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Developments in Indonesian Constitutional Law: The Year 2015 in Review

[Editor’s Note: This is the eighth installment in our Year-in-Review series. We welcome similar reports from scholars around the world on their own jurisdictions for publication on I-CONnect. Earlier year-in-review reports have been published on Italy, the Slovak RepublicRomaniaBelgiumSweden, the Czech Republic and Lithuania. As we have done in the past, we extend our sincere thanks to our contributors for how much they have contributed to our learning and appreciation of public law around the world. Today we give great thanks to our contributors from Indonesia. –Richard Albert]

Stefanus Hendrianto, Boston College; and Fritz Siregar, Indonesia Jentera School of Law – ‎University of Indonesia

Introduction

On August 13, 2016, the Indonesian Constitutional Court celebrated its thirteenth year anniversary. This report offers an overview of the Indonesian Constitutional Court’s case law in the 2015/2016 term (a Term of the Constitutional Court begins in mid-August, and usually Court sessions continue until early August in the following year).

The last term also marked the Court’s first full term under the chairmanship of Arief Hidayat, who took over the helm of Chief Justice in January 2015. The 2011 Amendment to the Constitutional Court Law prescribes that the Chief Justice has a limited term of two and half years, which means that Arief Hidayat will be the Chief Justice until 2017.[1]

Most of the decisions of the Indonesian Constitutional Court have not been officially translated into English. This report aims to offer a quick overview of the Court’s decisions for comparative judicial scholars who are interested in the Indonesian Constitutional Court’s case law. The first section of the report reviews some notable statutory review cases from the last term. The second section reviews the Court’s decisions in Regional Elections Disputes. The primary focus of the report will be on the statutory review, in which it describes nine cases. We would classify the cases under four sections: judicial review of electoral laws, judicial review of marriage law, socio-economic rights, and administrative law related cases.

Part I: Statutory Review

In the last term, the Court received 58 applications for statutory review.[2] The Court decided to accept five cases on merits and granted four unconditionally constitutional decisions. The Court dismissed 31 cases on technical grounds and rejected 11 petitions on merits.

Judicial Review of Electoral Laws

This section addresses judicial review electoral process of Governor, Bupati (Regent) and Mayor, commonly known as “regional election head” (Pemilihan Kepala Daerah – Pilkada). The crux of the matter was that Indonesia did not run regional elections simultaneously before 2016. On average, over 100 direct regional elections have been run annually, with the Indonesian citizens voting in many separate ballots at different places and times. In his last year in office, President Susilo Bambang Yudhoyono tried to push an initiative to hold simultaneously regional elections. The initiative turned out to be a political crisis as the lame duck House manipulated the bill on regional election by scrapping entirely direct regional elections.[3] On October 2, 2014, two weeks before he left office, President Yudhoyono issued an emergency degree, which reinstated the direct regional elections and provided simultaneous regional elections every five years.[4] The Constitution requires an emergency decree to be approved by the House of Representative during its next session. On January 20, 2015, the House approved the emergency decree and subsequently, President Jokowi signed it into a Law.[5] But President Jokowi did not fully agree with the content of emergency decree that he inherited from his predecessor, and, therefore, his administration immediately proposed an amendment to the Law. On March 18, 2015, Jokowi signed the new Law, which amended the previous Law on Regional Elections.[6] Soon, the Law became the object of serious constitutional litigation in Indonesia.

  1. The Constitutional Court Decision No. 33/PUU-XIII/2015 (the Political Dynasty case)

One of the central concerns of the election of Governor, Bupati, and Mayor is the issue of a political dynasty. By 2013, there were at least 23 political dynasties at the provincial and district level (Kabupaten) throughout Indonesia that occupied various political offices such as governor, mayor, Regional Chief (Bupati), or the head of Regional Parliament. [7] Law No. 8 of 2015 on Regional Elections tried to address the political dynasty issue by prohibiting any candidate who has family ties with the incumbent. The Law stated that a candidate in a regional election must not have any conflict of interest to the incumbent (regional head).[8] The elucidation of the statute stated that “conflict of interest” meant that a candidate must not have any blood or marital ties to the incumbent governor, district head or mayor, or the respective Deputy positions unless the incumbent has passed non-consecutive terms limit (jeda satu Kali Jabatan).

The claimant, Adnan Purichta Ichsan, is a member of an influential political dynasty in South Sulawesi. He is the son of the incumbent of the Gowa district head, Ichsan Yasin Limpo, and a nephew of the incumbent governor, Syahrul Yasin Limpo. His grandfather was also a former Gowa district head. Moreover, the Limpo family also has brothers, sisters, sons, and in-laws in key posts in regional legislatures and the House of Representatives (DPR). Adnan Ichsan was considering running in the regional election in December 2015 to replace his father as Gowa district chief.  The claimant argues that the Law impinges on his constitutional rights, especially right to be free from discriminative treatment.

