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Developments in Indonesian Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Indonesian constitutional law, which appears in the larger 44-country 2016 Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.


–Stefanus Hendrianto* and Fritz Siregar**

 I. Introduction

The Indonesia Constitutional Court is at a critical point in history as President Joko “Jokowi” Widodo has consolidated his power. When President Jokowi came to power in 2014, he faced an opposition majority in the legislature bent on obstructing him.[1] In the middle of 2016, however, Jokowi has consolidated his power in the arenas of elite contestation.[2] Jokowi’s coalition now holds some 67 percent of parliamentary seats after he successfully made some political maneuvers to convince two principal opposition parties to switch allegiance.

With a parliamentary majority, the Jokowi administration has entered into the arena of an “uncontested” presidency.[3] Some constitutional stakeholders have been hoping the Court would play a critical role to balance the power of the presidency. But the Court has gone through periods of transition from the interventionist court to a now seemingly constrained and tamed court.[4] Under the chairmanship of Arief Hidayat, the Court has retreated from the boldness of the first-generation Court. In the period after the first decade of the Constitutional, it became common to refer to the Indonesian Constitutional Court as composed only of “second-rate judges.” These “second-rate judges” had the effect of reducing the impact of the Court’s jurisprudence.

II. The Constitution and the Court

The Indonesian 1945 Constitution divided the judiciary into the Supreme Court and the Constitutional Court as two separate institutions. The Constitution maintains the Supreme Court has the authority to review ordinances and regulations made under any statutes. But the Constitution also equips the Constitutional Court with authority to conduct reviews of statutory legislation. This arrangement means that the right of judicial review is not uniformly given to a single Court; the Supreme Court and the Constitutional Court each share different judicial review authority.

The Indonesian Constitutional Court is a specialized court that has the final word on constitutional issues. The Court has the power to review laws for their constitutionality in the absence of a concrete dispute.[5] The Constitutional Court Law also allows an individual to request a review.[6] If a law is found unconstitutional, the Court will either nullify the law or order the parliament or the executive to make amendments. In addition to the authority over statutory review, the Constitution also equips the Court with the authority to resolve disputes over the power of state institutions; to decide the legality of the dissolution of a political party; to resolve disputes over the results of general elections; and, to review a motion for impeachment of the President.[7]

The Court has nine justices that have equal authority to decide all the important decisions. The Constitution provides equal appointment power among the three branches of government:  three justices are appointed by the President, three appointed by the People Representative Council (Dewan Perwakilan Rakyat, hereinafter the “DPR”) and three appointed by the Supreme Court.[8] There is a term limit imposed in which the justices only serve for five years but can be re-appointed for another five years. Also, there is a mandatory age limit in which the justices retire at age 70. The Chief Justice and Deputy Chief Justice, however, only serve for a term of two years and six months but can be re-elected for the second term.[9] The associate justices will elect the chief justice and his deputy through an internal election mechanism.

III. Constitutional Controversies

 As explained earlier, most judges of the current Court are “second-rate judges.” Two major controversies have supported this view in the 2016 term. The first controversy was in a series of litigation in the Tax Amnesty case. The tax amnesty policy is the pet project of President Jokowi, and aims to improve tax compliance in Indonesia.

In July 2016, some NGOs challenged the constitutionality of the Tax Amnesty Law before the Court. In response to this legal challenge, the Jokowi administration moved immediately to “pressure” the Court. After the hearing process of the judicial review of the Tax Amnesty Law had begun, President Jokowi “summoned” Chief Justice Arief Hidayat to the Presidential Palace. Chief Justice Arief Hidayat denied that the meeting was to discuss the tax amnesty cases.[10] According to Hidayat, his visit was intended for an audience and conveyed a report to the President about the international symposium on the Asian Constitutional Court.  Regardless of the nature of the meeting, obviously the Chief Justice did not make a wise decision by attending a meeting with the President while there was pending litigation in the Court against the President.

