On 16 October 2023, the Constitutional Court granted the judicial review petition on Article 169 letter q of Law No. 7 of 2017 concerning Elections through Constitutional Court Decision No. 90/PUU-XXI/2023. Despite the final and binding nature of the Constitutional Court's decision, which opens the opportunity for presidential (Capres) and vice-presidential (Cawapres) candidates under the age of 40 who have held or are holding regional leadership positions, this decision has sparked controversy among various groups. Among them, civil society coalitions have expressed concern that this decision may undermine the electoral process. The decision is feared to have implications on a democratic system in Indonesia. Find out more our insights about this topic in our Legal Brief publication.

1. Legal Brief
The Constitutional Court Decision
No. 90/PUU-XXI/2023 and Democratic Anomalies

2. Background
A H R P L e g a l B r i e f
On 16 October 2023, the Constitutional Court of the Republic of Indonesia ("Constitutional Court") issued a controversial decision by ruling on the Judicial
Review of Article 169 of Law Number 7 of 2017 concerning General Elections ("Election Law"), registered under Decision Number 90/PUU-XXI/2023 dated 15
August 2023 ("Constitutional Court Decision No. 90/2023"). This decision fundamentally altered the candidacy requirements for a presidential or vice-
presidential candidate, changing the previous criterion of being at least 40 (forty) years old to being at least 40 (forty) years old or having previously/currently held
a position elected through general elections, including regional head elections.
Utami Argawati/L.A.P, Age Limit for Presidential and Vice-Presidential Candidates 40 Years Old or Occupying Elected Position from Elections / Regional Elections, 16 October 2023, www.MKRI.id
Case:
Petition Objecting to the
Minimum Age Limit
Changes for Presidential
and Vice-Presidential
Candidates.
Constitutional Court Decision No. 29/PUU-
XXI/2023
Constitutional Court Decision No. 51/PUU-
XXI/2023
Constitutional Court Decision No. 55/PUU-
XXI/2023
Constitutional Court Decision No. 91/PUU-
XXI/2023
Constitutional Court Decision No. 37/PUU-
VIII/2010
Constitutional Court Decision No. 90/PUU-XXI/2023
Rejected in its entirety Partially Granted
Petition Objecting to the
Determination of
Minimum and Maximum
Age Limits.
Constitutional Court Decision No. 51/PUU-
VI/2008
Constitutional Court Decision No. 52/PUU-
VI/2008
Constitutional Court Decision No. 38/PUU-
VIII/2010
Constitutional Court Decision No. 39/PUU-
VIIII/2010
Constitutional Court Decision No. 59/PUU-
VI/2008
Constitutional Court Decision No. 15/PUU-
V/2007
Open Legal Policy
Constitutional Court
Unlike the other decisions (opened legal policy),
this court ruling partially granted the petition.

3. Verdict:
The petitioner's request is partially granted. Article 169 letter q of Law Number 7 of 2017 concerning General Elections, which stipulates being at
least 40 (forty) years old, is declared to be in conflict with the Constitution of the Republic of Indonesia of 1945 and lacks legally binding force unless
interpreted as being at least 40 (forty) years old or having previously/currently held a position elected through general elections, including regional
head elections.
Pg. 58 Constitutional Court Decision. No.90/2023
Constitutional Court Decision No. 90/2023 (Verdict and Dissenting
Opinion)
A H R P L e g a l B r i e f
Dissenting Opinion Constitutional Court’s Judge
1. Wahiduddin Adams 2. Saldi Isra 3. Arief Hidayat 4. Suharyoto
i. It is not within the judicial
competency of Constitutional
Court to adjudicate this matter
as it falls within the purview of
open legal policy.
ii. It will be the sole requirement
for the nomination of
presidential and vice-
presidential candidates, thereby
setting aside any other
conditions.
iii. Intentional privileges, conflicting
with Article 28D paragraph (1) of
the 1945 Constitution.
i. Constitutional Court does not
have the authority to adjudicate
as it falls under an open legal
policy;
ii. The decision is in conflict with
similar prior rulings.
i. Constitutional Court does not
have the authority to
adjudicate as it falls under an
open legal policy; and
ii. The decision is inconclusive as
it was not rendered by a
minimum of 5 (five)
Constitutional Judges based on
the same legal grounds;
iii. Constitutional Court Petition No.
90/2023 is in contradiction with
Article 75 paragraph (1) letter b,
paragraph (3) letter c of
Regulation No. 2/2021, which
fundamentally states that a
withdrawn petition cannot be
resubmitted.
i. The petitioner is not a legal
subject with a direct interest in
nominating themselves as a
president and vice president;
ii. The petitioner's petition is not
for his own interest.
Pg. 87 - 94
Constitutional Court Decision No. 90/2023
Pg. 94 s.d.106 Constitutional Court Decision
No. 90/2023
Pg. 107-108, 114, 117
Constitutional Court Decision No. 90/2023
Pg.118 and120 Constitutional Court Decision
No. 90/2023