The Court accepted the claimant’s argument and ruled that the provision on political dynasties violates the constitutional rights of citizens to obtain equal opportunities in government.[9] Moreover, the Court ruled that the elucidation of the statute is not only discriminative but also created a new rule by adding a nonconsecutive terms clause.[10]  The Court ruled a nonconsecutive terms clause did not exist in the body of the statute, and, therefore, it cannot be a basis for further regulation on the regional election.

  1. The Constitutional Court Decision No. 42/PUU-XIII/2015 ( the Ex-Convict case)

Apart from the issue of political dynasties, the Court had also deal with the prohibition against former convicts and serious criminal offenders to run for public office. The Regional Election Law stated that no one who has been convicted of a crime, in which the minimum prescribed sentenced is five years may run for the post of governor, mayor or bupati.[11] The elucidation of the statute, however, provided that the prohibition does not apply to a former convict who has honestly and publicly acknowledged his conviction, and at least five years have passed since he completed his sentence. Furthermore, the prohibition does not apply to former political prisoners.[12]

The claimants are former convicts, and they intended to run as bupati in their respective regency. They retained a prominent constitutional lawyer and former Minister of Justice, Yusril Ihza Mahendra to challenge the Law before the Constitutional Court. Mahendra argued the prohibition for former convicts to run for public office is contrary to the equal protection clause of the Constitution.[13] Interestingly, Mahendra also argued that the prohibition is contrary to Article 28J (2) of the Constitution. Article 28J (2) is the General Limitations of Bill of Rights clause, which stipulates that “in the enjoyment of their rights and freedoms, each person is obliged to submit to the limits determined by law… and taking into consideration morality, religious values, security, and public order, in a democratic society.”  Mahendra argued that the prohibition for former convicts to run public office failed to meet the standard of Article 28J (2) as it could not be justified by any consideration of morality, religious values, security, and public order, in a democratic society.

In its judgment, the Court made reference to its previous decision in the Robertus case,[14] in which the Court held that there must be some exception to the prohibition of former convicts to hold public office. The first exception is that the candidates must honestly and publicly disclose the conviction for his/her crime. Secondly, the candidates must not be repeat offenders. Third, at least five years must have passed since the candidate completed his sentence. Finally, the candidates must not have had their right to be elected revoked by the Court that convicted them.[15]

Second, the Court acknowledges that Law No. 8 of 2015 has tried to accommodate the Court’s decision in the Robertus case. Nevertheless, the lawmaker did not adopt the Court’s decision in the body of the statute, but rather in the elucidation. The Court held that the key exception in the Robertus case is that former convicts must publicly and honestly acknowledge their status. If former convicts have publicly acknowledged their crimes, then the second and fourth exception won’t be necessary. Nevertheless, if former convicts fail to acknowledge their backgrounds and crimes, then the third exception shall be applied. Based on such reasoning, the Court held that “the provision is conditionally unconstitutional as long as it excluded any former convicts who have confessed publicly and honestly that they are former convicts.”[16] In other words, the provision should be interpreted to allow former convicts who have confessed publicly and honestly to run a public office.

  1. The Constitutional Court Decision No. 41/PUU-XII/2014 (the Civil Servant Neutrality case)

This case involved a constitutional challenge against Law No. 5 of 2014 on State Civil Administration (Undang – Undang tentang Aparatur Sipil Negara). The challenge was directly related to the Regional Election as the crux of the matter is whether civil servants who want to run for public office shall resign from their position. The State Administration Law provided that public civil servants who want to run as a candidate for the election of governor, bupati, mayor or its respective deputies must resign from their positions by the time they announced their candidacy.[17]

The prohibition must be understood from the historical context of Indonesian political history. Under the New Order military dictatorship, the election process was administered by civilian bureaucracy; from the Minister of Home Affairs on the top as the designated Head of Election Commission to the lowest level of a Voter Registration Committee (Panitia Pendaftaran Pemilih) in every village, chaired by the village head.[18] All of these administrative apparatuses have a strong allegiance to the then ruling party, Golkar, and they would take any means necessary to help Golkar secure victories. With the support of military and these administrative apparatuses, Golkar was able to maintain its winning streak for three decades.

After the fall of the military regime, several measures were taken to prevent civil servant allegiance to certain political parties because they were no longer required to vote for the government’s party. [19]  But if they were interested in participating in party activities, they could take a leave of absence without pay. The State Civil Administration Law took this further by requiring public civil servants to resign if they want to run for public office.