The second controversy was the arrest of Associate Justice Patrialis Akbar. On January 25, 2017, in another major blow to the reputation of the Constitutional Court,[11] the Anti-Corruption Commission arrested Patrialis Akbar as he had allegedly received bribes of US$20,000 (RP 266 million) from a prominent beef importing businessman. The businessman, Basuki Hariman, has admitted giving US$20,000 to an aide of Justice Patrialis Akbar, in which the assistant assured Hariman that Patrialis Akbar would help to sway the judicial review of the Animal and Husbandry Law II case for beef importers.[12] Indeed, Patrialis Akbar is the exemplar of a “second-rate judge.” His appointment was quite problematic from the beginning, mostly because of his poor record as the Minister of Justice.[13] During his four-year tenure as an associate justice, Akbar did not show any stellar performance either, and he ended his career as a criminal.

IV. Major Cases

  1. The Animal Health and Husbandry Law II case (Decision No. 129/PUU-XIII/2015)

As explained earlier, this case brought down constitutional justice Patrialis Akbar, in which he allegedly accepted US$200.000 from Basuki Hariman, a major player in the beef import business. It was suspected that the bribes were given as an attempt to influence Court decision in the judicial review of the statutory regulation that governs the beef import industry.

This case is the sequel of the Animal Health and Husbandry Law I case.[14] On August 25, 2010, the Court under the chairmanship of Mohammad Mahfud issued a decision on the judicial review of Law No. 18 of 2009 on Animal Health and Husbandry. The crux of the matter is the Law allowed import of beef and cattle from disease-free zones, regardless of the disease status in the country as a whole. The Court declared that the phrase, “a zone within a country” in art 59(2) of the Law was unconstitutional. The Court considered that the import of live animals from “a country or a zone within a country” is the manifestation of imprudent and dangerous policy because the disease may spread into the area from unsafe parts of the country.

In 2014, the government enacted Law No. 41 of 2014, which reinstated the provision that allows animals imported to Indonesia to come from a country or a zone within a country that already fulfills the health standard. The petitioner challenged the constitutionality of the Law and argued that the zone system would violate the constitutional rights of farmers, traders in livestock, veterinarians, and consumers of animal products.

The Court considered that after the issuance of the Animal and Husbandry Law I case, the Parliament had revised the zone system requirement. Thus, the Court opined that there is a difference between the object of norms that have been reviewed in the first case and the second instance. The Court decided that Law No. 41 of 2014 is “conditionally unconstitutional”; that the implementation of a zone system is allowed when there is urgent domestic demand in which the Government needs to import from other countries.

The Court reached the decision unanimously, and Justice Patrialis Akbar casted out his vote for the final deliberation meeting on November 21, 2016. The Court, however, did not announce the decision until February 7, 2017. It was not clear how much influence Akbar had to sway the Court’s decision. The fact of the matter is nine Justices made the ruling and Akbar only had one vote. Regardless of what happened behind the scenes, the arrest of Patrialis Akbar has tainted the legitimacy of the Court’s decision in this case.

  1. The Abdullah Puteh case (Decision No. 51/PUU-XIV/2016) 

In the last term, the Court decided two major cases related to the electoral process. In the first instance, the Court allowed Abdullah Puteh, who has been sentenced to 10 years imprisonment, to participate in the 2017 Aceh Province Governor Election.

During his first term as the Governor of Aceh Province, Puteh was charged with corruption concerning the purchase of two MI-2 helicopters for Aceh Province.[15] In 2004, Puteh began serving his ten-year sentence. But later, Puteh was out on parole before the full sentence was served. Having stayed in the political wilderness for more than a decade, Puteh was planning a comeback with a run in the 2017 Aceh Governor Election. Nevertheless, Article 67 (2) (g) of Law No. 11 of 2006 on Aceh Governance prohibited candidates for governor/deputy governor who had been sentenced for a crime punishable by a term of imprisonment of at least five years, except for treason or political crimes that have been granted amnesty. Puteh then challenged the constitutionality of the Aceh Governance Law to the Court.

The Court granted a decision for the claimant. The Court held that Article 67 (2) (g) of Law No. 11 of 2006 concerning Aceh Government is “conditionally unconstitutional” as long as it does not provide an exception for former convicts who openly and honestly inform the public that he or she is an ex-convict. The Court ruling means that Puteh can participate in the 2017 Aceh Governor Election as long as he notifies the public that he was an ex-convict.

  1. The Voting Rights for Mentally Disabled Persons case (Decision No. 135/PUU-XIII/2015) 

In the second major case that related to the electoral process, the Court dealt with the issue of voting rights for mentally disabled persons. Law No. 8 of 2015 on the Election of Governor, Head of Regency, and Mayor stipulates that mentally disabled or disordered persons have no right to vote (Art 57 §3a).

