The 2023 Amendment to Indonesia’s Presidential and Vice-Presidential Nomination Age: Implications for Judicial Review’s Legitimacy and Efficiency

Written by Felicia Aldiyani

Edited by Luca Viscapi

Felicia Aldiyani is an undergraduate student at Sciences Po Paris, Le Havre Campus, in the Social Sciences track. She plans to major in Politics and Government with a minor in International Relations. Her academic interests include law, human rights, and public policy.

In a highly controversial ruling during the presidential and vice-presidential election season, the Indonesian Constitutional Court in October 2023 amended the minimum age requirement for presidential and vice-presidential candidates. Finalized within just two months of its initial proposal, the decision led to an intense legal debate, which raised critical questions about judicial independence, constitutional interpretation, and the broader implications for the legitimacy and efficiency of the Indonesian judicial review.

As the third-largest democracy in the world, Indonesia operates under a strict separation of powers, ensuring that the executive, legislative, and judicial branches function as independent bodies [1]. The judicial branch was designed as the guardian of the nation and the state's constitutional integrity and is vested with broad powers of judicial review. The rulings of the Constitutional Court, as the highest judicial organ, are legally considered 'final and binding,' and are therefore authoritative and irrevocable [2]. Additionally, Article 24C(1) of the Indonesian Constitution (UUD 1945) states that the Constitutional Court adjudicates at both the first and final level, with the cases that come before it not being subject to any filter mechanism [3]. The same principle is reaffirmed in Article 10(1) of Law No. 24 of 2003 on the Indonesian Constitutional Court, which states that “the Constitutional Court holds jurisdiction of first and final instance whose decisions shall be final in the following matters: (a) the review of laws against the 1945 Constitution of the State of the Republic of Indonesia; (b) decide upon disputes related to the authorities of state institutions whose authorities are granted under the 1945 Constitution of the State of the Republic of Indonesia (c) decide upon the dissolution of political parties; and (d) decide upon disputes concerning the results of general elections” [4]. Given the significance of legal decisions and the hierarchical authority of the Constitutional Court, legitimacy and efficiency must always be prioritized in the judicial review decision-making process. Given the breadth of the power of judicial review held by the Constitutional Court, its rulings on matters related to the functioning of political institutions have the power to greatly impact the legitimacy and efficiency of Indonesia’s constitution. This article will examine the implications of the Constitutional Court’s decisions on the 2023 amendment to Indonesia’s presidential and vice-presidential nomination age for Indonesia’s constitutional legitimacy and efficiency.

In August 2023, the Indonesian Solidarity Party (Partai Solidaritas Indonesia/PSI) requested the Court to rule on the constitutionality of Article 169Q of Law Number 7/2017 on General Elections (Election Law), which states that “a candidate for President and Vice President must be at least 40 (forty) years old” [5]. The PSI argued that this provision is contrary to Article 28D(3) of the Indonesian Constitution, which affirms that “every citizen shall have the right to obtain equal opportunities in government.” The petitioners contended that the age requirement is inherently discriminatory and violates the principle of equality. They argued that forcing Indonesian citizens to choose only from candidates who meet this restrictive requirement results in injustice, both for voters and potential candidates [6]. Therefore, the petitioners requested the Constitutional Court to accept and fully grant their petition, declaring Article 169Q of the Election Law contrary to the Constitution and lacking legal force unless interpreted as mandating only a "minimum age of 35 (thirty-five) years old” [7].

On October 16, 2023, the Constitutional Court partially granted the petitioner’s request, ruling the verdict that Article 169Q of Law No. 7 of 2017 on General Elections was not legally binding unless interpreted as "at least 40 years of age or having held/elected to a public office through a general election, including regional head elections" [8]. In addition to this, one of the justices, Justice Guntur stated, “Meanwhile, individual under 40 years of age can be nominated as a presidential and/or vice-presidential candidate as long as they have past or current experience as an official elected as a member of the DPR (House of Representatives), DPD (Regional Representatives Council), DPRD (Regional Legislative Council), governor, regent, or mayor, but are not appointed officials such as interim or acting officials” [9].

