Can Indonesia Learn From the Thai Constitutional Court?

—Stefanus Hendrianto, Santa Clara University School of Law

The political drama of the 2014 Indonesian presidential election has ended with the recent Constitutional Court decision to reject the complaint of the defeated presidential candidate Prabowo Subianto and declare that his rival, Joko Widodo, will be the next Indonesian president. In the presidential election that took place on July 9, 2014, Subianto garnered 62.5 million votes, almost 8.5 million votes behind Widodo. Subianto, however, refused to concede and claimed that he has been denied victory by fraud and immediately challenged the election result in the Constitutional Court. Having spent more than three weeks reviewing the case, the Court rejected all of Subianto’s complaints and ruled that there was no evidence of systematic and massive electoral fraud in favor of Widodo.[i]

As the political drama has come to an end, there is an interesting debate in the Court that went largely unnoticed. Yusril Ihza Mahendra, a constitutional law professor cum politician, made a proposition that sparked a new debate on the role of the Court in general election disputes. In the recent presidential election dispute, Subianto’s camp asked Mahendra to testify in Court as an expert. Mahendra urged the Court not only to review the final result of the presidential election, but also to review the constitutionality of the presidential election process as a whole. Moreover, Mahendra recommended that the Court look at the experience of the Thai Constitutional Court in dealing with general election disputes. That Court in turn has been highly interventionist in general elections.

Although Mahendra did not explicitly ask the Court to follow what the Thai Constitutional Court did, the focus of the debate now becomes whether the Thai Constitutional Court provides a good exemplar for the Indonesian Constitutional Court. The review of what happened in Thailand constitutional politics can help answer this question. Earlier this year, the Thai Constitutional Court ruled that the election of February 2, 2014 was unconstitutional. The 2007 Constitution says that the election should be held on the same day nationwide;[ii] however, this proved impossible due to the protests and disruption caused by demonstrations. Consequently, the Election Commission had to arrange for substitute by-elections in some constituencies.

It was the Ombudsmen who filed a petition and asked the Court to void the election on the ground that it had not been held on the same day everywhere in the country. The Ombudsmen has authority to submit a case to the Constitutional Court whenever it finds any constitutional question arising from a provision of any law.[iii] The Constitution mandates the Court to review the Ombudsmen’s complaint without delay and the Court immediately came out with a ruling that the February 2 election was unconstitutional.

Obviously, the nature of election disputes in Indonesia and Thailand are different. The Indonesian Constitution states that the Court has authority to decide disputes over the results of any general election, which includes a presidential election.[iv] A potential claimant in the dispute is any presidential candidate who wants to challenge the result of the presidential election. Furthermore, the Court has prescribed that the object of dispute is the decision of the General Election Commission on the final result of the presidential election.[v]  In Thailand, the 2007 Constitution did not grant explicit authority to the Court to review any disputes over the result of general election.[vi] In the major cases in which the Court nullified the general election, the object of dispute did not directly relate to the outcome of the general election. For instance, earlier this year, Ombudsmen filed a complaint on behalf of Thammasat University lecturer Kittipong Kamolthamwon and claimed that the electoral procedures were unconstitutional.[vii] In the 2006 dispute, the complaints were filed by a Thammasat University law lecturer and the People’s Network for Elections, a Thai watchdog. They argued that the election date was chosen unfairly, that the winners were improperly certified, and that the ruling party had financed campaigns by fringe groups.[viii]

Although the nature of a general election dispute in Thailand and Indonesia are different, there is an interesting point of comparison between the constitutional politics in both countries. In finding this comparison, we might compare the origin of the two constitutional courts. The Thai Constitutional Court was created as an “insurance policy” against populism or electoral defeat.[ix] When the Court was originally founded under the 1997 Constitution, the drafters of the Constitution envisioned the Court as a check on elected politicians. After the September 2006 coup, a military installed government created a new constitutional court under the 2007 Constitution. The new Constitutional Court soon renewed its role as a counterweight to the political forces that closely associated with the deposed Prime Minister, Thaksin Shinawatra.  Under the 2007 Constitution, the Court has authority to dissolve political parties and this power had been invoked in relation to electoral abuses.[x] The bottom line is that the Thai Constitutional Court is the product of a post-political constitution, which involves enhanced efforts to structure and channel democratic power and to limit the role of partisanship.[xi]

