Indonesia’s constitutional court: conservative activist or strategic operator?
Indonesia’s Constitutional Court
Conservative activist or strategic operator?
For three decades under Soeharto (1966–98) Indonesia was an authoritarian state. There were no effective checks, institutional or democratic, on the exercise of government power. Formally, the state was bound by the 1945 Constitution, but the judiciary lacked power to enforce it and was not independent (Lev 1978; Pompe 2005). The government, usually with military support, strictly controlled elections, directly appointed members of national assemblies, restricted the activities of opposition parties, curtailed or extinguished political freedoms, controlled the media, and repressed dissent, often violently (Budiman 1994; Lubis 1993).
Since Soeharto resigned in May 1998, however, Indonesia has undergone an enormous number of constitutional, democratic, and decentralising reforms (Hosen 2010). The Constitution now contains a Bill of Rights that draws on the Universal Declaration of Human Rights (Lindsey 2002). The electoral system was overhauled, and many new political parties have emerged to participate in free and fair elections (see www.freedomhouse.org). Many functions of government—including some lawmaking powers—have been devolved to almost 500 governments in provinces, districts, and cities.
Critical to the overhaul of the Indonesian polity has been judicial reform, notably the establishment in 2003 of the Constitutional Court (the MK: Mahkamah Konstitusi).1 The MK has four functions that place it at the forefront of Indonesian politics and legal and democratic progress:
- 1 Constitutional review: The MK ensures that statutes passed by Indonesia’s national parliament comply with the constitution. It is the only court to have had this power since Indonesian independence was declared in 1945.2
- 2 Investigate allegations of electoral impropriety or error and if necessary reallocate parliamentary seats.
- 3 Resolve disputes about the jurisdictions of state institutions and the dissolution of political parties.
- 4 ‘Provide a decision’ if the national parliament suspects that the president or vice-president has committed treason or corruption, another serious crime or form of misconduct, or otherwise no longer fulfils the constitutional requirements for holding office.
This chapter seeks to assess what the MK has contributed to Indonesian constitutionalism and democracy. It also attempts to situate the court within the typology of judicial politics outlined in the introduction. Given its celebrated independence (Butt and Lindsey 2008; Butt 2007b) the court clearly does not fall into the judicial muteness or politicised category. At first blush, it might seem to fit comfortably within the judicial activism category: It has confidently decided ‘mega-politics’ disputes—particularly democracy-related cases, such as electoral and candidacy disputes. It has upheld the new Bill of Rights, notably rights related to freedom of speech and the right to vote, and has declared invalid laws that it found to conflict with it. In particular, the court has entered the debate about the role of religion in the Indonesian state—perhaps the most vexed political issue in modern Indonesian history. The MK has even identified constitutional rights and state obligations not spelled out in the Constitution and then upheld them or enforced them against the state. It has also resisted parliamentary attempts to restrict its jurisdiction.
On the other hand, in some cases the court has worked to avoid striking down statutes even after deciding they were unconstitutional. For instance, it has limited decisions so that they only become operative into the future, allowing unconstitutional statutes to remain in force for a specified time and declaring statutes ‘conditionally constitutional’ or ‘conditionally unconstitutional’.
Such measures might be considered attributes of a politicised rather than an activist court. At first blush, they seem to indicate that the court has respect for the legislature and wants to cause it as little disruption as possible. But I intend to demonstrate here that most of the MK’s avoidance measures reflect a strategic pragmatism that may in the long run allow the court not just to maintain but perhaps even intensify its activism. I argue, in fact, that the MK’s declarations of conditional constitutionality or unconstitutionality are disguised activism. In these decisions, even though the court does not strike down provisions of a statute before it, it often does effect de facto legal change by requiring that the statute be interpreted in a specific way. In doing so it often functions as a sort of second parliament, amending legislation to ensure that it complies with the Constitution. But the 2003 Constitutional Court Law was itself amended in 2011 in a way that, I argue, seeks to prevent the court from continuing to issue conditional constitutionality decisions. So perhaps this avenue of activism is now closed off.
I begin by discussing the history behind the court’s establishment and factors that seem to drive its approach to its work. I then examine its activism and ‘avoidance measures’ by discussing key decisions in electoral disputes and judicial review applications. Finally, I assess the effects the court’s activism has had on the Indonesian polity.
Mietzner (2010) finds the roots of the MK in political disputes that occurred immediately after Soeharto’s departure that underlined the need for new mechanisms to resolve political conflict. He comments that ‘Key socio-political forces quarrelled over unclear laws and regulations, triggering conflicts that threatened to derail the democratisation process’ (Mietzner 2010: 410).
The much-contested 1999 general election result is an example of such a conflict (Mietzner 2010: 410), but the conflict most often cited as leading to the establishment of the court was the ‘constitutional crisis’ surrounding former President Abdurrahman Wahid’s removal from office in 2001 (Lindsey 2002: 244; Harijanti and Lindsey 2006: 147; Widjojanto 2004: 211; Asshiddiqie 2004: 11). Wahid’s party had obtained only 13 percent of the vote in the 1999 general election but for various reasons the People’s Consultative Assembly (MPR: Majelis Permusyawaratan Rakyat) saw him as an acceptable compromise president. But Wahid found it difficult to cobble together the parliamentary majorities he needed to get laws passed, and by mid 2001 the wheels of government had largely ground to a halt (Lindsey 2002: 257). Wahid was also implicated in corruption scandals. Fearing that the MPR would try to remove him, he sought pre-emptively to dissolve parliament but was unable to convince the military to support him. Instead, the MPR did remove him and installed Megawati. The affair was marked by so much confusion and controversy that it provoked heavy debate about the need for an impartial institution to help settle high matters of state.