The claimants are eight public civil servants who argued that the Law has deprived their right to public office. The claimants argued that the prohibition was discriminatory and contrary to the equal protection clause of the Constitution, especially the right to obtain equal opportunities in government. Interestingly, the claimants made the bizarre argument that the Law was discriminatory because it does not require a lawyer, accountant, or medical doctor to resign from their position if they want to run a public office.[20]

The Court cited the following previous decisions. First, in the DPD Election case, the Court dealt with the issue whether a public civil servant must resign to run for the election of Regional Representative Council (Dewan Perwakilan Daerah – DPD).[21] In the DPD Election case, the Court held that the prohibition for a public servant to resign to join election of DPD is constitutional.[22] Furthermore, the Court also reaffirmed its position in the Letter of Resignation case, in which the Court held that it is necessary for a member of Armed Forces or Police Force to submit a letter of resignation if they want to run for public office. [23] Based on its two previous decisions, the Court held that a requirement for a public civil servant to resign to run for governor, bupati, mayor, or its respective deputies is not contrary to the Constitution.[24]

Nevertheless, the Court ruled that there is a concern over the timing of the resignation, as the Law prescribed that a public civil servant must resign by the time he or she registers as a candidate for governor, bupati, or mayor. The Court considered that a similar requirement does not apply to a public civil servant who wants to run for parliamentary election, both at the national and regional level. The Court then ruled that ideally public civil servants shall resign by the time they have secured a nomination as candidates for governor, bupati, or mayor instead of by the time they register their candidacy.[25] Finally, the Court held that the provision is conditionally unconstitutional as long as it requires public civil servants to resign by the time they register as a candidate instead of by the time they have secured a nomination for a candidate.[26] In other words, the provision must be interpreted that it requires public civil servants to resign after they have secured a nomination as a candidate.

Judicial Review of the Marriage Law

In the last term, the Court issued two important decisions about a constitutional review of Law No. 1 of 1974 on Marriage. The Law has been controversial since its enactment more than forty years ago.  Before the passing of the Law, marriage for the majority of the Muslim population in Indonesia was governed exclusively by the rules of Islamic law. The New Order military regime attempted to curb arbitrary divorce and polygamy by passing new rules on marriage that restricts a Muslim husband’s power unilaterally to repudiate his wife or to take a second wife and requiring the consent of the parties to marriage. [27]  Moreover, the regime tried to reduce child marriage by imposing a minimum marriage age of 18 for girls and 21 for boys. The bill immediately provoked strong opposition from Islamic political forces as they accused the bill of being against the Islamic doctrine on marriage.[28] In the end, the Government reached a compromise with the Islamic demands. Nevertheless, the legislatures did not entirely remove some provisions that were considered contrary to Islamic doctrine. Forty years later, the Law was still controversial. For Islamic forces, the Law is the legacy of the anti-Islamic doctrine, but the secular forces view the Law as not providing sufficient protection for women and children.

  1. The Constitutional Court Decision No. 30-74/PUU-XII/2014 (The Marriageable Age case)

One of the government’s compromises on the Marriage Law is lowering the marriageable age from 21 to 19 for men and from 18 to 16 for women. In the Marriageable Age case, a women’s group NGO challenged the constitutionality of the provision that provides that the minimum marriageable age for 16 years for women.[29] They argued that the provision discriminated against girls due to the different minimum age of marriage for boys. They sought an increase in the minimum marriageable age for women to 18 years, arguing that the current marriage age is also inconsistent with the statutory regulation on child protection, which defines a child as being a person below the age of 18 years.[30]

In a 8-1 decision, the Court decided to reject the claimants’ petition entirely. The Court began its judgment by citing its previous decision that dealt with the Marriage Law. In the Polygamy case,[31] the claimant objected the provisions in the Marriage Law that prevented him from engaging in polygamy. The claimant argued that the Marriage Law has deprived his freedom to worship as guaranteed by the Constitution (Article 29 § 2), as he believed that polygamy is a type of worship under Islamic doctrine. In the Polygamy case, the Court considered that polygamy was not the invention or creation of Islamic teaching as it had existed long before the Prophet Muhammad received the revelation. The Court believed that the Islamic teaching on polygamy aims to protect the dignity of women and to ensure that men would practice polygamy arbitrarily. [32]  The Court then moved to discuss the purpose and nature of marriage according to Islamic teaching, which is to achieve peaceful heart (sakinah), as a man and a woman in a marital relationship will have peace.[33]  According to the Court, a couple could achieve sakinah if they could maintain a loving relationship without hoping for anything in return, but only for their desire to make sacrifices to bring happiness to each other (mawaddah).[34] The Court concluded that Islamic law tries to achieve mawaddah by requiring that men seek permission from his wife before entering into another marriage.

