Jake Scobey at Foreign Policy interviewed me on May 7, 2014, to discuss the recent constitutional crisis in Thailand. It’s a useful summary of the Thai Constitutional Court’s role in recent Thai politics. For the record, I’m a bit more sanguine about the Court and even noted in my article that pre-2006 the Court had a reputation for leaning towards Thaksin. However, I believe the article is correct in its concern that the Thai constitutional system has too many checks and not enough balance between the branches of government.
Category Archives: elections
Indonesia’s Constitutional Court has done it again. A few weeks ago, the Mahkamah Konstitusi announced that it would require national legislative and presidential elections to be held simultaneously. The campaigning for the 2014 elections has already begun, so the decision will not go into effect until 2019 (Indonesia’s elections take place every 5 years. However, critics, including elections lawyer Refly Harun, allege that the decision “could” have gone into effect for 2014 if the MK had released it earlier. According to The Jakarta Globe, the MK actually reached its decision last May.
At first glance, it might seem relatively innocuous – and perhaps even efficient – to hold elections concurrently. However, Indonesian presidential elections depend heavily on coalition formation because only parties that had won 20% of the DPR seats or 25% of the popular vote can nominate candidates (the MK allowed this requirement to stand). Most Indonesian political parties do not meet this requirement; after the 2009 elections, only the Democrats, GOLKAR, and PDI-P would qualify. Thus, many of the smaller parties would need to form coalitions to gain a seat in the administration, often by putting forward the vice-presidential candidates.
So the biggest remaining question seems to be how will the process of coalition formation change with the simultaneity requirement if they cannot form coalitions after having seen the DPR results? This might lead to parties forming coalitions based on previous election results and polling. Or, it could lead to parties taking greater account of ideology and policy platforms to form stronger policy-based identities before elections.
Talking with several experts and activists these past few weeks, it’s clear that many are disappointed in the corruption scandal involving former Constitutional Court (Mahkamah Konstitusi) chief justice Akil Mochtar. Many are also disappointed that the court has not taken more aggressive measures to establish an independent ethics committee.
However, on Thursday (coincidentally, two days after I’d visited the MK library), public expressions of discontent with the MK reached a new phase as supporters of a party in a Maluku local election dispute stormed the MK building. According to The Jakarta Post, several shouted “the MK is a thief” because their favored candidate lost.
Increasingly, I hear people raising questions about the appropriate role for the MK in deciding local elections disputes. Most people I’ve met still think the MK will provide the fairest adjudication of cases, but it’s far from clear if retaining jurisdiction over the cases is good for the MK. Many seem to think that whichever institution is tasked with deciding these disputes will suffer, either from corruption, an overflowing docket, or popular anger. Unfortunately, there are no easy solutions and there seems to be little appetite for the large-scale institutional reform that would be necessary to create a separate court for local elections disputes.
Yet another conveniently timed report about the Indonesian Constitutional Court. Veri Junadi, associated with the NGO Perludem, has written a book about the MK’s handling of elections disputes. The title of the report is The MK is not the Supreme Calculator, partly a critique of the fact that the MK often finds itself involved in assessing vote counts in elections cases. The book is only in Indonesian and unfortunately has not been translated, but worth checking out for students of the court.
The Centre for Democratic Institutions commissioned Prof. Simon Butt, probably the foremost Western expert on Indonesia’s Constitutional Court (Mahkamah Konstitusi) jurisprudence, to assess the MK’s handling of local elections cases in this report. In particular, Butt worries that the court had not adequately defined its standard for overturning an election (a “structured, systematic, and massive” breach) and does not rigorously evaluate evidence.
This report was published in March, so long before Akil-gate, but it still provides invaluable to the MK’s elections cases and some of the problems that plagued the system even before this October. One has to wonder now how much of the MK’s fuzziness on these matters was deliberate.
On May 5, 2013, Malaysia’s ruling coalition, the Barisan Nasional, won a resounding victory in Malaysia’s 13th general election. Few were surprised that it captured a majority of Parliament (133 seats vs. 89 for the opposition Pakatan Rakyat). What was surprising was how disproportionate the BN’s seat share was compared to its popular vote share (60% vs. 47.38%). The opposition alleges not just that gerrymandering has created safe districts for the BN, but also that the BN engaged in vote-rigging and foul play.
Now, the PR has filed a lawsuit against the Elections Commission before the Malaysian High Court. Malaysian judges are not known for their willingness to confront the political elite. Malaysian legal scholar Ratna Rueban Balasubramaniam argues judges ought to view the elections case as an opportunity to enforce the rule of law, not as a improper infringement in political activity.
While the judiciary’s past actions do not hint at judicial activism, this will certainly be the closely watched case in Malaysia for years – at least since the Anwar sodomy trial(s).