Such disputes account only for the court’s powers to decide electoral disputes and parliamentary impeachment motions, however. They do not explain why the court was given judicial review powers—one of its most important and most active functions.
Ever since independence Indonesian judges, lawyers, and scholars had been arguing that the Indonesian Supreme Court or a specific-purpose Constitutional Court was needed to ensure that laws enacted by parliament conformed to the Constitution (Lev 1978; Husein 2005: 72–3; Asshiddiqie 2004: 5), but Soeharto had put in place structural and ideological mechanisms that effectively quashed reform (Butt 2007b). The regime leaned heavily on a national mantra that economic development (pembangungan) required political stability, which dissent and opposition would undermine.
This was reinforced by the way some New Order government ideologues interpreted the national ideology, Pancasila ,3 as being aligned with the concept of ‘integralism’. Professor Soepomo, a distinguished legal scholar, had proposed this as a basis for the Indonesian state during constitutional debates in the leadup to independence in 1945 (Feith and Castles 1970). Integralism enshrined the concept that state and citizens together constituted a single entity (see generally Simanjuntak 1994). According to Soepomo, because the state was at one with the people, it must be sensitive to the community sense of justice, but it must also transcend all groups in every field. This totalitarian or integralistic ideal required a firm executive. There was also no need to protect individual human rights from the state because the individual was an organic part of the state. Neither pembangunan nor Pancasila left any space for opposition to the government in the form of judicial review, let alone judicial independence.
When Soeharto fell, the pembangunan mantra and his interpretation of Pancasila fell into deep disfavour, previously centralised power was dispersed, and important structural reforms were made to Indonesia’s judicial system. A raft of new statutes was enacted relating to the Supreme Court and the courts below it. A primary purpose of these ‘one-roof’ (satu atap) reforms was to provide a legal basis for the transfer of control over the organisational, administrative, and financial affairs of the lower courts from the executive branch to the Supreme Court.4 This, it was hoped, would help improve judicial independence by releasing the courts from the formerly tight supervision under Soeharto.
The effective allocation of the power of the state to a number of sources— particularly a democratically elected parliament and the courts—has dismantled the core feature of the integralistic state: political power concentrated in the hands of the president and his elite (Waddell 2005: 52). In these conditions reformist calls for judicial review, no longer repressed, carried great force.
Establishing a new court with jurisdiction to check government power and decide electoral disputes had great popular and parliamentary support—it seemed one way of ensuring that post-Soeharto Indonesia did not slip back into authoritarianism (Eldridge 2001; ICG 2001). Simply granting the Supreme Court jurisdiction to resolve electoral and institutional disputes, hear judicial review applications, and consider impeachment motions was not a viable option. Even though its independence was to be formally enshrined in the Constitution and new laws, the Supreme Court’s reputation for impartiality and competence was in tatters after decades of institutional neglect and corruption (Pompe 2005). The only choice, it seemed, was to establish a new court to exercise these powers.
The political conflicts, the reconfiguration of the Indonesian polity, and postSoeharto reformasi fervour combined to support establishment of the MK. In particular, the mechanism for appointments to the MK was designed to ensure the independence of its judges. The three primary arms of government—the national parliament, the president, and the Supreme Court—each choose three judges for the nine-judge bench.5 This mechanism has produced a diverse bench—judges have been academics, former judges, politicians, even retired army officers; it is also said to make judges feel more secure in handing down decisions that might not please their nominating institution in that they can be selected for a second term by one of the other arms of government (Mietzner 2010: 404).
Many of the court’s achievements—particularly the reputation it has acquired for being trustworthy and competent—are attributable to the skill and commitment of its founding chief justice, Jimly Asshiddique, who had been a respected professor of constitutional law at the University of Indonesia. From the moment the court went into operation, Assiddique was able to draw significant political support for it even though its very function was to restrict the exercise of political power. Though the MK’s beginnings were humble,6 it now has a sizeable budget that allows it to pay its judges and staff more than those of other judicial institutions— even the Supreme Court—and that funded construction of one of the most impressive buildings of any state institution since Soeharto’s fall (Mietzner 2010: 405).
Asshiddique was also undoubtedly instrumental in ensuring that MK decisions are better reasoned and more accessible than the decisions of other courts, though often the legal reasoning remains questionable (Butt 2007b, 2011). In particular, under his leadership the court set out some of the jurisprudence discussed below, for instance by deciding that Indonesia’s version of the rule of law (the negara hukum , ‘law state’) is a constitutional principle from which rights and obligations flow, and by upholding human rights and democratic principles. Under a different leader the MK might well have taken a more conservative path. That would not have been surprising given Indonesia’s history of judicial subordination to government.