The Indonesian Constitutional Court, however, was created in a different context. The series of constitutional amendments that took place from 1999-2002 were designed to limit the role of executive power in Indonesia. Nevertheless, the politicians never intended to create the Constitutional Court as an “insurance policy” against electoral defeat. The constitutional reform process in Indonesia had increased the number of veto players in the country from one (General Soeharto) prior to 1998 to three or four after 1998.  Consequently, it is hard to maintain a strong presidency under the fragmented political configuration in Indonesia, unless the President establishes a firm base of support in the House of Representative, either through coalition or majority control. Therefore, the winning president may also need additional insurance like the impeachment mechanism that was to be supervised by the Constitutional Court. Thus, the Court was initially created as an “insurance policy” for the winning president.[xii]

More than a decade ago, Thailand was the polar opposite of Indonesia. At that time, Thaksin had consolidated political power in his own hands and the post-political constitution was unable to withstand the political influences of Thaksin’s populism. In contrast, the Indonesian political landscape was polarized and then-President Abdurrahman Wahid and his successor Megawati Soekarnoputri scrambled to cling to power. A decade later, Thailand is in political disarray with bleak prospects for a resolution anytime soon. Indonesia, however, has reached a relatively stable political landscape. The first Yudhoyono administration managed to maintain political stability through the combination of political coalition and power sharing. The second Yudhyono administration relied mostly on its majority control in the parliament.

The challenge ahead for president elect Joko Widodo is whether he can survive the political polarization in Indonesia. The political coalition that nominated Widodo only controls 36.7 percent of the seats in the parliament. With less than 40 percent of seats, it will be difficult for Widodo to withstand Prabowo Subianto and his Red and White coalition, which controls 63 percent of seats in the parliament. Widodo and his coalition partners might try to lure some of Subianto’s allies to switch sides. Even if they succeed in dividing Subianto’s coalition base, it is still uncertain whether Widodo can maintain a stable coalition in the long run.

One of the most valuable lessons that the Indonesian Constitutional Court can learn from its counterpart is that the Thai Constitutional Court has not been able to produce a long-term consensus in Thailand. Instead, the Thai Constitutional Court helped to contribute to the extreme polarization of 2005 – 2011. Nor has its recent decision in 2014 helped to bring an end to the violent and highly confrontational politics in the country. The Indonesian Constitutional Court justices should seriously consider whether the scenario of Thai judicial politics – with courts increasing involved in the politics of presidential elections – is one that they would like to follow.

 Suggested citation: Stefanus Hendrianto, Can Indonesia Learn From the Thai Constitutional Court, Int’l J. Const. L. Blog, Aug. 27, 2014, available at: www.iconnectblog.com/2014/08/can-indonesia-learn-from-the-thai-constitutional-court/

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[i] See Indonesian Constitutional Court decision No. 1/PHPU.Pres-XII/2014.

[ii] Part 2, Section 108 of the 2007 Constitution.

[iii] Part 1, Section 245 of the 2007 Constitution.

[iv] Article 24C, Section 1 of the 1945 Constitution.

[v] Article 3 of the Constitutional Court Regulation No. 4 of 2014, on the Procedural Law of Presidential Election Disputes.

[vi] The1997 Constitution did not grant any explicit authority either.

[vii] See Court Ruling on Feb 2 Poll Attracts Criticism, The Nation, available at http://www.nationmultimedia.com/politics/Court-ruling-on-Feb-2-poll-attracts-criticism-30229808.html.

[viii] See Constitutional Court invalidates the April election and orders New Election, The Nation, available at http://nationmultimedia.com/2006/05/08/headlines/headlines_30003512.php.

[ix] See Dominic Nardi, Thai institutions: Constitutional Court, available at

http://asiapacific.anu.edu.au/newmandala/2010/08/10/thai-institutions-constitutional-court.

[x] Section 68 of the 2007 Constitution. See Andrew Harding, Rawin Leelapatana, and Khemthong Tonsakulrungruang, Thailand Update: The Search for Perfect Paper Continues, Int’l J. Const. L. Blog, Dec. 2, 2013, available at: http://www.iconnectblog.com/2013/12/thailand-update-the-search-for-perfect-paper-continues.

[xi] See Tom Ginsburg, Constitutional Afterlife: The Continuing Impact of Thailand’s Post-Political Constitution, International Journal of Constitutional Law, January 2009.

[xii] See Stefanus Hendrianto, The First Ten Years of the Indonesian Constitutional Court: The Unexpected Insurance Role, Int’l J. Const. L. Blog, August 25, 2013, available at http://www.iconnectblog.com/2013/08/the-first-ten-years-of-theindonesian-constitutional-court-the-unexpected-insurance-role.