Based on the Polygamy case, the Court concluded that marriage has intrinsic sacred religious value and that each religion has its rules on marriage.[35] For instance, Islamic Law does not set any age limit for marriage, the only requirement from Islamic Law perspective is that the couple has reached maturity (akil baligh) and is capable of distinguishing between good and evil. The Court ruled that it would not intervene into the religious domain on the requirement of marriage, especially on the age limit.[36]

Moreover, the Court ruled that there was no guarantee that with increasing the age from 16 to 18 there will be a reduction of divorce rates, health improvements, and other social problems.[37] The Court ruled that those social problems were not simply caused by a lower age limit of marriage but rather by different factors. Even if the claimant’s assertion was correct, the Court ruled that it is not a domain of the judiciary to increase the age limit of marriage, but rather it is the domain of the legislative to increase the age limit for marriage. [38]

  1. The Constitutional Court Decision No. 68/PUU-XII/2014 (the Interfaith Marriage case)

As mentioned earlier, the bill of Marriage Law, which was introduced in 1973, caused significant controversy.  In particular, Muslim criticism was directed at the Law’s acceptance of interreligious marriages. The bill stated, “Any differences of nationality, ethnicity, citizenship, place of origin, religion/belief system, shall not become an obstacle for marriage.”[39] As a result of the strong opposition and potential for serious unrest, the government agreed to drop the provision that would have specifically allowed for interreligious marriages.

The second controversial provision was on the legitimacy of marriage. The Law stated, “ marriage is legitimate if it has been performed in front of the civil registrar; registered by the civil registrar who witnesses the marriage; and performed according to the Law and /or rules of marriage that adhered by parties concerned, as long as it does not contrary to the Law.”[40] For the Islamic forces, this provision meant marriage would be governed simply by civil law and religion would be excluded entirely from governing marriage.  Moreover, this provision opens a door for interreligious marriage; any interreligious marriage would be legitimate as long as it was performed and registered by a civil registrar.  After a heated debate in the Parliament, the government agreed to compromise and adopted a new provision, which states that a “marriage is legitimate if it has been performed according to the laws of the respective religions and beliefs of the parties concerned.”[41] The Law further states that “every marriage must be registered according to the regulations of the existing regulation.”[42]

Some people believe that these provisions have closed the door for interreligious marriage because for a marriage to be lawful, a recognized religion must conduct the marriage ceremony. In most cases, at least one of the parties will adhere to a religion that does not allow a person to marry someone of a different faith.  Furthermore, a marriage must be registered and a Muslim marriage must be registered with the local Office of Religious Affairs, which would refuse to register an interfaith marriage.[43]

In the Interfaith Marriage case, three lawyers and a law student challenged the provision on the legality of marriage and argued that the provision prevents couples with different religions from registering their marriage. The claimants came to the Court as concerned citizens, and they posited that there is a high probability that they might engage in interreligious marriage.[44]  The claimants argued that there are many couples with different faith background that could not register their marriages. Consequently, they try to bend the Law in many different ways such as planning to marry in a foreign country, subjecting themselves under the religious rule of one party, or changing their religion temporarily before the marriage.  They challenged the provision on the basis that it is inconsistent with several constitutional provisions, primarily the right to form a family and to procreate based upon lawful marriage.[45] Furthermore, the claimants argued that the Marriage Law violates the constitutional guarantee of religious freedom because the Law allows the state to interfere into a religious realm in determining the legitimacy of marriage.[46]

The Court unanimously rejected the claimants’ petition, but it did not provide a lengthy explanation to justify its decision. The Court ruled that although the Constitution guarantees a right to marry and to procreate, there is nevertheless a general limitation of the bill of rights clause (Article 28J § 2) that allows the state to limit such a right based upon consideration of religious values.[47] Furthermore, the Court held that the Marriage Law did not violate the Constitution, as marriage includes “spiritual and social” aspects, not just formal aspects, and, thus, the state must provide administrative legality for nuptials validly performed according to religion.[48]

Socio-Economic Rights

The Indonesian Constitutional Court did not have robust bodies of jurisprudence on socio-economic rights like the Courts in South America and South Africa. Nevertheless, the Court dealt a lot with socio-economic issues, especially during its infancy period. In the last term, the Court decided two major cases that related to socio-economic rights.

  1. The Constitutional Court Decision No. 95/PUU-XII/2014 (the P3H case)

The Petitioners challenged the constitutionality of Law Number 18 Year 2013 on the Prevention and Eradication of Forest Destruction Law (Pencegahan dan Pemberantasan Perusakan Hutan – P3H) and Law Number 41 Year 1999 on Forestry. The Petitioners consist of the representative chieftains, indigenous community leaders, farmers and non-governmental organizations that work in preventing corruption and forest destruction in Indonesia. The Petitioners challenged the constitutionality of the entire article of Law Number 18 Year 2013 and seek the Court to annul the Law as a whole. Also, the Petitioners challenged the constitutionality of five articles in Law Number 41 Year 1999. The Court held:

Therefore, there will be a paradox if, on the one hand, we recognize the people who lived for generations in the forest and in need of forest products but on the other hand, the community threatened with criminal sanction. Instead, the state had to be present to provide protection to such communities.[49]

The Court declared that Article 50 (3) of the Forestry Law, which provided a criminal sanction for whoever utilizes the forest areas without a permit from the Government, is conditionally unconstitutional as long as it applied to indigenous people who have been living in the forests for generations and have no commercial purposes.[50]

This case was filed on September 10, 2014, during the chairmanship of Hamdan Zoelva; but the Court rendered the decision on December 10, 2015, under the chairmanship of Arief Hidayat. In our observation, Chief Justice Arief Hidayat did not participate in justice deliberation. The decision was signed by only eight justices, who did not include Chief Justice Arief Hidayat, even though Hidayat participated in the examinations hearing. There was no official explanation on why the Chief Justice was absent from the deliberation meeting.