4. Anomalies in the Decision of Constitutional Court Decision
No. 90/2023 According to 3 (three) Constitutional Judges
1. Wahiduddin Adams 2. Saldi Isra 3. Arief Hidayat
The granting of Constitutional Court Decision
No. 90/2023 has the potential to be activated
as a deliberately created privilege.
Pg.93 Constitutional Court Decision No. 90/2023
i. There is an unusual event that deviates
significantly from rational reasoning,
namely, the court changing its stance and
position in a fleeting manner. Previously,
in a decision explicitly, clearly, and firmly
stated in a similar case with Constitutional
Court Decision No. 29-51-55/PUU-
XXI/2023, the court declared that the
matter of age in the normal provision of
Article 169 letter q of Law 7/2017 is within
the legislative authority to amend.
ii. The Constitutional Court has never
changed its stand within a matter of days.
iii. In a similar case, only Constitutional Court
Decision No. 90/2023 underwent a
plenary session to hear statements from
the President, DPR, as well as Relevant
Parties, the Applicant's Expert, and the
Relevant Expert.
iv. There was a sudden change in the
decision between the first draft decision
without the presence of the Chief Justice
and the subsequent draft decision
attended by the Chief Justice.
v. There was a withdrawal of the petition in
Constitutional Court Decision No.
90/2023, but one day later, the withdrawal
was revoked.
vi. The final decision differs from the relief
sought in the petition for Constitutional
Court Decision No. 90/2023.
vii. The decision is inconclusive due to
differing opinions among the 5 (five)
Judges who partially granted the
petitioner's request in Constitutional Court
Decision No. 90/2023.
viii. It appears that there are specific political
interests involved.
Pg.95, 96, 98, 99-103, and 106
Constitutional Court Decision No. 90/2023
i. The Trial Process appears to be rushed.
ii. The discussion in the Judges' Deliberation
Meeting was attended by the Chief
Justice, who had previously not attended
in Constitutional Court Decision No. 29-
51-55/PUU-XXI/2023 citing a conflict of
interest.
iii. Only Constitutional Court Decision No.
90/2023 was adjudicated with a partial
granting.
iv. Constitutional Court Decision No. 90/2023
was withdrawn on Friday, 20 September
2023, but the withdrawal was revoked on
the holiday, Saturday, 30 September
2023.
v. The decision is inconclusive as it was not
rendered by a minimum of 5 (five)
Constitutional Judges based on the same
legal grounds.
vi. Constitutional Court Decision No. 90-
91/PUU-XXI/2023 was withdrawn but still
proceeded.
Pg.111-112, 113, 114-118
Constitutional Court. Decision No. 90/2023
A H R P L e g a l B r i e f

