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Abusive Judicial Review and the Indonesian Presidential Age Limit Case

Year of Publication: 2025
Month of Publication: 8
Author(s): Ratu Durotun Nafisah and Yassar Aulia
Research Area(s): Asian Legal Studies, Indonesian Law
Journal Name: Australian Journal of Asian Law
Volume Number: 26
Issue Number: 2
Abstract:

This article investigates how judicial review in a new democracy can be abused to erode electoral democracy, with a focus on the presidential and vice-presidential age limits case in Indonesia. On 16 October 2023, the Indonesian Constitutional Court in the Almas case changed age limit requirements, making it possible for the president's son to successfully run for the vice-presidency in the 2024 elections. This decision arguably amounts to abusive judicial review, as described by Dixon and Landau. In this case, there are powerful indicators that the decision was designed to attack free and fair elections. First, the way the court reasoned and used liberal democratic norms was dubious and unreasonable. Second, there were significant procedural irregularities behind the decision. Finally, there were indications that the court had been captured, or at least cowed, prior to the decision. The existence of these factors shifted the function of judicial review to become an instrument of power consolidation. However, observers were left confused about the legitimacy of the decision because of the respect usually accorded to judicial review as a legal-constitutional tool that is assumed to be relatively separate from politics. This case is worrying for the future of the Constitutional Court and democracy in Indonesia, but our investigation into abusive review may serve as a cautionary tale for other fragile transitioning democracies.