The independence of the Constitutional Court, and by extension its legitimacy, were seriously undermined by the ruling, as the Chief Justice of the Court at the time, Anwar Usman, was the brother-in-law of former President Joko Widodo [10]. In addition, Widodo’s son, Gibran Rakabuming Raka—who was only 36 at the time of election registration—was poised to become the vice-presidential running mate of Prabowo Subianto. The Court’s decision effectively paved the way for Raka’s candidacy, despite him not meeting the original minimum age requirement of 40 [11]. The close familial connection between the Chief Justice, the former President, and the vice-presidential candidate intensified widespread perceptions of bias and political favoritism, casting doubt on the Court’s impartiality, independence, and objectivity. These concerns furthered the erosion of public trust in the Court and were further validated when the Constitutional Court Ethics Council found Chief Justice Usman guilty of ethical violations for failing to recuse himself from the case [12]. As a result, he was removed from his position as Chief Justice [13]. However, the damage to the Court’s independence in the eyes of the public was already done, damaging the legitimacy of Indonesia’s powerful judicial review framework and, by extension, the entire constitutional order.

Aside from concerns about legitimacy, the amendment also raised questions about the efficiency of the judicial review process. The entire ruling and decision-making process was expedited at an unusually rapid pace and occurred just before the candidate registration period, leaving minimal time for electoral bodies and potential candidates to adjust to the new eligibility criteria [14]. The Constitutional Court issued its ruling on Case No. 90/PUU-XXI/2023 just days before the candidate registration deadline on October 16, 2023. Shortly after, the General Elections Commission (Komisi Pemilihan Umum/KPU) officially opened the registration period for presidential and vice-presidential candidates from October 19 to 25, 2023 [15]. Notably, on October 25, 2023, former Defense Minister Prabowo Subianto registered his candidacy with Gibran Rakabuming Raka, the 36-year-old former Mayor of Surakarta and son of President Joko Widodo, as his vice-presidential running mate [16]. The unusually swift timeline for such a high-stakes constitutional ruling called into question whether the Constitutional Court had enough time to thoroughly deliberate on the case and fully consider its broader legal consequences. Additionally, the ruling ultimately disrupted the stability of the electoral process. The Court, having therefore exercised its powers of judicial review in a manner contrary to the stated intention of the pouvoir constituant; to safeguard the stability of Indonesia’s political institutions and constitutional order—to obtain a result which had an immediate negative impact on the stability of that order no less—significantly damaged the country’s constitutional efficiency. 

The 2023 amendment to Indonesia’s presidential and vice-presidential nomination age has therefore had significant consequences for the legitimacy and efficiency of the judicial review process. The ruling was undermined by ethical concerns and legal ambiguities that were not fully considered. The involvement of Anwar Usman as Chief Justice severely weakened the credibility of the Constitutional Court, and his familial connection to a key beneficiary of the ruling—Gibran Rakabuming Raka—raised serious doubts about judicial impartiality. This close link between the judiciary and executive, without proper checks and balances from the legislative branch, has eroded public trust and greatly damaged the legitimacy of Indonesia’s constitutional order. The ruling also highlighted the stark inefficiency of the judicial review powers afforded to the Constitutional Court. The fragility of judicial independence in this case raises broader concerns about the erosion of constitutional integrity in favor of political interests. By allowing legal decisions to be influenced by power dynamics, the Court’s ruling sets a dangerous precedent, having demonstrated the weakness of a mechanism that was intended to uphold the Indonesian constitution. If such a trend continues, the judicial branch may struggle to fulfill its fundamental role—upholding the rule of law, ensuring justice, and maintaining the necessary checks and balances in Indonesia’s democracy.

