Courts and authoritarian populism in Asia: Reflections from Indonesia and the Philippines

• Published date: 01 July 2024
• Author: Björn Dressel,Cristina Regina Bonoan
• Date: 01 July 2024
• DOI: http://doi.org/10.1111/lapo.12240

ORIGINAL ARTICLE

Courts and authoritarian populism in Asia:

Reflections from Indonesia and the Philippines

Björn Dressel

1

| Cristina Regina Bonoan

2

1

Crawford School of Public Policy, Australian

National University, Canberra, Australian

Capital Territory, Australia

2

College of Law, University of the Philippines,

Quezon City, Philippines

Correspondence

Björn Dressel, Crawford School of Public

Policy, Australian National University,

J.G. Crawford Building No. 132, 132 Lennox

Crossing, Canberra, ACT 2601, Australia.

Email: bjoern.dressel@anu.edu.au

Funding information

Discovery Project; Australian Research

Council; Judicial Loyalties and Resistance in

Southeast Asia, Grant/Award Number: DP

230102553

Abstract

Authoritarian populism has been making a comeback

in Asia, as illustrated in Southeast Asia’s most impor-

tant presidential regimes: the Philippines and

Indonesia. In the Philippines, President Duterte (2016–

2022) has shown unprecedented illiberal transgressions.

Meanwhile in Indonesia, Joko Widodo’s increasingly

assertive presidency (2014–) has renewed concerns

about “democratic backsliding”in what to date has

been one of the region’s most vibrant democracies. In

both instances, courts have been largely muted in

responding to these developments, raising concerns

about their ability to counter democratic backsliding.

A distinct political agenda targeting the courts through

partisan control over parliament to pursue illiberal

goals; undue presidential influence over judicial

appointments reinforced by informal loyalty dynamics;

and traditionally weak public support for the courts

versus high executive popularity are critical drivers

behind this trend. Nevertheless, the inherent fragility of

competitive-clientelist regimes common to the region

also offers courts the opportunity to recover and resist

such efforts, especially in electoral democracies.

1|INTRODUCTION

The global rise of authoritarian populism has sparked renewed attention to the role that courts

play in either countering or facilitating this phenomenon. As institutions tasked with

safeguarding fundamental rights and upholding the rule of law, courts naturally become targets

for authoritarian-populist actors driven by both ideological and pragmatic considerations

(Friedman, 2019; Prendergast, 2019).

DOI: 10.1111/lapo.12240

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Law & Policy. 2024;46:277–297. wileyonlinelibrary.com/journal/lapo 277

Ideologically, independent courts present a direct challenge to populist actors who advocate

for a conception of democracy rooted in unconstrained majority rule (Steuer, 2022). On a more

pragmatic level, gaining control over the courts facilitates the advancement of the populist

agenda by diminishing the checks and balances on the executive. This can manifest when courts

remain silent on constitutional changes or unconstitutional acts, lend legitimacy to populist pol-

icies, or become tools in the hands of the government to prosecute and curtail opposition

through criminal or electoral cases (Kovalˇ

cík, 2022).

It is worth noting that populist leaders with illiberal tendencies often come to power through

legal means. Once in office, they proceed to erode democratic norms and institutions, including

the judiciary, without necessarily abolishing them. These efforts by authoritarian-populist

leaders to influence or manipulate the judiciary involve tactics such as court packing, bribery,

informal communication, or intimidation (Kosaˇ

r&

ˇ

Sipulov

a, 2023; Llanos et al., 2014). Such

tactics have been increasingly documented in various regions, including Eastern Europe

(Castillo-Ortiz, 2019; Sadurski, 2019), Latin America (Aguilar, 2023; Castagnola, 2020), sub-

Saharan Africa (Roux, 2022), and even the United States (Peabody, 2018).

In comparison, the scholarly literature on these dynamics has been relatively limited in Asia,

particularly in Southeast Asia (although see tentative explorations, Curato & Fossati, 2020;

Gatmaytan, 2018). This is somewhat surprising as the region has witnessed a gradual resur-

gence of the judiciary’s role in politics, often intersecting with the emergence of authoritarian

and populist regimes over the last decade (Mietzner, 2021).

Part of the explanation for the gap in scholarship may lie in the complex and diverse nature

of Southeast Asia, characterized by a wide range of political systems, cultural influences, and

colonial legacies that defy easy generalizations. However, another key factor contributing to

this gap is the disconnect between academic disciplines. For instance, while scholars of politics

have drawn attention to the rise of populist leaders and movements in the region

(Jayasuriya, 2020; Kenny, 2018; Mizuno & Phongpaichit, 2009), these scholars have hardly

looked at how authoritarian-populist leaders have engaged with the court system. Conversely,

while scholars have explored the increasingly prominent role of courts in politics within the

region, including their functions in authoritarian and semi-authoritarian states and their

impacts on the rule of law and democracy (Crouch, 2017; Ginsburg, 2008; Yap, 2017), they

have often done so without directly addressing the populist logic that has influenced these

interactions.

It is against this background that we turn our attention to Southeast Asia’s two largest and

most vibrant democracies—Indonesia and the Philippines. Widely considered relatively robust

democratic states within the region, both have emerged as new sites of democratic backsliding

as populist presidents have directed attacks and interference in the judiciary. This situation

underscores the unique tension unfolding in the region, wherein executive aggrandizement cla-

shes with judicial independence. In Indonesia and the Philippines, however, this dynamic is

influenced by the competitive-clientelist nature of the political systems, offering new insights

into the contemporary debate on the role of courts in democratic backsliding.

In the Philippines, Asia’s oldest democracy, populist President Duterte (2016–2022) engaged

in a war on drugs in which extrajudicial killings claimed several thousand lives. He also weap-

onized the legal system to attack political foes, the media, and public officials. In the face of

these threats, the Supreme Court has sided with the President in several high-profile cases—a

trend that consolidated further after the legally questionable ouster of the Chief Justice

(CJ) and several new appointments to the Supreme Court bench.

Likewise, the second term of populist President Joko Widodo in Indonesia (2014–2024) has

been overshadowed by a growing illiberal crackdown on critics, media, and oversight agencies,

such as the well-respected Anti-Corruption Commission (KPK). Several bribery scandals, the

legally questionable recall of a constitutional court judge, and a new Constitutional Court Law

changing the tenure of judges have also prompted growing concerns over the capture of

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