Some NGOs representing mentally disabled persons challenged the law and argued that the prohibition violates the constitutional rights of mentally disabled persons to participate in the general election. They argue that there are different categories of mentally disabled or disordered individuals and each category has its definition, which does not always lead to incapacity to cast a vote.

The Court ruled that indeed there is a distinction between mentally disabled and mentally disordered persons. Nevertheless, the Law did not explain how to assess the distinction between mentally disabled or disordered persons. The Court considered that the General Election Commission is not equipped to evaluate the capacity of mentally disabled or disordered persons as potential voters. The Court held that not all individuals who are experiencing mental disorders or memory disorders would lose the ability to cast a vote. Moreover, the Court considered that the absence of guidelines and institutions for psychiatric analysis of the potential voters is a violation of constitutional rights. The Court finally held that Article 57 (3) (a) is unconstitutional unless it was interpreted in the Court’s understanding that mentally disordered is not defined as permanent impairment of mental health, which removes the ability for someone to cast a vote.

  1. The Electricity III case (Decision No. 111/PUU-XIII/2015)

The case was filed by the Head of State Electricity Workers Union (Serikat Pekerja PLN) and an employee of the State Electricity Company (Perusahaan Listrik Negara – PLN). The claimants contested the constitutionality of Law No. 30 of 2009 on Electricity by arguing that electricity is part of the common good, and therefore it should be controlled by the state instead of private sectors.

This is the third case in which the Court had to deal with the privatization of the electricity industry. The Court had defined the role of the state in providing electricity through previous two cases. In the Electricity I case, the Court stated that the control over the electricity industry is essential for the common good.[16] The Court then reaffirmed the authority of the State Electricity Company (PLN) to control the electricity industry in the Electricity II case.[17]

In the Electricity I case, the Court, under the chairmanship of Jimly Asshiddiqie, declared the entire Law Number 20 of 2002 on Electricity to be unconstitutional. In 2009, however, the government enacted a new electricity law which resurrected the privatization of policy. Under the 2009 Electricity Law, the State Electricity Company no longer has a monopoly in supplying electricity to end-users, and it opens up for Independent Power Producers (IPPs) for involvement in providing electricity.

In the third case, however, the Court considered that the 2009 Electricity Law did not explicitly rule that the involvement of private enterprises eliminated state control over the electricity industry. Therefore, the Court declared that the provision is “conditionally unconstitutional” if it is construed that the involvement of private enterprises will eliminate the principle of “state-controlled” in an important sector of industry such as electricity. This decision does not change the landscape of the electricity industry in Indonesia. The Court reaffirmed the role of the state in controlling and providing electricity to the entire people, but at the same time it did not concur with the petitioner’s argument to eliminate the involvement of private enterprises.

  1. The Tax Amnesty Law I case (Decision No. 57/PUU-XIV/2016)[18]

This case involved a challenge against the pet project of President Jokowi: the Tax Amnesty Law.[19] The claimant is an NGO called the Indonesian People’s Struggle Union (Serikat Perjuangan Rakyat Indonesia). The petitioner argued that the Tax Amnesty Law is discriminatory because the tax evaders are being rewarded for their tax crimes while the honest taxpayers that have been fulfilling their tax obligations did not receive any appreciation from the government.  The claimant further argued that the tax amnesty program could undermine the criminal justice system in Indonesia as the Law prevents the Tax Authority, the Attorney General’s Office, and the Anti-Corruption Commission to use all the data from the tax amnesty program as evidence for criminal investigation.

The Court unanimously rejected the petition. The Court argued all the data that were submitted to the tax amnesty program shall be protected or otherwise nobody would be interested in participating in it. Therefore, those data shall not be used as evidence in a criminal investigation. Furthermore, the Court ruled that the tax amnesty law only provides immunity to tax related crimes, but it never provides immunity to other offences committed by tax evaders.

As mentioned earlier, there has been a growing suspicion that the Jokowi administration “pressured” the Court to support the Tax Amnesty Law. While there is no substantial evidence that the Court reached the decisions under pressure, the meeting between Chief Justice Hidayat and President Jokowi has, nonetheless, tainted the legitimacy of the Court’s decision.