  1. The Constitutional Court Decision No. 61/PUU-XIII/2015 (the Migrant Worker case)

Every year, many Indonesians flock abroad dreaming of opportunity – to places such as Saudi Arabia, Kuwait, Hong Kong and Singapore. In fact, Indonesia is one of the biggest providers of overseas migrant workers. The Petitioners were former migrant workers who have worked in Saudi Arabia. Nevertheless, they could not re-apply to work there because the Indonesian Government imposed a moratorium on 21 countries in the Middle East since 2009.

To protect Indonesians that work overseas, Indonesia does not send migrant workers to countries that are in a war zone, affected by a natural disaster or deadly disease. Also, the Indonesian government only sends migrant workers to friendly countries, which are those countries that have already established a diplomatic channel with Indonesia. This rule, however, does not apply to Taiwan, with whom Indonesia does not have diplomatic relations. For some unknown reason, Taiwan is not a country in the moratorium list of the Indonesian government.

The Petitioner argued this moratorium contradicts the International Convention for the Protection of the Rights of All Migrants Workers and Members of Their Families, which Indonesia has ratified.[51] The Petitioners argued that this restriction contradicts the principle of equality before the law, the right to get decent life (Article 27), and the right to get fair treatment (Article 28I (2)).

The Court rejected the Petitioner’s argument and held that the introduction of a moratorium aims to protect Indonesian overseas workers. Further, the Court held that due to security reasons, the Government has authority to stop sending Indonesian workers to a country in conflict areas.[52]

Administrative Law Related Cases

  1. The Constitutional Court Decision No. 43/PUU-XIII/2015 (the IKAHI case)

This case dealt with the scope and authority of Judicial Commission in selecting the district court judges, administrative judges, and religious courts. The petitioners were Five Supreme Court Justices and Supreme Court’s administrative clerk (Panitera). They came to the Court in their capacity as the member of the Central Committee (Pengurus Pusat) of Indonesian Judges Association (Ikatan Asosiasi Hakim Indonesia – IKAHI). They argued that the authority of the Judicial Commission to select lower judges is contrary to the Constitution. The petitioner made a reference to Article 24C of the Constitution which provides, “there shall be an independent Judicial Commission which shall possess the authority to propose candidates for appointment as justices of the Supreme Court and shall possess further authority to maintain and ensure the honor, dignity, and behavior of judges.” The petitioners argued that the term “possess further authority,” does not include the selection of judges of a general court, religious court, or administrative Court.[53]

The conflict between the Supreme Court and Judicial Commission dated back in 2006. In the Judicial Commission I case,[54] 20 Supreme Court Justices filed a judicial review to challenge the authority of the Judicial Commission to supervise the ethical conduct of Supreme Court Justices. The Court ruled that the Judicial Commission has the authority to supervise the ethical conduct of the Supreme Court, but the object of supervision remained unclear.[55] The Court concluded that lack of clarity on the Commission’s supervisory authority had created unintended consequences, including that the Judicial Commission and the Supreme Court each came out with their own interpretation.[56] Finally, the Court held that all provisions in the Judicial Commission Law that relate to its supervisory role should be declared unconstitutional.[57]

In a decade after issuing the Judicial Commission I case, the conflict between the Supreme Court and the Judicial Commission resurfaced, [58] which led the five Supreme Court Justices to file a challenge in the Constitutional Court. After long deliberation, the Constitutional Court accepted the claimant’s argument and ruled that the authority of the Judicial Commission in the recruiting process of district court judges, religious court judges, and administrative court judges is unconstitutional.[59] The Court made reference to the debate over the constitutional amendment, in which the drafter intended to establish a Judicial Commission to participate in the selection of Supreme Court only.[60]

The Court, however, only relied on the testimonies of some politicians who were involved in the amendment process, but it did not seem to bother to check the minutes of the debate during the amendment process.  Based on those testimonies, the Court believed that the idea to have a Judicial Commission as an authority to select judges from the lower court was voted down during the constitutional amendment debate.[61] The Court pushed their interpretation on it by stating that “such notion (the authority to select lower court judges) had been discussed and rejected by the People Consultative Assembly to become a norm in the Constitution, and, therefore, the Court shall not entertain the idea unless there is a new constitutional amendment.”[62]

