—Fritz Siregar, University of New South Wales
As an emerging democracy, Indonesia is learning how to become a democratic country. The Indonesian Constitutional Court (“the Court”) plays an important role in determining what kind of democracy Indonesia will become, because there is a gap between what the 1945 Constitution tries to achieve, and what is possible given the current political maturity of the various parties. Several boundaries determined by the Court include the possibility for an independent candidate to run as a regional head, the use of a passport for voter identification, and requiring all presidential candidates to be nominated only through a political party. As a newly established institution, the Court needs to establish its institutional power and its legitimacy to be effective. The Court needs to build public confidence, and gain the respect of other governmental institutions (e.g. the executive). The Indonesian Constitutional Court has done remarkably well and, in its first 10 years of tenure, has become a success story among other Asian constitutional courts.
Indonesia’s Constitutional Court has just celebrated its 10th anniversary, and has functioned well as a protector of constitutional rights and defender of the 1945 Constitution. However, the National Representative Council (Dewan Perwakilan Rakyat – DPR) and the Executive (President) are showing signs of wanting to restrain the influence of the Court. In 2011, the government amended the Indonesian Constitutional Court Act to reduce the authority of the Court. Among many provisions of the 2011 Amendment, Articles 45A and 57(2a) were directly targeted at reducing the Court’s authority. Article 45A prohibited the Court from issuing decisions was not sought by applicants (ultra petita). Article 57(2a) prohibited the Court’s from making decisions that override legislated provisions that comply with the 1945 Constitution. By citing Article 45 of the South Korean Constitutional Court and the decision of the U.S. Supreme Court in Marbury vs Madison, the Court struck back by declaring most of the articles in the 2011 amendment, including Article 45A and Article 57(2a), constitutionally invalid.
As background, DPR and the President claimed that the Court had decided cases beyond its original jurisdiction, as mandated by 1945 Constitution. Using its judicial review authority, the Court decided cases with conditionally constitutional decisions that provide Court’s interpretation of statute. Conditionally constitutional decisions are when the Court allows a law of questionable constitutionality to stand, provided that it is interpreted or applied in a way that complies with the Constitution (Butt, 2008). From August 2008 to July 2013, 52% of the Court’s decisions contained conditionally constitutional outcomes.
From the establishment of the Court (2003) until November 2008, the Court heard a number of cases disputing the results of general elections. These cases focused on instances of a mistake in the vote count by the Election Commission. In these cases the Court determined the correct count. However, since November 2008, the Court has moved forward by reviewing the quality of election process itself (e.g candidate nomination, money politics, abuse of power from incumbent candidates). The Court started to withdraw the nomination of candidates, order a re-count of the vote, and even a new election. None of these actions fall under the Court’s jurisdiction under Constitutional Court Law or Regional Autonomy Law. After the Court declared most of the 2011 Amendment constitutionally invalid, the Court continued to behave as it had before the government launched its attack to restrain the Court.
Understanding the role of constitutional courts in emerging democracies has been a subject of study by many scholars of judicial politics. This article examines the performance of the Court through the lens of tolerance interval theory proposed by Epstein, Knight and Shevtsova (2001). By observing political attacks against the Russian Constitutional Court, Epstein, et al, argued that a court needs to respect the limits of the tolerance interval, and that failure to do so will cause the other branches of government to nullify its decision or render it ineffective, which in over time makes the court an ineffective political institution.
The experience of the Indonesian Constitutional Court challenges Epstein and Knight’s theory, specifically their argument that in new or emerging democracies, constitutional courts must respect the tolerance interval in order for their decisions to have plausible and legal effect. Indonesia’s Constitutional Court was never shut down in the way that the Russian Constitutional Court was, even though the Court decided cases beyond its constitutional authority. It has survived the attack. The Court has moved from being a negative legislator to being a positive legislator. The question that remains is, why has the Court become powerful, bold, and not suffered consequences for deciding cases beyond its authority?