Bibliography

[1] Mahfud MD, M. (2011, January 16–18). Separation of powers and independence of Constitutional Court in Indonesia. Paper presented at the 2nd Congress of the World Conference on Constitutional Justice, Rio de Janeiro, Brazil. Retrieved from https://www.venice.coe.int/WCCJ/Rio/Papers/INA_Mahfud_E.pdf

[2] Mahkamah Konstitusi Republik Indonesia. (2024, August 30). The Constitutional Court's Decisions Are Final and Binding. Retrieved from https://en.mkri.id/news/details/2024-08-30/The_Constitutional_Court%27s_Decisions_Are_Final_and_Binding​

[3] The 1945 Constitution of the Republic of Indonesia. (n.d.). Mahkamah Konstitusi Republik Indonesia. Retrieved from https://www.mkri.id/public/content/infoumum/regulation/pdf/uud45%20eng.pdf

[4] Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 [The 1945 Constitution of the Republic of Indonesia]. (1945). Retrieved from https://en.mkri.id/download/constitution/constitution_2_1625426527_5513ffab79ee0e68cd8 d.pdf

[5] Mahkamah Konstitusi Republik Indonesia. (n.d.). PSI minta batas usia minimal capres-cawapres 35 tahun. https://www.mkri.id/index.php?page=web.Berita&id=19076&menu=2

[6] Mahkamah Konstitusi Republik Indonesia. (n.d.). PSI minta batas usia minimal capres-cawapres 35 tahun. https://www.mkri.id/index.php?page=web.Berita&id=19076&menu=2

[7] Indonesian Constitutional Court. (2023, October 16). Presidential tickets at least 40 years old or elected officials. Retrieved from https://en.mkri.id/news/details/2023-10-16/Presidential_Tickets_at_Least_40_Years_Old_or ElectedOfficials

[8] Mahkamah Konstitusi Republik Indonesia. (2023, October 16). Presidential tickets at least 40 years old or elected officials. https://en.mkri.id/news/details/2023-10-16/Presidential_Tickets_at_Least_40_Years_Old_or_Elected_Officials 

[9] Indonesian Constitutional Court. (2023, October 16). Presidential tickets at least 40 years old or elected officials. Retrieved from https://en.mkri.id/news/details/2023-10-16/Presidential_Tickets_at_Least_40_Years_Old_or ElectedOfficials

[10] Asia Democracy Research Network. (n.d.). Quo Vadis Indonesian Democracy? A Closer Look at Dynastic Politics. Retrieved from http://www.adrnresearch.org/publications/list.php?at=view&idx=346​

[11] The Guardian. (2023, October 17). Joko Widodo’s son can run for Indonesian vice president after controversial court ruling. https://www.theguardian.com/australia-news/2023/oct/17/joko-widodos-son-can-run-for-indonesian-vice-president-after-controversial-court-ruling

[12] The Diplomat. (2023, November 8). Indonesian Chief Justice Dismissed for 'Serious' Ethics Violation. https://thediplomat.com/2023/11/indonesian-chief-justice-dismissed-for-serious-ethics-violation/

[13] Al Jazeera. (2023, November 8). Top judge demoted in Indonesia after ruling favouring president’s son. Retrieved from https://www.aljazeera.com/news/2023/11/8/top-judge-demoted-in-indonesia-after-ruling-fav ouring-presidents-son

[14] CNN Indonesia. (2023, October 17). KPU gerak cepat ubah aturan usai putusan MK syarat capres-cawapres. https://www.cnnindonesia.com/nasional/20231017070439-617-1012101/kpu-gerak-cepat-ubah-aturan-usai-putusan-mk-syarat-capres-cawapres

[15] Antara News. (2023, October 25). KPU receives Subianto-Raka files to run for 2024 presidential election. https://en.antaranews.com/news/297057/kpu-receives-subianto-raka-files-to-run-for-2024-presidential-election

[16] The Jakarta Post. (2023, October 25). Prabowo-Gibran ticket registers 2024 candidacy. Retrieved from https://www.thejakartapost.com/indonesia/2023/10/25/prabowo-gibran-ticket-register-2024- candidacy.html