Furthermore, the Court made reference to the judicial reform process that took place after the fall of the military government, in which the responsibility of the Court management was transferred from the Executive (Ministry of Justice) to the Supreme Court, thus establishing a “one roof system.” The Court finally held that the “one roof system” implied that the Supreme Court has authority to select and recruit lower court judges, although the Constitution does not explicitly mention that the Supreme Court possesses such authority.[63]

  1. The Constitutional Court Decision No. 76/PUU-XII/2014 (the Parliamentary Immunity case)

The petitioners were a private attorney and an NGO, the Association of Society of Criminal Justice Reform (Perkumpulan Masyarakat Pembaharuan Peradilan Pidana). They challenged the MD3 Law, [64] which granted immunity to Members of Parliament. The Petitioners challenge the constitutionality of the provision, which specifies that “the investigation over members of parliament, who were suspected to be involved in criminal wrongdoing, shall obtain written consent from Parliament Ethic Council.”[65]

In the last decade, Indonesians have witnessed larger patterns of members of national parliament being arrested for corruption during their term in office. The Anti-Corruption Commission reported that since its inception in 2002, the Commission had detained 119 Members of National Parliament.[66] In response to this phenomenon, the DPR (House of Representatives) decided to add an extra layer of immunity to Members of Parliament. The Police or Anti-Corruption Commission must obtain written consent from the Parliament Ethics Council before they could open a criminal investigation on Member of Parliaments.

First, on the standing issue, the Court ruled that the private practitioner had no standing to challenge the Law.[67]  Nevertheless, the Court granted standing to the NGO based on their experience in conducting legal reform in criminal law in Indonesia. The Court ruled that it has standing as a public interest advocacy group.[68]

On the merit of the case, the Court considered that the members of the Parliamentary Ethic Councils have a conflict of interest in issuing a written consent because they are also Members of Parliament.  The Court ruled that if there is a need to start a criminal investigation against a Member of Parliament, the written consent should be issued by the President as the Head of State instead of the Parliament Ethics Council.[69]

The Court finished its deliberation meeting on November 20, 2014, under the chairmanship of Hamdan Zoelva. Surprisingly, it took almost a year for the Court to announce its decision on September 22, 2015, which was already under the chairmanship of Arief Hidayat.

10. Regional Election Cases (Pilkada cases)

In the last term, the Court’s docket was flooded with 151 cases of Regional Election Disputes (Pemilihan Kepala Daerah – “Pilkada”). Out of the 151 Pilkada cases, the Court only granted five favorable decisions; rejected three cases on the merit, and dismissed 137 cases on technical grounds. 26 cases were withdrawn from the Court.

The authority to review regional election disputes is one of the most unsettling issues in Indonesian constitutional history. The Constitution is vague on the issue but the 2004 Regional Government Law assigned the Supreme Court to handle the regional election dispute.[70]  The Constitutional Court under the chairmanship of Jimly Asshiddiqie, however, ruled that there should be one forum to settle general elections, which include regional election dispute. [71] In 2008, the Parliament and the President agreed to pass the Law that transferred the authority to handle general election dispute to the Constitutional Court.[72] The Constitutional Court then took over the jurisdiction to handle regional election dispute from the Supreme Court.

The combination of the huge backlog of regional election disputes and the series of corruption scandals that arose from these disputes pushed the Court to assess its jurisdiction over regional election disputes. In 2014, the Court under the chairmanship of Hamdan Zoelva decided to strip the Court’s jurisdiction to review Pilkada dispute in the Regional Election Dispute case. [73]  The Court’s majority held that the drafters of the Constitution never intended to include the election of the Governor and the Head of the District (Bupati) within the textual phrase “general election.”[74] The Court ruled that the drafters only intended to include the presidential election and the legislative election, including the election of members of the national and regional parliament. The Court thus held that regional election disputes are not within the scope of its authority.[75]

In less than a year after the Court stripped out the Regional Election Dispute from its docket, President Joko Widodo signed a new Law, which stated that a special tribunal should handle the regional election dispute.[76] The Law further states that the special tribunal shall be established before the simultaneous regional elections take place across the country.[77] But the Law provides a transitional clause, in which the Constitutional Court shall handle the regional election dispute before the establishment of the special tribunal.[78]

President Jokowi signed the Law on March 8, 2015, and the General Election Commission decided to launch the first stage of the simultaneously regional election on December 9, 2015. Nevertheless, when the Regional Elections took place on December 9, 2015, the special tribunal had not been established. Moreover, the Law did not specify who has the mandate to establish the special tribunal and when is the deadline to establish the special tribunal. Consequently, the Constitutional Court has no other choice but to settle Regional Election disputes that arose after December 9, 2015. At this time, it is not clear when the special tribunal will be established. In the meantime, the General Election Commission has laid out a plan to hold a simultaneous general election in February 2017 and June 2018. Apparently, the Court will continue to handle the regional election disputes indefinitely.