Asshiddique resolutely and successfully guarded the integrity of the court, and Mahfud, his successor, followed that precedent. Though most other Indonesian judges are generally assumed to be corrupt, the integrity of MK judges has not been seriously questioned, although there have been allegations of impropriety. In October 2010 it was alleged that an MK judge had been bribed with one billion rupiah in an electoral case, but a fact-finding team was unable to find any corroborating evidence (Savitri 2010; Desyana 2010). In another ‘scandal’, Judge Arsyad Sanusi resigned in February 2011 after it was alleged that his daughter and son-in-law had accepted bribes from an applicant in a 2009 Constitutional Court case. Again, after investigation no proof was found that Justice Sanusi even knew about the bribe, let alone received it. Nevertheless, he decided to resign to sustain the court’s reputation (Hukumonline 2011a).
I now turn to several of the most high-profile and controversial cases the MK has handed down, starting with judicial review cases, in which it has struck down legislation impeding human rights mentioned in the Constitution; imposed unwritten constitutional obligations upon the state; and even assessed government economic policy and budget allocations. (It is not possible here to give detailed consideration to the court’s reasoning, however.) I then turn to democracy-related cases—disputes about vote-counting, the constitutionality of electoral laws, and candidacy.
Article 50 cases. From its earliest days the MK has resisted parliamentary attempts to limit exercise of its jurisdiction. Article 50 of the MK Law—the statute that established the court and covers its composition and procedures— limits the court to reviewing statutes enacted after the first amendment to the Constitution in 1999. In a series of cases, a majority of the MK first ignored and later invalidated Article 50.7 It held that because the Constitution imposed no such limitation upon the exercise of its jurisdiction, parliament could not seek to impose it. The MK has reviewed many statutes enacted well before 1999.
Human rights. By invalidating national legislation the MK has upheld a number of the human rights listed in the Bill of Rights. It has, for example, upheld the rights to free speech,8 to be free from the operation of retrospective laws,9 to access information,10 and to be free from discrimination.11
However, the court has also regularly applied Article 28J(2) of the Constitution, which states, ‘When exercising their rights and freedoms, each person must submit to limits determined by legislation with the sole purpose of guaranteeing recognition and respect for the rights of others’.
In these cases, the court has avoided striking down the statute in dispute, on the grounds that it is directed towards protecting the human rights of others or has another purpose, such as public order.12
Implied rights and state obligations. In several cases, based primarily on two constitutional provisions the MK has imposed obligations on the state that the MK found to be implicit rather than explicit in the Constitution. The first provision is the preamble, which states that the government is ‘to protect all Indonesians and their native land and to further public welfare, the intellectual life of the people, and to contribute to the world order of freedom, peace and social justice’. The second is Article 1(3), which states that Indonesia is subject to the rule of law. From these provisions the MK has implied broad state obligations, including obligations to protect citizens from corruption,13 to protect the domestic broadcasting industry from foreign domination,14 and to provide a fair trial, access to justice, legal aid and the presumption of innocence.15 It has done this largely without fanfare and without stirring controversy about whether it is overstepping its jurisdictional boundaries.
Economic rights and issues. Article 33 of the Constitution requires that the economy be structured as a ‘common endeavour’ and that the state control natural resources and sectors that provide the necessities of life. On several occasions, the MK has been asked to consider whether that article provides scope for privatisation of important industries and natural resources, namely electricity, oil and natural gas, forestry resources, and water. In its first case in this area, for example, the court decided that the 2002 Electricity Law, which sought to loosen state control of the sector and allow for significant private ownership and involvement, fell foul of Article 33.16 It invalidated the entire statute.
By contrast, in the Water Resources (SDA) Law case, the majority upheld the constitutionality of the statute, finding that it did not in fact relinquish government control over water resources.17 The law, the judges said, had merely made it possible for the state to grant to the private sector a right to exploit water. The government retained power to make policy and regulations, manage water resources, and grant permits for water exploitation.
These cases raise questions about the extent to which the court should engage, if at all, in public policy debate. On the one hand, the court has strongly emphasised that it lacks jurisdiction to assess state or government policies conveyed through legislation.18 Yet surely in these cases it has done just that. In the Electricity Law case in particular, the MK stance seems to have been that privatisation cannot guarantee the prosperity of the people, as required by Article 33(2) (Butt and Lindsey 2008).
Education budget. The Indonesian Constitution requires that the national parliament allocate at least 20 percent of the state budget to education. The Indonesian Teachers’ Association and others regularly asked the court, in cases filed almost annually since 2004, to invalidate state budgets that fail to meet this target.19 (Because the budget is a statute, the court can assess it.) These cases are about as straightforward as legal cases can be: the constitutional target seems clear; the budget does not meet the target; therefore, the budget does not comply with the Constitution. Realising, however, that budgets are hotly political and usually delicately balanced, each year the court has declined to invalidate them, citing the likelihood of ensuing financial chaos. Instead, the court has urged the government to increase the budget allocation for education from year to year. The national parliament eventually allocated 20 percent of the state budget to education starting in 2009, though partly by including teacher salaries in the calculation (Desafti 2010).