5. Dian Agung Wicaksono stated in Constitutional Court Decision No. 90/PUU-XXI/2023 that five constitutional
justices granted the applicant's petition while four constitutional justices rejected the applicant's petition.
However, among these five constitutional justices, there were two justices who had differing reasons
(concurring opinions), choosing to interpret 'positions elected through general elections including the election
of regional heads' solely for provincial-level regional heads or governors. Hence, it can be argued that
Constitutional Court Decision No. 90/PUU-XXI/2023 is a plural decision.
The principle of the Marks rule applies when there is a plurality decision, referencing Marks v. United States, 430 U.S. 188 (1977), which serves as
a guide in the practice of U.S. judiciary known as the "narrowest ground rule“. This rule explains that when judges fail to reach a consensus on a
single majority rationale for reaching a decision, the position of the court can be viewed as the position taken by those judges concurring in the
judgment, but within the narrowest scope of agreement.
Marks Rule Principle
Constitutional Court Decision No. 90/PUU-XXI/2023
as a Plurality Decision
The Consequences of Interpreting Constitutional Court Decision No.
90/PUU-XXI/2023 as a Plurality Decision
Plurality Decision and Marks Rule Principle
Richard M Re, 2019; Ryan C Williams, 2017
If the interpretation as a plurality decision is used to understand the positions of the constitutional justices who experienced division in the
majority vote when deciding Constitutional Court Decision No. 90/PUU-XXI/2023, it could have serious implications for the constellation of
presidential and vice-presidential nominations. (i) Heads of regions under 40 years old, besides governors, may not be proposed as presidential
or vice-presidential candidates; (ii) The Election Commission (KPU) has the opportunity to invalidate the registration of presidential and vice-
presidential candidates that do not comply with the interpretation of the plurality decision during the verification stage of prospective candidate
pairs.
Revisiting Constitutional Court Decision No. 90/PUU-XXI/2023 as a
Plurality Decision
Dian Agung Wicaksono, Constitutional Court Ruling not for the Crown Prince, Kompas, 6 November 2023
Dian Agung Wicaksono, Constitutional Court Ruling not for the Crown Prince, Kompas, 6 November 2023
A H R P L e g a l B r i e f

6. The Establishment of MKMK
A H R P L e g a l B r i e f
The appointment of three individuals as members of MKMK has raised
suspicions among the public due to perceived emotional proximity each
has with the Constitutional Court. In an effort to quell these suspicions,
Jimly assured that he would uphold the independence of MKMK to
restore public trust in the Constitutional Court.
The MKMK is established by the Court to safeguard and uphold
the honor, dignity, and Code of Ethics and Conduct of
Constitutional Judges.
The Constitutional Court established the minimum age for presidential and vice-presidential candidates at 40 years old. However, this provision
was supplemented with a note that individuals under the age of 40 could still become presidential or vice-presidential candidates if they have
experience holding public office by being elected through elections. Consequently, Gibran was able to enter the vice-presidential candidate arena
at the age of 36, considering his experience as the elected mayor of Solo through elections. This decision triggered suspicions of a violation of the
ethical code for constitutional judges, particularly due to Anwar Usman being Gibran's uncle. In response to this matter, the Constitutional Court
simultaneously established and officially inaugurated the Ethics Council of the Constitutional Court (MKMK).
Background of the Establishment of MKMK
(Article 2 Constitutional Court Regulation No. 1/2023)
Authority Member’s Composition
• Upholding the dignity, integrity, and honor of the
Constitutional Court.
• Investigating and ruling on alleged violations of the Code of
Ethics and Conduct of Constitutional Judges.
• Alleged breaches of the Code of Ethics and Conduct of
Constitutional Judges shall be examined and resolved within
a maximum period of 30 (thirty) working days from the date
the report is recorded in the e-BRLTP system.
• If the examination within the 30 (thirty) day period is not
concluded, an extension of up to an additional 15 (fifteen)
working days may be granted.
Authority and Composition of Members
Based on Decision Letter No. 10 of 2023 regarding the
Establishment and Membership Composition of the MKMK for the
year 2023 dated 23 October 2023, MKMK comprises of three
individuals:
a. Wahiduddin Adams representing constitutional judges;
b. Jimly Asshiddiqie representing public figures;
c. Bintan R. Saragih representing academics with legal background
MKMK will operate for one month starting from 24 October 2023 –
24 November 2023.
Article 3 Constitutional Court Regulation No. 1/2023
Society’s Suspicions
Utami Argawati, Age Limit for Presidential and Vice-Presidential Candidates 40 Years Old or Occupying Elected Position from Elections /
Regional Elections, 16 October 2023, www.MKRI.id