What the Future Holds

Having reviewed some major decisions of the Indonesian Constitutional Court in 2015, it is worth looking at what the future holds for Indonesian constitutional law. First, in the last term, the Court began to cite precedents more often than the previous courts. After thirteen years of operation, the Court has established a sufficient body of jurisprudence as the basis of precedents.  It is interesting to see how the role of precedents may evolve in the Court’s jurisprudence in the future. In civil law jurisdictions like Indonesia, judges do not adopt a stare decisis principle in adjudication. Precedents usually serve as a persuasive role. Civil law courts are expected to take past decisions into account when there is a sufficient level of consistency in case law. Although the Constitutional Court began to rely more on precedents, this practice is still characterized by inconsistency; in many instances, the Court tends to ignore precedents.

In the recent years, some scholars have tried to explain the development of the Indonesian Constitutional Court in the context of the success of democratic consolidation. This explanation is based on the assumption that the first generation Court was an agent of democratization, or a Court with a mission to improve the functioning of the democratic system.  After the state has achieved some success in consolidating democracy, the second generation Court could intervene less frequently in the advancement of democratization. The Court’s decisions in the last term, however, suggest that there is still a large gap to be filled by the second generation Court. For instance, the Court continues to deal with many complex cases that involve the judicial review of the regional electoral process.  Thus, the connection between the first generation Court and democratic consolidation appears to be quite loose in reality. The democratic consolidation process is almost never encompassed in one event—and in the case of Indonesia, it may span decades in the form of power struggles and political consolidation processes.  Consequently, the Court still has to fill a lot of gaps in the democratic process in the future.

Obviously, the Court under the chairmanship of Arief Hidayat is much less bold compared to the Court under the chairmanship of the first two Chief Justices: Jimly Asshiddiqie and Muhammad Mahfud. Both Asshiddiqie and Mahfud were known for their bold and ambitious approach to constitutional interpretation. Although their leadership styles are different, they both were willing to go toe to toe with the Executive and the Legislative branches. The Court under the leadership of Arief Hidayat, however, tends to play it safe against its counterparts. Moreover, some of the Court’s decisions could be considered as conservative. For instance, the Court struck down the prohibition of political dynasties, and it moved to cripple the Judicial Commission.  Bold and ambitious judges like Asshiddiqie and Mahfud are rare breeds and it is less likely that the Court will be staffed with towering figures like them in the future. Thus, the challenge is how the Court could sustain a commitment to liberal constitutionalism with the help of non-ambitious judges.

Suggested Citation: Stefanus Hendrianto & Fritz Siregar, Developments in Indonesian Constitutional Law: The Year 2015 in Review, Int’l J. Const. L. Blog, Nov. 25, 2016, at: http://www.iconnectblog.com/2016/11/developments-in-indonesian-constitutional-law-the-year-2015-in-review


[1] Law No. 8 of 2011 on the Amendment of the Constitutional Court Law, Art. 4 (3)

[2] The Court’s docket of statutory review is relatively low in the last term, but if we count the case from beginning of the year 2015 up to mid-August 2016, there were 133 cases.

[3] Law No. 22 of 2014 on Regional Elections

[4] Government Regulation in Lieu of Law No. 1 of 2014.

[5] Law No. 1 of 2015 on the Promulgation of Government Regulation in Lieu of Law Number 1 0f 2014 on the Election of Governors, Regents and Mayor into a Law

[6] Law No. 8 of 2015 on the Amendment of Law No. 1 of 2005.

[7] See Yoes Chandra Kenawas, The Rise of Political Dynasties in Decentralized Indonesia, unpublished  Master Thesis, Rajaratnam School of International Studies, 2013

[8] Law No. 8 of 2015 on the Amendment of Regional Election Law, Art. 7R

[9] The Political Dynasty case, paragraph 3.16.3

[10] Id., paragraph 3.16.5

[11] Law No. 8 of 2015 on the Amendment of Regional Election Law, Article 7g

[12] Id. the elucidation of article 7g

[13] See the 1945 Constitution of the Republic of Indonesia, Article 27 (1)

[14] The Constitutional Court Decision No. 4/PUU-VII/2009 (the Robertus case)

[15] Id. Paragraph 4.4

[16] The Ex-Convict case, Paragraph 3.11.17

[17] Law No. 5 of 2014 on State Civil Administration, Art. 119

[18] See Afan Gaffar, Javanese Voters: A Case Study of Election under a Hegemonic Party System. (Yogyakarta, Indonesia: Gadjah Mada University Press, 1992), 67 – 68

[19] See John Bresnan, Indonesia: The Great Transition, (Lanham, Md: Rowman & Littlefield Publishers, 2005). 161

[20] The Civil Servant Neutrality case, page 11

[21] The Constitutional Court Decision No. 45/PUU-VIII/2010 (the DPD election case)

[22] Id. Paragraph 3.15

[23] The Constitutional Court Decision No. 67/PUU-X/2012 (the Letter of Resignation case)

[24] The Civil Servant Neutrality case, Paragraph 3.14

[25] Id. Paragraph 3.16

[26] Id. at 34

[27] Mark Cammack, Lawrence Young, and Tim B. Heaton, “Legislating Social Change in an Islamic Society Indonesia’s Marriage Law,” 44 American Journal of Comparative Law 1 (1996).