Freedom of religion and the place of Islam. The Constitution confirms the right to freedom of religion in at least three different places. Article 29(1) says that the ‘state guarantees the freedom of every person to embrace their respective religion and to worship in accordance with that religion’; Article 28E(1) says that the ‘state is to guarantee the independence of every citizen to embrace their respective religion and to worship in accordance with that religion and belief’; and Article 28I(1) says that this right ‘cannot be limited in any way’.
Indonesia has more Muslims than any other nation, and about 90 percent of its estimated 240 million people consider themselves Muslims. Yet Indonesia is not an Islamic state. It is a country of significant diversity—ethnic and linguistic as well as religious. Even within Indonesian Islam there is significant diversity of thought and belief (Feener 2007). The government recognises and enforces Islamic rules against Muslims in limited fields—primarily family matters and Islamic finance—but the rules have been watered down to reflect moderate interpretations of Syariah. Still, the place of Islam is a very sensitive issue that the state usually seeks to avoid as far as possible (Butt 2010a).
Some Indonesian Muslims, said to be a minority, still seek a greater place for Islam and more conservative Islamic law in the Indonesian state and government. For many of them, Islam provides a comprehensive set of rules—civil, criminal, and public—for life. Some have brought challenges before the MK to what they see as state interference in their right to religious freedom (Butt 2010a). The court appears to have been concerned to douse such arguments and maintain the status quo.
Polygamy has been one controversial issue. Indonesian law does not ban polygamy. It is permitted, but only with the consent of a religious court. The law makes obtaining such consent difficult. In one case a man sought to challenge these polygamy restrictions.20 He argued that Islam required him to observe Islamic law and that, in the interpretation he followed, Islamic law permitted polygamy. The restrictions were therefore unconstitutional.
Surprisingly, in its decision the MK focused on Islamic law rather than the right to religious freedom. After discussing various Koranic verses, the court found that Islamic law did not in fact require polygamy. It also decided that the state had authority, under Islamic law, to set requirements for citizens who wanted to enter into a polygamous marriage. In any event the state had not prohibited polygamy.
In another MK case21 a young graduate of an Islamic school (Madrasah) in Serang, Banten, argued that full adherence to Islam required full adherence to the corpus of Islamic law, including matters of public law and criminal law and its punishments. The relief he sought was to expand the jurisdiction of the religious courts so that he could realise his constitutional rights. Not surprisingly, the MK rejected this claim, pointing out that under the Constitution the national legislature had power to limit the jurisdiction of all Indonesian courts. The Court concluded:
Indonesia is not a religious state which is based only on one religion; but Indonesia is also not a secular state which does not consider religion at all. It does not hand over all religious affairs entirely to individuals and the community. Indonesia is a state which is based on the Almighty God. The state protects [the rights of] all religious adherents to carry out the teachings of their respective religions. In relation to the philosophy of Pancasila, national law must guarantee the integrity of the ideology and the integration of the nation and develop religious tolerance based on justice and civility. National law, therefore, can be an integrating factor which is a glue and unifier of the nation. The state’s service to citizens does not depend on whether adherents to a particular religion, ethnic group, or race are in the majority or minority.
A number of MK cases have involved democracy-related issues, such as disputed election returns, candidacy, and disputes about the electoral system generally.22
Disputed returns. After the 2004 and 2009 elections for the national legislature almost all the competing political parties filed objections with the MK that eventually numbered in the hundreds (Harijanti and Lindsey 2006: 148; Mahfud 2009: 27–9; Asshiddiqie 2009: 11; Sukma 2009: 322). Most alleged ‘irregularities’, ranging from the deliberate and illegal, such as fraud, to the inadvertent and unavoidable, such as counting errors and logistical problems (Ramage 2007: 136, 138; Webber 2006: 399; Sukma 2009: 325). In 2004 the court upheld 38 of 252 petitions; in 2009 it upheld 70 of 657 (Mietzner 2010: 407).
The MK has also settled complaints brought by presidential candidates. For instance, Wiranto, former commander-in-chief of the Indonesian Army (TNI: Tentara Nasional Indonesia), ran for president in 2004, lost, and challenged the results (Harijanti and Lindsey, 2006: 140). In 2009 he was back before the court for the same reason, though this time as the running mate of Jusuf Kalla, former vice-president to Susilo Bambang Yudhoyono. Also in 2009 former President Megawati Soekarnoputri and her vice-presidential candidate, Prabowo Subianto, challenged the presidential election results. The court rejected all these cases, and the plaintiffs accepted its decisions (Mietzner 2010: 407).
Candidacy cases. The MK has also ruled on whether particular individuals can stand as candidates. In 2004, for example, former President Abdurrahman Wahid unsuccessfully challenged a statute that appeared to prohibit him from standing for president again on the basis that he was physically incapable of performing the role (Harijanti and Lindsey 2006: 140). Of more note was a 2004 case in which the court decided that people who had been members of the Indonesian Communist Party or other prohibited organisations, or had been involved in the 1965 coup could be nominated for candidature in local, regional, and national elections.23 Strictly speaking, this was a judicial review case, however, because the MK decision invalidated legislation that prohibited these groups from being nominated. According to the court, the law breached the constitutional right of Indonesians to participate in government and to be free from discrimination.
