Constitutional Struggles and the Court in Indonesia’s Turn to Authoritarian Politics
| Author | Herlambang P Wiratraman |
| DOI | http://doi.org/10.1177/0067205X221107404 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
Special Issue (Part 2): Constitutional Struggles in Asia
Federal Law Review
2022, Vol. 50(3) 314–330
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DOI: 10.1177/0067205X221107404
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Constitutional Struggles and the
Court in Indonesia’s Turn to
Authoritarian Politics
Herlambang P Wiratraman*
Abstract
Indonesia’s politics has changed dramatically during Jokowi’s administration. Numbers of
scholars argued this situation turns to a ‘new model of authoritarianism’or declining de-
mocracy. The situation is generally referred to as the strengthening of authoritarian politics.
Meanwhile, in such situation, the role of the judiciary is the key to balancing power in au-
thoritarian politics. However, in reality, efforts to encourage constitutional struggle through
the judiciary will easily reverse the situation to lose its independence. The court could play a
significant role in authoritarian politics. This phenomenon has been called the ‘judicialisation of
authoritarian politics’. This article dissects how the process of authoritarian political in-
stitutionalisation through law and the courts has occurred in the two decades after Suharto’s
reforms. Then it examines how civil society changes and the democracy movement have made it
possible to advance constitutional rights in the context of Indonesia’s cartel politics and the
judicialisation of authoritarian politics. The legal argument for such judicial practice is that
authoritarianism has been increasingly institutionalised, facilitating oligarchy networks in a
cartelised political system, so that law and the judiciary merely work to strengthen the chain of
impunity.
Received 16 January 2022
I Introduction
The recent rise of authoritarianism poses a threat to constitutionalism in Indonesia. Such a growth in
authoritarian government has conflicted with the development of rule of law in the country, es-
pecially in the two decades after the fall of former President Suharto in 1998. The end of Suharto’s
administration was followed by constitutional amendments in 1999–2002 which entrenched
democratic changes and respect for human rights in Indonesia’s constitution. Additionally, a number
of state institutions have undergone fundamental changes such as judicial reform, the strengthening
of the presidential system, the establishment of the Constitutional Court and its role in balancing
*Faculty of Law, Universitas Gadjah Mada, Yogyakarta, Indonesia. The author may be contacted at herlambang.perdana@
ugm.ac.id.
power, as well as other ideal models of the state constitutional system that reflect the development of
Indonesian democracy.
However, the situation has changed, especially during Joko Widodo’s administration. Under
President Widodo’s administration, which began in 2014, social and political analysts have
highlighted the country’s‘defective democracy’,
1
‘democratic setbacks’,
2
‘democratic regression’,
3
‘democratic backsliding-democratic recession’
4
and ‘illiberal democracy’.
5
Some research has
noted the return to authoritarian’s models, labelling Indonesia’s transformation an ‘authoritarian
turn’
6
and ‘neo-authoritarianism’.
7
Fealy has described Indonesia as constituting ‘repressive
pluralism, dynasticism and the overbearing state’.
8
The situation in Indonesia is generally referred to
as the strengthening of authoritarian politics.
In the context of the judiciary, the reality of the operation of law and the courts seems to
return to that of Suharto’s authoritarian New Order, particularly in its use of the judiciary as a
political regime tool. As argued by Moustofa, laws and the courts can be employed by au-
thoritarian regimes to consolidate and contest democracy itself.
9
This phenomenon has been
called the ‘judicialisation of authoritarian politics’.
10
The situation is often characterised by
state-led attacks on freedom of expression, increased criminalisation and diminishing civil
liberties.
11
In addition, ever-expanding state surveillance, extra-judicial kil lings such as those
whichoccurredinPapua,
12
and alleged cases of human rights abuses by those linked to the
state’s circle of power, are all manifestations of reduced accountability in Indonesian politics
and governance.
1. MarcusMietzner, ‘Coercing Loyalty: Coalitional Presidentialism and Party Politics in Jokowi’s Indonesia’(2016) 38(2)
Contemporary Southeast Asia 209, 228.
2. Vedi Hadiz, ‘Indonesia’s Yearof Democratic Setbacks: Towards a New Phase of Deepening Illiberalism?’(2017) 53(3)
Bulletin of Indonesian Economic Studies 261, 262.
3. Eve Warburtonand Edward Aspinall, ‘Explaining Indonesia’s Democratic Regression: Structure, Agency and Popular
Opinion’(2019) 41(2) Contemporary Southeast Asia: A Journal of International and Strategic Affairs 255, 255.
4. ‘Indonesia in the Democratic Recession’,Berkeley Political Review (online), 28 March 2017 <https://bpr.berkeley.edu/
2017/03/28/indonesia-in-the-democratic-recession/>.
5. David Bourchier, Illiberal Democracy in Indonesia: The Ideology of the Family State (Routledge, 2015).
6. ThomasPower, ‘Jokowi’s Authoritarian Turn and Indonesia’s Democratic Decline’(2018) 54(3) Bulletin of Indonesian
Economic Studies, 307, 307–38.
7. Herlambang P Wiratraman, ‘Pemilu dan Neo-Otoritarianisme’[Elections and Neo-Authoritarianism] in Feri Amsari,
Khairul Fahmi and Charles Simabura (eds), Prosiding Koferensi Nasional Hukum Tata Negara Ke-5: Tantangan
Menjaga Daulat Rakyat Dalam Pemilihan Umum [Proceedings of the 5
th
National Constitutional Law Conference: The
Challenge of Maintaining People’s Sovereignty in General Elections] (Pusat Studi Konstitusi [Center for Constitutional
Studies], 2018) 98.
8. Greg Fealy,‘Jokowi in the Covid-19 Era: Repressive Pluralism, Dynasticism and the Overbearing State’(2020) 56(3)
Bulletin of Indonesian Economic Studies, 301, 301–23.
9. TamirMoustafa, ‘Law and Courts inAuthoritarian Regimes’(2014) 10(1) Annual Review of Law andSocial Science,
281, 281–99.
10. Ibid 282.
11. UsmanHamid, ‘Indonesia’s Information Law has threatened free speech for more than a decade. This must stop’,The
Conversation (online), 25 November 2019 <https://theconversation.com/indonesias-information-law-has-threatened-
free-speech-for-more-than-a-decade-this-must-stop-127446>; ‘Indonesia: UN experts sound alarm on serious Papua
abuses, call for urgent aid’,OHCHR, 1 March 2022 <https://www.ohchr.org/en/press-releases/2022/03/indonesia-un-
experts-sound-alarm-serious-papua-abuses-call-urgent-aid>.
12. ‘Civil and Political Rights’Violations in Papua and WestPapua, List of issues prior to reporting (LOIPR) for Indonesia
CCPR Session 129, June–July 20200,Amnesty International, 31 May 2020 <https://www.amnesty.org/en/documents/
asa21/2445/2020/en/>.
Wiratraman 315
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