[28] Parliament reached a compromise with the orthodox demands, wherein all provisions contrary to Islamic doctrine were removed.

[29] Law No. 1 of 1974 on Marriage, Article 7 (1)

[30] Law No. 23 of 2002 on Juvenile Protection

[31] The Constitutional Court Decision No. 12/PUU-V/2007 (the Polygamy case)

[32] Id. Paragraph 3.15.1

[33] Id. Paragraph 3.15.2

[34] Id.

[35] The Marriageable Age case, Paragraph 3.13.1

[36] Id. Paragraph 3.13.2

[37] Id.

[38] Id.

[39] See the 1973 Bill on Marriage Law, Art. 11 (2)

[40] Id. Art 2 (1)

[41] Law No. 1 of 1974 on Marriage, Art 2(1)

[42] Id. Art 2(2)

[43] In terms of official recognition of inter-religious marriages, in 1983 a Presidential Decision instructed the Civil Registry to refuse to formalize marriages involving Muslims and in 1984 the Ministry of Religion issued guidance to marriage registry officials at the Office of Religious Affairs stating they could only register marriages between Muslims.

[44] The Interfaith Marriage case, at 9

[45] The 1945 Indonesian Constitution, Art. 28B (1)

[46] The Interfaith Marriage case. at 16

[47] Ibid. Paragraph 3.12.3.

[48] Ibid. Paragraph 3.12.5.

[49] The P3H case, Paragraph 3.10.7

[50] Id. paragraph 5.1.1 (page 185)

[51] Law Number 6 Year 2012 on the Ratification of the International Convention for the Protection of the Rights of All Migrants Workers and Members of Their Families

[52] The Migrant Workers case, Paragraph 3.10.2.

[53] The IKAHI case, paragraph 3.2

[54]  The Constitutional Court decision no. 005/PUU-IV/2006 (hereinafter the Judicial Commission case)

[55] Ibid. 187

[56] Ibid. 193

[57] Ibid. 201

[58] The recent manifestation of the conflict appeared in the Sarpan case. Sarpan is an infamous District Court Judge of Central Jakarta, who issued a pre-trial decision, in which he dismissed the charge against a corrupt high ranking police officer, Budi Gunawan. The Judicial Commission challenged Sarpan’s decision and summoned him to appear at Judicial Commission. Sarpan refused to comply and launched a counter attack by filing a police report on defamation charge against two commissioner of the Judicial Commission.

[59] The IKAHI case, paragraph 3.12

[60] Id. paragraph 3.8.4

[61] Id. paragraph 3.8.5

[62] Id. paragraph 3.8.5

[63] Id. paragraph 3.10

[64] Law No.17of 2014 on Majelis Permusyawaratan Rakyat, Dewan Perwakilan Rakyat, Dewan Perwakilan Daerah dan Dewan Perwakilan Rakyat Daerah – People Consultative Assembly, People Representative Council and Regional Representative Council and Regional People Representative Council ( commonly known as “MD3 Law”).

[65] Id. Art. 224 (5)

[66] “Ketua KPK: Sudah 119 Anggota Dewan, 15 Gubernur Yang Ditangkap, Kita Sudahi Ini…(the KPK Chief: We have arrested 119 MP, 15 Governors, Let’s finish it…” – KOMPAS.com. September 5, 2016. Accessed November 10, 2016. http://nasional.kompas.com/read/2016/09/05/17561821/ketua.kpk.sudah.119.anggota.dewan.15.gubernur.yang.ditangkap.kita.sudahi.ini.

[67] The Parliamentary Immunity case, Paragraph 3.6

[68] Id. Paragraph 3.7

[69] Id. Paragraph 3.18

[70] Law No. 32 of 2004, art 106 (4)

[71] The Constitutional Court Decision No. 72-73/PUU-II/2004

[72] Law No. 12 of 2008 on the Amendment of the Regional Governance Law, Art.236C

[73] The Constitutional Court Decision Number 97/PUU-XI/2013 (the Regional Election case)

[74] Id. paragraph 3.2.15

[75] Id.

[76] Law No. 8 of 2015 on the Amendment of Regional Election Law, Art. 157 (1)

[77] Id. Art. 157 (2)

[78] Id. Art. 157 (3)

 

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Published on November 25, 2016
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