In two separate cases,24 applicants challenged provisions of Law 10 of 2008 on Elections for the National Parliament, Regional Representative Council, and Local Parliaments that prohibited candidates from running if they have been convicted of a crime that carried a maximum of five years’ imprisonment. The court decided the provisions were conditionally constitutional—that is, constitutional as long as they were not applied to political crimes and minor offences.
The sisa suara case. Under Indonesia’s electoral laws, the number of votes required for each parliamentary seat (the ‘seat threshold’, Bilangan Pembagi Pemilihan), national or regional, is determined by dividing the number of registered voters in an electoral area by the number of seats allocated to that area. Once votes meet the threshold, a party obtains a seat. Of course, not all seats can be filled in this ‘first phase’: some parties will not receive enough votes to obtain a seat; others obtain seats but their ‘left over’ votes are insufficient to obtain a further seat. The court was asked to determine how ‘surplus votes’ (sisa suara) would be used to allocate parliamentary seats.25
This dispute concerned the way the Indonesian Electoral Commission (KPU: Komisi Pemilihan Umum) chose to allocate these surplus seats in this ‘second phase’. The KPU had decided, by internal regulation (Reg. 15 of 2009), that the remaining seats would be allocated more or less proportionally by reference to the surplus votes alone. Votes used to obtain a seat in the first phase were in effect exhausted and could not be used again in this second round.
Several members of the Democratic Party (PK: Partai Demokrat) who had missed out on a seat because of this allocation method asked the Supreme Court to assess whether the regulation complied with Indonesia’s Legislative Election Law (Law 10 of 2008). The Supreme Court decided that it did not, interpreting the law to require that seats left over from the first phase be allocated by reference to the proportion of all the votes a party received, including those that had already gone towards obtaining a seat. This result clearly favoured major parties because their votes would, in effect, be counted twice: once to determine whether they had met the quota for a seat and again when the proportion of votes they had obtained overall would be used to determine how many surplus seats they would obtain. The Supreme Court decision was clearly significant: 66 seats in the national parliament (DPR: Dewan Perwakilan Raykat) would need to be reallocated and about 1,300 in regional parliaments. President Susilo Bambang Yudhoyono’s PD would have benefited most, gaining an additional 31 seats, and Megawati’s PDI-P and Golkar would have gained about 16 to 19 seats each.
Several parties that would have lost seats under this arrangement appealed to the MK. The court upheld their claim, holding that the Legislative Election Law, which the disputed KPU regulation had sought to implement, was so unclear as to fall foul of the constitutional guarantee of ‘legal certainty’. Instead of invalidating the provisions, however, the court held them to be ‘conditionally constitutional’—that is, valid as long as they are applied in terms of the MK’s interpretation of them. Pointing to recent scholarship on the rights of minorities in democracies, the court held that parties with 50 percent or more of the threshold would receive a seat. If seats remained, these would be allocated in a third phase. The MK’s interpretation resembles the KPU regulation that the Supreme Court had struck down. To do otherwise, the MK noted, would allow a vote that had already been converted into a seat to be used twice—something that had no place in a proportional electoral system like Indonesia’s that is based on democratic principles.
Electoral roll case. 26 The MK was asked to invalidate Articles 28 and 111(1) of Law 42 of 2008 on Presidential and Vice-Presidential Elections which required citizens to register with the KPU in order to vote. The court decided that the constitutional right to vote could not be impeded by administrative requirements. It ordered that citizens who held a valid identity card or passport had to be allowed to vote even if they were not on the electoral roll.
Timidity and conservatism?27
Although it has attracted support and respect from the Indonesian public and the legal sector, the MK has regularly faced hostility to its decisions from politicians. This is hardly surprising: until the court was established, government officials and parliamentarians were accustomed to operating largely unscrutinised, and they were certainly not used to having their laws invalidated.
From its earliest days it became clear that the MK needed to find ways to soften the effect of its decisions on the legislature. If the court failed to accommodate the environment in which it operated, it faced irrelevance and disrespect (if it continued to make decisions that the government ignored or circumvented) or even disbandment (if powerful politicians became so irritated by its decisions that they moved to have the court dissolved). Several institutions born during the post-Soeharto reformasi fervour had trod less carefully, prompting a political backlash strong enough to threaten their efficacy and in some cases their very existence (Butt 2007a, 2011).
In its very first reported case the MK struck down Law 20 of 2002 on electricity.28 The law had been enacted for several reasons. One was to increase the power and reach of Indonesia’s electricity network. (Indonesia’s electrification rate is around 65 percent, one of the lowest in the region.) Another was that International Monetary Fund (IMF) financial assistance for resuscitating Indonesia’s economy after the financial crisis of 1997 was contingent on Indonesia meeting various ‘conditionalities’, one of which was privatisation of various areas of the electricity sector. The Electricity Law therefore sought to break down the state monopoly of the provision of electricity.
The MK’s decision was not well received by members of the legislature and the executive. Politicians strenuously criticized the court, charging that it lacked the expertise to make decisions about matters of economic policy; with only nine judges, it was also argued, the MK lacked democratic legitimacy to invalidate the statutes of a 550-member elected parliament. Moreover, the court had prevented the government from complying with the IMF conditionalities without considering the consequences; and privatisation was in any case critical to ensure that Indonesia would have sufficient electricity to meet demand.