7. Alleged Conflicts of Interest by Anwar Usman
MKMK Decision No. 2/MKMK/L/11/2023
1. The Reported Judge has been found guilty of committing serious
violations against the Code of Ethics and Behavior of Constitutional
Judges as outlined in the Sapta Karsa Hutama, the Principle of
Impartiality, the Principle of Integrity, the Principle of Competence
and Equality, the Principle of Independence, and the Principle of
Propriety and Decorum.
2. Imposition of the sanction of dismissal from the position of Chief
Justice of the Constitutional Court upon the Reported Judge.
3. Directing the Vice Chief Justice of the Constitutional Court to, within
2x24 hours from the completion of this Decision, lead the process for
the appointment of new leadership in accordance with the prevailing
laws and regulations.
4. The Reported Judge is not entitled to nominate themselves or be
nominated as a leader of the Constitutional Court until the Reported
Judge's term as a Constitutional Judge expires.
5. The Reported Judge is not permitted to be involved or engage in the
examination and decision-making process in cases involving
disputes related to the results of the Presidential and Vice
Presidential Elections, the Elections of Members of the House of
Representatives, Regional Representative Council, and Regional
People's Representative Council, as well as the Elections of
Governors, Regents, and Mayors that have the potential for conflicts
of interest.
Verdict of MKMK Decision No. 2/2023
The MKMK finds that the Judge in question did not work in an
impartial manner and also did not appear to work impartially in
handling Constitutional Court Decision No. 90/PUU-XXI/2023.
This determination is based on several considerations. Including,
the Judge did not recuse themselves from handling
Constitutional Court Decision No. 90/PUU-XXI/2023, despite the
clear existence of a conflict of interest due to the direct
involvement of the Judge's family interest, namely Gibran
Rakabuming Raka, in Constitutional Court Decision No. 90/PUU-
XXI/2023.
The Constitutional Court (MKMK) has received 21 reports of alleged
violations of the Code of Ethics and Conduct of Constitutional Judges
regarding Constitutional Court Decision No. 90/PUU-XXI/2023. Upon
receiving these reports, MKMK conducted a hearing for examination.
Eventually, a decision was rendered. MKMK categorized the 21 reports
into four classifications of decisions, namely Constitutional Court
Decision Number 02/MKMK/L/11/2023 concerning alleged violations of
the Code of Ethics and Conduct of Constitutional Judges against the
Respondent, Chief Justice of MKMK Anwar Usman.
It is important for the MKMK to emphasize that as a constitutional
judge, particularly as the Chief Justice of the Constitutional Court,
one is bound to uphold procedural law as required. The handling
process of Constitutional Court Decision No. 90/PUU-XXI/2023
indicates that the Constitutional Court was not consistent with the
applicable rules, which represents a stance reflecting lack of
diligence in the execution of a judge's professional duties.
Pg.367 MKMK Decision. No.2/2023
Pg.370 MKMK Decision. No.2/2023
Judge Consideration in MKMK Decision No.
2/MKMK/L/11/2023:
Sri Pujianti, MKMK dismisses Anwar Usman from the position of Chief Justice of
the Constitutional Court, 7 November 2023, www.MKRI.id
On the issue of the Respondent Judge not resigning from the
examination process and decision making process No. 90/PUU-
XXI/2023, the Honourable Panel without any doubt that the
Reported Judge is proven to have violated Sapta Karsa Hutama,
the Principle of Impartiality, point of Application 5 letter b, and the
Principle of Integrity, point of Application 2. Integrity, point of
Application 2.
Pg.364 MKMK Decision. No.2/2023
A H R P L e g a l B r i e f

