Constitutional Court Rejects Judicial Review of Regional Elections Law

Jakarta Globe, Adelia Anjani Putri & Camelia Pasandaran, Oct 24, 2014

An image of Indonesia's Constitutional Court in session. (JG Photo/Safir Makki)

Jakarta. The Constitutional Court rejected on Thursday a judicial review of the controversial regional elections law on account of a presidential decree rushed out by former President Susilo Bambang Yudhoyono.

“The court doesn’t consider the legal standing of the application and the request for review,” Constitutional Court Chief Justice Hamdan Zoelva said, as quoted by the state-run Antara news agency.

The judicial review was filed by several applicants, including human rights group Imparsial, against a law passed in September by the House of Representatives (DPR) ending direct elections for mayors, district heads and provincial governors. Local leaders would instead be appointed by the Regional Representatives Council (DPRD), ending people’s right to choose officials who wield sweeping powers over large budgets conferred by Indonesia’s highly decentralized political system.

The passing of the law was seen by many as an affront to democracy engineered by losing presidential candidate Prabowo Subianto and his most senior backers in the Red-White Coalition — the bloc of parties that control the majority in the House.

The judicial review of the regional elections law was applied after Yudhoyono issued a presidential decree known in Indonesia by its acronym, Perppu.

Constitutional Court Justice Patrialias Akbar said the Perppu had invalidated the law, and that there were therefore no grounds for a review of a law that no longer existed. The Perppu remains a temporary measure to buy time.

It was issued in desperation by Yudhoyono after his Democratic Party walked out of the House session — in so doing handing victory to Prabowo’s Red-White coalition. But the House will have an opportunity to vote down the Perppu, reinstating the removal of direct elections for regional heads in an example of the complexities of Indonesian law.

Article 205 of the Perppu Pilkada states that “After this Perppu comes into effect, 2014 Law No 22 [the Regional Elections Law] is revoked and no longer valid.”

The lead lawyer for the plaintiffs, Wahyudi Djafar, told the Jakarta Globe that he knew the application for judicial review was dead in the water all along because of the existence of the Perppu, but that the collective behind the court application felt they had no option but to proceed anyway.

“We are aware that the legal objective was non-existent,” he said. “However we had no choice but to proceed with the judicial review appeal and let the justices reject it —something that we already knew would happen.

“We could not retract the appeal because it would mean that we might seem to have second thoughts about our actions and the reasons behind them, hence our legal standing would be lost.

“By letting the court reject the appeal, we maintain our right … if we want to file another judicial review —which we will if the House decides to [overrule the Perppu].”

A constitutional law expert at the University of Indonesia agreed that there was no legal impasse to filing a second judicial review.

“Should the House decide to take down the presidential regulation and revive the local election law, anyone can go to the Constitutional Court and file a new judicial review,” Irman Putra Sidin told the Globe.

Refly Harun, another legal expert, said that President Joko Widodo could issue another presidential decree to replace Yudhoyono’s — should that be voted down by the House.

Prabowo’s Red-White Coalition has defied consensus opinion that it would have disintegrated by now. Most financial analysts, journalists and university academics had predicted some of Prabowo’s coalition parties would have jumped ship to Joko’s camp once the reality of being out of power had sunk in.

That scenario has not been realized, however, and the outlook for direct local elections in the world’s fourth-largest democracy remains uncertain, with more political horse trading and legal wrangling to come.

Wahyudi, the lawyer at the helm of the plaintiffs’ judicial review, said he would play the waiting game to see whether the House voted to reinstate the law, which, in the Globe’s Sep. 26 editorial, was described as having “in one fell swoop thrown the country’s democratic system back into the dark ages of the New Order regime.”

“For now, we’re waiting on the House’s political choice,” Wahyudi told the Globe on Friday. “This is not about legal form — it’s about protecting our right to vote.”