The response was decisive. Within two months of the decision, the government had issued a regulation that in effect reinstated the thrust of the invalidated law. Because it was similar to the Electricity Law, it is probable that the regulation also breaches Article 33 of the Constitution. But the MK has no jurisdiction to examine the legality of government regulations; it can only assess the constitutionality of statutes.
Since the Electricity Law case, the MK has adopted at least four techniques that appear geared towards making its decisions more politically palatable, particularly to the legislature. Here the Indonesian court is not alone; many continental European states employ similar techniques (Stone Sweet 2000; Nardini 1999; Koopmans 2003). However, on closer inspection, in Indonesia at least most of these techniques are pragmatism in disguise; they might even be considered hidden activism.
One way the MK has softened the impact of its decisions is by declaring that they will operate only into the future. In other words, even if the court finds that a law is inconsistent with the Constitution, its invalidation operates only from the date the court hands down its decision. Anything done under the law before then is not tainted by the illegality and so does not need be to ‘undone’. An example of the ramifications of this approach is the Bali Bombing case,29 where the MK decided that the law under which the Bali bombers were investigated and ultimately convicted was unconstitutional because it was enacted after the bombings took place, breaching the constitutional prohibition on criminal laws with retrospective application. However, it was not necessary to set the Bali bombers free or retry them. Because they had been convicted under the law before the MK invalidated it, their convictions stood.
This tempering technique is highly problematic: there seems little to be gained from asking the court to assess whether a law is consistent with the Constitution if an applicant cannot use a favourable MK decision to force the government to undo an action it has taken. Only people to whom the unconstitutional law would be applied in the future gain from the benevolence of the applicant whose approach to the MK led to the law being struck off the books. Meanwhile, the government can pass a law that egregiously breaches human rights and apply it with impunity until someone asks the MK to strike it down. Even if the party is successful, any action taken under the law before the MK makes that decision will be considered ‘legal’.
A second MK technique is to declare that a statute is not consistent with the Constitution but then refuse, because the consequences of invalidating it would be too great, to strike the law down, instead asking the government to make further attempts at compliance.30 As we have seen, the court took this approach in the Education Budget cases. A third method is to declare that a statute breaches the Constitution but refuse to strike it immediately, choosing instead to set a deadline for the national parliament to pass a new, constitutional, law.
Since these first three techniques are probably themselves unconstitutional or otherwise illegal, they raise significant questions about the court and its role. The Constitution requires the MK to ensure that the national parliament follows the Constitution. When the parliament fails to do so and the court chooses not to intervene (as in the budget cases) or chooses to give a deadline for the parliament to replace an unconstitutional law, it seems to be failing to do its duty. It is allowing laws to continue in force that it has determined are beyond the parliament’s lawmaking power. Further, by giving its decisions prospective effect only, the court seems to implicitly sanction actions the government may have already taken under an unconstitutional statute. On one view, then, the MK, though charged with enforcing the Constitution, is itself breaching it. This would appear to leave the rule of law—which requires at a minimum that the government, including the courts, abide by the law, particularly the Constitution—teetering on the brink of irrelevance.
Perhaps, though, such criticisms should be reserved for constitutional courts which, although operating in political systems in which judicial review and accountability mechanisms are well accepted and established, persist in using similar tempering techniques. It may be unfair to judge the MK using the standards of countries that have more compliant and respectful governments, and where political considerations are not so overwhelming. Perhaps because the court has shown enduring signs of promise, expectations of what it can achieve in Indonesia’s political environment are simply unreasonably high. In my view, the MK’s current approach is quite realistic. The court is building for itself a reputation for handing down impartial and reasoned decisions without drawing excessive pushback from government. As it establishes itself, and as government compliance with its decisions becomes the norm, it can begin issuing more zerosum decisions. Ironically, then, the MK may be tempering its own activities to ensure its continuing activism. Perhaps if it is to have any chance of making the government follow the letter of the Constitution in the future, the court must itself deviate from the Constitution at least for now.
The final technique to be discussed is perhaps the one the MK uses most. In many cases the court has decided that a law is ‘conditionally constitutional’— that is, it is constitutional and can stay on the books so long as it is implemented in a way the court thinks is constitutional.
The surplus votes case is one example of this. In another case,31 the court declared that, although it had concerns about the Water Resources Law similar to those it had about the Electricity Law, the MK would not invalidate it provided that the government issued regulations which were consistent with the Constitution. In yet another case,32 the court was asked to assess whether a law which allowed film censorship breached the constitutional right to free speech. The court criticised the law for being behind the times in terms of democracy and freedom of expression but nevertheless declared it to be conditionally constitutional—that is, constitutional provided the censorship board implemented it in ways that reflect democratic principles and human rights norms.
On the one hand the conditional constitutionality technique appears to show deference to parliament. With it the court airs the constitutional problems it has found in a statute but does not require that parliament take any action, thereby avoiding the time and effort associated with parliamentary processes. Action is required only of the party or institution that implements the law.
