added.

Wiratraman also offered a solution to save and restore the MK's reputation. He said that all parties must be aware that the political system is currently at its lowest point because the oligarchy's power has attached itself to the constitutional system.

"The solution is, there isn't any other choice, dismantle the whole oligarchic power system in which they are all tied to one another", he asserted. (ryn/tsa)

[Translated by James Balowski. The original title of the article was "Runtuhnya Legitimasi MK di Tengah Bayang-bayang Politik Dinasti".]