One plausible answer offered is the argument that the same rationale for establishing a constitutional court also provides the grounds for the Court to be bold and forceful, even though an authoritarian regime has ceased to exist (Issacharoff, 2011). The Court understands that it was set up to counter the majoritarian dilemma and legitimacy problem, both of which had been falling away. Even though Indonesia is already in the ‘democratic process’, the fragmented political parties create another type of legitimacy problem, which requires the Court to stand up and take the lead. As a form of insurance for democratic rights as argued by Tom Ginbsurg (2003), what the Court does is deliver constitutional ‘protection’. The Court must play this role in the face of either an authoritarian regime or a majoritarian dilemma caused by a fragmented set of political parties. Chief Justice Mahfud introduced what is called the “substantive justice” approach, which means that the Court could issue any decision as long as that is in line with the Constitution. The Court viewed that no Law shall exist if it was contradict with the 1945 Constitution. Chief Justice Mahfud stated “if that injustice occurred due to introduce of law the Court will step up to protect people’s right” (Budiarti, 2010).
A second plausible answer is that the Court’s institutional legitimacy has been firmly established through public support. Since the creation of the Court in 2003, the first generation of Constitutional Court Justices realized that they should turn to the people to win public support. The Court has conducted numerous activities, such as holding of town hall meetings, creating a media center, arranging study visits and publications, to inform the general public about its existence. Chief Justice Jimly Asshiddiqqie fully recognized the risk to the Court’s authority if nobody appeared before it. To minimize this risk, the initial appointees to the Court, implemented as strategy to broaden legal standing. The idea of widening the legal standing requirements, in early years, was to attract a number of cases to be filed in the Court. In the Electricity Case, the petitioners were public interest advocacy groups opposed to the privatization of the State Electric Company, which the petitioner claimed would increase electricity prices. The Court held that, “every citizen as a taxpayer has the constitutional right to question every law that is closely connected with economic policy that has implications for their welfare”. Success of this approach was the increase in the number of petitions filed to the Court. Since 2003, the number of petitions are increasing every year. In fact, a study conducted by Nardi (2012) pointed out that statistical evidence shows that the Court is more likely to rule a law unconstitutional where there are more non-governmental actors supporting the petition.
With regards to institutional capacity building, the Court has made significant contributions, such as a change in writing judgment style, allowing dissenting opinions, publishing decisions right after they are rendered, waiving petition’s fee, provision of court transcripts and the introduction of a civic education program. The Court also improved its media engagements, including the creation of a media centre, court TV and court radio. There is no day without news from the Court. The creation of institutional building and engagement with news media activities fulfills the public desire for a transparent state institution, which public does not have from the Indonesian Supreme Court, Parliament or other state institutions. The high public support helped the Court in deciding the cases that didn’t fall under its authority. As Vanberg (2005) pointed out if an elected official is challenged by the Court, the general public is more likely to stand with the Court, rather than with the politicians and the elected official is more likely to comply with the Court’s decision. For example, in Corruption Eradication Commission case filed by Bibit S Rianto and Chandra M. Hamzah, the Court declared that article 32 (1) C of Law Number 30 (2002) on Corruption Eradication Commission to be conditionally unconstitutional, unless it is understood that “dismissal of Corruption Eradication Commissioner could be conducted after sentenced by a Court decision that has legally binding.” The original meaning of article 32(1) C is “dismissal of Corruption Eradication Commission could be conducted if Commissioner became defendant of criminal charge”. This case became national phenomenon because Police arrested those two-respected Indonesia Eradication Corruption Commissioner and create chaos what it is called “lizard vs. crocodile” by referring Indonesia Corruption Eradication Commission as lizard. Few days later, Police released those two Commissioners.
The Indonesian Constitutional Court used the limited window that it had to drive political change and retain its legitimacy. Even though the Court was attacked, it continued to live with no consequences, and gained even more public support. The Court has been bold enough to take this momentum and become one of the most respected and trustworthy institutions in Indonesia.
 Decision Number 48/PUU-IX/2011 and 49/PUU-IX/2011.
 Decision Number 01-02-22/PUU-I/2003.
 Decision Number 133/PUU-VII/2009.