On the other hand, this method also seems to allow the MK in effect to amend statutes. Though often the court claims that it is not a ‘positive legislator’—it can only invalidate unconstitutional laws—when it declares a statute to be conditionally constitutional, it seems to be assuming that very function. By imposing an interpretation of the law that differs from the terms of the law, it is in effect making a de facto change to the law (Butt 2011). Likewise, when the MK makes the constitutionality of a statute conditional upon its implementing regulations themselves being consistent with the court’s interpretation of the statute, the MK appears to assume some form of control over regulations. Yet, as we saw with the Electricity Law case, it lacks jurisdiction to review regulations.
Despite being less than a decade old, the MK has proved itself to be critical to post-Soeharto electoral democracy and the move towards constitutionalism. Since Soeharto’s fall, Indonesia has become one of the world’s most democratic countries—certainly if the sheer number of elections held there is any indicator. Indonesians now vote in more free, fair, and competitive elections than citizens of ‘nearly any other democracy’ (Ramage 2007: 136).
Electoral democracy has brought new challenges, however. Indonesia’s political landscape is highly fragmented. Seats are at a premium, making elections particularly competitive and leading to disputes about the results for which resolution is crucial. Scholars (Ipp and Hoverter 2005: 834; Williams 2007: 938) have argued that relatively peaceful elections in conflict-prone areas and highly pluralist states, such as Indonesia, are attributable at least in part to the availability of professional resolution of electoral disputes. Without enforceable political and democratic rights—and credible electoral contests, institutions, and dispute adjudication—the legitimacy of elections is at risk.
The MK has, it seems, done more than ensure that Indonesian elections are free and fair. It has been vital to keeping the peace between political parties and ensuring election legitimacy (Mietzner 2010). Contesting political parties have largely accepted its decisions (Ramage 2007: 138; Webber 2006: 339), presumably because the decisions were seen as professional and impartial. That is why members of the court refer to the MK as the ‘guardian’ of Indonesia’s democracy (Mahfud 2009; Asshiddiqie 2009; Asshiddiqie 2008; Mahkamah Konsitusi 2009).
The judicial review decisions discussed show that the MK can be considered an activist court. It has struck down numerous statutory provisions for breaching the Constitution or the Bill of Rights. In so doing the MK has been instrumental in dismantling integralism and building a culture of constitutionalism among Indonesia’s lawmakers. (By all accounts, MK decisions are forcing some parliamentarians to at least flick through the Constitution before they sign off on laws; and they are said to be making parliamentarians more careful about what they attempt in parliament and say in parliamentary debates, lest the MK ask for a transcript and reveal debates at trial for all to see.) And even though some of its tempering techniques may seem to reflect political compromise, they may indeed reflect the court expanding its jurisdiction but they may instead be necessary for the court to consolidate its position within the Indonesian polity.
Equally important is that the MK provides a very public forum in which highorder legal issues are openly explored and grievances between citizens and the government can be fully aired, if not always satisfactorily resolved. Its decisions are broadcast live on television and streamed over the Internet. Its tempering techniques do not seem to deter citizens, organisations, and other institutions from using it—they flock to the court to bring cases. Perhaps the court as a forum in which the government is held to account to citizens for the laws it makes is so far its greatest achievement.
Yet despite its activism approach to judicial review, it is easy to overstate the MK’s contribution to Indonesian constitutionalism. Its powers are limited; it can review the constitutionality only of statutes enacted by the national parliament, although the bulk of Indonesian law is found in executive and departmental regulations, such as government and presidential regulations and ministerial decrees (Thoolen 1987: 58). It also lacks jurisdiction to review the many thousands of bylaws that local governments have enacted since the decentralisation reforms (Butt 2010b). Only the Supreme Court can review these types of ‘lower-level’ laws, and even then only in relation to statutes. There is, therefore, no judicial mechanism for testing the constitutionality of laws of a lower rank than statutes.33 Yet the need for effective review of regulations is arguably more acute than for review of statutes, because regulations are often issued without parliamentary scrutiny and debate. Unless the MK’s jurisdiction is expanded to cover them, in general constitutionalism in Indonesia will remain weak.
Recently, the national legislature has, in amendments to the Constitutional Court Law in 2011, struck back at the MK’s conditional constitutionality decisions. Indeed, former Law and Human Rights Minister Patrialis Akbar introduced the amendments as being a step to prevent the court being a ‘positive legislator’ (Hukumonline 2011b). Of particular note is Article 57(2a) of the 2011 Amendment, which says
Constitutional Court decisions are not to contain:
- a declarations other than those referred to in Article 57(1) and (2).
- b orders to lawmakers.
- c formulations or norms to replace the norms of legislation that are declared to conflict with the Constitution.
Articles 57(1) and (2) state:
- 1 If the Constitutional Court declares that the contents of a subsection, provision and/or part of a statute conflict with the Constitution, then the contents of that subsection, provision and/or part of the statute no longer have binding force.
- 2 If the Constitutional Court declares that requirements, based on the Constitution, for the enactment of the statute were not fulfilled, then that statute no longer has binding force.
Article 57(2a) appears to squarely confront the MK’s declarations of conditional constitutionality and unconstitutionality. When it has made the constitutionality of a provision subject to its interpretation in a specific way—such as by adding or deleting parts of the provision—the court indeed seems to be replacing parliamentary legislation with its own. These provisions seem, therefore, to require that MK choose between invalidating provisions of questionable constitutionality—which in most cases would require a legislative response—or leaving them in force.