8. Contrary to Article 27 paragraph (1) and Article 28D paragraph (3) of the Constitution of the
Republic of Indonesia (UUD NRI 1945),
Constitutional Court Decision No. 90/PUU-XXI/2023 is discriminatory and confers privileges upon
specific parties, thus contradicting the principle of equality before the law and government.
Strong Abusive Judicial Review
Legal expert Susi Dwi Harijanti asserts that Constitutional Court Decision No. 90/PUU-XXI/2023
constitutes a strongly abusive judicial review due to its failure to adhere to procedural law, weak
assessment of legal standing, lack of legal argumentation, and conflicts of interest. Additionally, it
deviates from previous Constitutional Court decisions. Moreover, the differing reasons (concurring
opinion) are also debatable as to whether they constitute dissenting opinions. In other words, the
overall legal perspectives of the constitutional justices are deemed irrational and non-deliberative.
Partiality within the Judiciary
The principle of the Constitutional Court's bias becomes increasingly evident with the
implementation of this decision shortly before the election registration, precisely three days prior to
the registration of presidential and vice-presidential candidates. Consequently, it favors specific
parties and introduces changes in the conduct of the election.
There are several principles of the rule of law, including (i) the supremacy of law, (ii) equality under the law, (iii) limitation of power, and (iv) impartial and
independent judiciary. Furthermore, according to Tom Ginsburg (2018), the stages of democratic reversal in many countries occur due to the hijacking of
constitutional courts.
Reference: Jimly Asshiddiqie, Konstitusi dan Konstitusionalisme di Indonesia, (Jakarta: Sinar Grafika, 2017) and Tom
Ginsburg, Democratic Backsliding and the Rule of Law, 44 Ohio Northern University Law Review, (2018)
The Rule of Law and Democracy Principle
Constitutional Court Decision No. 90/PUU-XXI/2023 Undermines the Principles of Rule of Law and Democracy
The Principles of Rule of Law and Democracy Compromised
Reference:https://www.hukumonline.com/berita/a/prof-susi-dwi-harijanti--putusan-mk-usia-
capres-cawapres-strong-abusive-judicial-review-lt653f0cc82ae10/
A H R P L e g a l B r i e f

9. Indopol Survey indicates that following Constitutional Court Decision No. 90/PUU-XX/2023 and the ethics hearing by the
MKMK regarding alleged ethical violations by the Chief Justice of the Constitutional Court concerning the requirements
for the registration of presidential and vice-presidential candidates, it exacerbates the poor state of law enforcement and
legal administration in Indonesia. Publicly available data shows that 51.45 percent disagree with the Constitutional
Court's decision, while only 19.92 percent express agreement. Additionally, according to the Populi Center survey,
public trust in the Constitutional Court has decreased by 10% following Constitutional Court Decision No. 90/PUU-
XX/2023.
According to the Political Representation, Election, and Regional Autonomy Research Cluster (PPPOD) at the Political
Research Center of BRIN, the Constitutional Court decision further demonstrates a tendency to implement political
dynasties within the framework of procedural democracy. As a result, through this Constitutional Court decision, the
integrity of the electoral process is being questioned. Elections, which should be conducted honestly and fairly, are
turning into an unhealthy contest where all means are seemingly justified to secure victory.
Honorable Constitutional Judge Arief Hidayat mentioned the presence of a crisis within the Court. Furthermore, Arief
Hidayat has expressed thoughts on reshuffling nine constitutional judges to restore the dignity of the Court. Arief Hidayat
had previously received a warning from the Ethics Council for another case some time ago. Additionally, according to the
Civil Society Coalition for Monitoring Democratic Elections, Constitutional Court Decision No. 90/PUU-XX/2023
represents a clear form of collusion, corruption, and nepotism, significantly damaging the democratic and legal order in
Indonesia.
The Decline of Democracy Following Constitutional Court Decision No.
90/PUU-XXI/2023 and MKMK Decision No.: 5/MKMK/L/11/2023
Reference: Indopol, Public sentiment toward Decision 90 and the performance of the Jokowi-Ma'ruf administration leading up to the 2024 Election..
Reference: https://nasional.kompas.com/read/2023/10/27/06220021/brin-anggap-putusan-mk-bagian-dari-upaya-melegalkan-dinasti-politik?page=all
Reference: https://www.cnnindonesia.com/nasional/20231025140919-12-1015773/hakim-arief-hidayat-pakai-baju-hitam-berkabung-atas-prahara-di-mk..
A H R P L e g a l B r i e f

10. We will continue to follow the developments on this topic and provide additional information as it becomes
available. If you have any questions on this topic, please contact:
This publication has been prepared by AHRP for educational and informational purposes only. The information contained in this publication is not
intended and should not be construed as legal advice. Due to the rapidly changing nature of law, AHRP makes no warranty or guarantee concerning
the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your
circumstances before deciding to take any action.
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