Chief Justice Mahfud has announced that the MK has accepted the amendments even though they would likely make it difficult to provide substantive justice (Hukumonline 2011b). However, it seems likely that, given its past efforts to protect its jurisdiction, or at least to delineate the boundaries of that jurisdiction, the MK will search for a way to circumvent this restriction, too.
1 The third amendment to Indonesia’s constitution, approved on 9 November 2001, provided for establishment of the MK; the fourth amendment (10 August 2002) required that it be created by 17 August 2003, with the Supreme Court (Mahkamah Agung , MA) exercising its jurisdiction in the meantime (Constitution, Transitional Provisions, Article III). The law creating the MK (No. 24 of 2003) was passed on 13 August 2003. Soon after, its judges were installed by presidential decree and the court began accepting cases.
2 The Federal Constitution, which was in force for only one year (1949–50), permitted judicial review of state, but not federal, statutes (Articles 130(2) and 156(1) of the Interim Indonesian Constitution of 1950).
3 Pancasila (literally ‘The Five Principles’) embodies a commitment to the following principles:
- 1 Ketuhanan Yang Maha Esa (Belief in Unitary Deity);
- 2 Kemanusiaan Yang Adil dan Beradab (A Just and Civilised Humanity);
- 3 Persatuan Indonesia (The Unity of Indonesia);
- 4 Demokrasi; and
- 5 Keadilan Sosial (Social Justice).
4 The process began with Law No 35 of 1999, which amended the Judicial Power Law of 1970. There followed Law No 4 of 2004 on judicial power, which replaced the 1970 law; Law No 5 of 2004, which amended Law No 14 of 1985 on the Supreme Court; Law No 8 of 2004, which significantly amended the General Courts Law (Law No 2 of 1986); and Law No 9 of 2004, which amended Law No 5 of 1986 on the administrative courts.
5 Article 24C(3) of the Constitution; Articles 4(1) and 18(1) of the MK Law.
6 The court started out in 2003 with an office in the MA building but without any administrative staff, then shifted to a Jakarta hotel for about a month. From there it moved into an office complex for six months, holding court at the People’s Consultative Council (Majelis Permusyawaratan Rakyat , MPR)/national parliament building. Not until January 2004 did the MK obtain its own building (Asshiddiqie 2004: 14–15).
7 MK Decision 004/PUU-I/2003; MK Decision 013/PUU-I/2003; MK Decision 066/ PUU-II/2004.
8 See, for example, MK Decisions 6/PUU-V/2007 and 012–022/PUU-IV/2006.
9 See, for example, MK Decision 013/PUU-I/2003.
10 See, for example, MK Decisions 9/PUU-VII/2009 and 98/PUU-VII/2009.
11 See, for example, MK Decision 011–017/PUU-I/2003.
12 See, for example, MK Decisions 013–022/PUU-IV/2006 and 14/PUU-VI/2008.
13 MK Decision 006/PUU-I/2003.
14 MK Decision 005/PUU-I/2003.
15 See, for example, MK Decision 006/PUU-II/2004.
16 MK Decision 001–021–022/PUU-I/2003.
17 MK Decisions No 058–059–060–063/PUU-II//2004 and 008/PUU-III/2005.
18 MK Decision 006/PUU-I/2003.
19 See, for example, MK Decision 011/PUU-III/2005; MK Decision 026/PUU-III/2005.
20 MK Decision 12/PUU-V/2007.
21 MK Decision 19/PUU-VI/2008.
22 For discussion of other democracy-related cases, see Mietzner (2010).
23 MK Decision 011–017/PUU-I/2003.
24 MK Decisions 14–17/PUU-V/2007 and 15/PUU-VI/2008.
25 MK Decision 110–111–112–113/PUU-VII/2009. Discussion of this case draws on Butt 2009.
26 MK Decision 102/PUU-VII/2009.
27 Parts of this section draw on Butt (2007b).
28 MK Decision 001–021–022/PUU-I/2003.
29 See, for example, MK Decision 013/PUU-I/2003.
30 See, for example, MK Decision 012–016–019/PUU-IV/2006.
31 MK Decision 058–059–060–063/PUU-II/2004 and 008/PUU-III/2005.
32 MK Decision 29/PUU-V/2007.
33 Indonesia’s ‘hierarchy of laws’ (tata urutan peraturan perundang-undangan) sets out state institutions and individuals that can make laws in Indonesia, the types of laws they can make, and the relative authority of those laws. The most recent version of the hierarchy, in Article 7(1) of the Lawmaking Law (Law No. 4 of 2004, amended in 2011), is as follows:
- 1 The 1945 Constitution (Undang-undang Dasar 1945);
- 2 MPR Decrees (Ketetapan MPR);
- 3 Statutes (Undang-undang)/Emergency Interim Laws (PERPU);
- 4 Government Regulations (Peraturan Pemerintah);
- 5 Presidential Regulations (Peraturan Presiden);
- 6 Provincial Regulations (Peraturan Propinsi);
- 7 City/District Regulations (Peraturan Kota/Kabupaten).