  1. The Prenuptial Agreement case (Decision No. 69/PUU-XIII/2015)

The crux of the matter was a prohibition for a foreigner to own property under the Right to Build (Hak Guna Bangunan), as stipulated in Article 36 (1) of the Basic Agrarian Law. While the prohibition only applied to foreigners, it indirectly applied to an Indonesian citizen who married to a foreigner because the Marriage Law No. 1 of 1974 imposed a joint property arrangement in which property acquired during a marriage becomes joint property (harta bersama).[20] In other words, a foreigner can acquire property through marital relationship with an Indonesian citizen.

The claimant married a Japanese citizen but retained her Indonesian citizenship. The petitioner purchased an apartment and paid the full amount of payment in September 2012. But the developer refused to provide a certificate of ownership and petitioned the East Jakarta District Court to revoke the purchase. The District Court granted the petition and ruled that the claimant has no legal capacity to enter into a purchase agreement based on Indonesian civil law.

The claimant challenged the constitutionality of both Article 36 (1) of the Basic Agrarian Law and Article 35 of the Marriage Law (the joint property clause). She also challenged Article 29 (1) of the Marriage Law, which stipulates, “at the time of or before the marriage took place, with the mutual consent of both parties, the couple may enter into a prenuptial agreement.” The Marriage Law does not explicitly recognize a postnuptial agreement. But there are many couples that might wish to draw up a postnuptial agreement. For instance, in a case where a couple did not sign a prenuptial agreement but later decide that they want to have some financial arrangement in place after they accumulate some wealth.

The Court rejected the claim against the Basic Agrarian Law and the joint property clause in the Marriage Law. Nevertheless, the Court chose to review the prenuptial clause. In the Court’s opinion, the limitation for husband and wife to enter into a postnuptial agreement is a violation of the freedom of contract. The Court then declared that Article 29 (1) is “conditionally unconstitutional” unless it was interpreted that a marital agreement can be made before, during, and after the marriage took place. In other words, the Court declared that the Marriage Law should be interpreted in light of the recognition of postnuptial agreements.

V. Conclusion

Having reviewed some major cases in the last term, one can see a pattern of how the executive and legislature ignored some of the decisions from the first-generation Court. Then, they passed new laws that reinstated the policies that were being struck down by the Court. In the last term, the Court had to review some cases that dealt with the reinstatement of the government’s policies. The Court, however, took a compromise approach by acknowledging that the government has tried to follow the Court’s directive, but at the same time it moved to declare some challenged provisions “conditionally unconstitutional.” Overall, the Court under the chairmanship of Arief Hidayat has become a less interventionist court. In 2017, Arief Hidayat has to face re-election as the Chief Justice, and the public will wait on whether all of the constitutional court justices still trust him as the Chief Justice. As we write this report, President Jokowi has appointed academic-cum-activist Saldi Isra as a new Associate Justice of the Constitutional Court. With his long track record as an anti-corruption activist and stellar academic credentials, Saldi Isra might be a bold and autonomous judge. Whether he will be remains to be seen.


* Affiliated Scholar at Boston College. Email: frhendri@bc.edu

** Affiliated Scholar at Indonesia Jentera School of Law. Email: fritz.siregar@jentera.ac.id

[1] Stefanus Hendrianto, “Indonesia’s Constitutional Conundrum: The Weak Presidency, the Strong Opposition, and the Regional Elections Law,” Int’l J. Const. L. Blog, Oct. 4, 2014, available at http://www.iconnectblog.com/2014/09/indonesias-constitutional-conundrum-the-weak-presidency-the-strong-opposition-and-the-regional-elections-law/

[2] For a detailed analysis of Jokowi’s political consolidation, please see Eve Warburton,             ”Jokowi and the New Developmentalism,” Bulletin of Indonesian Economic Studies, Vo. 52, No. 3, 297-320 (2016)

[3] In the recent Jakarta Governor Election, which took place on April 19, 2017, Anies Baswedan successfully took down President Jokowi’s key ally, Basuki Tjahja Purnama. Purnama is backed by President Joko Widodo’s ruling party. Baswedan is supported by a retired general, Prabowo Subianto, who narrowly lost to Widodo in the 2014 presidential election and is expected to challenge him again in the 2019 presidential election. The Jakarta governorship is widely seen as a litmus test for winning the presidency, and the result would put President Jokowi in the defensive position.

[4] For a detailed analysis of the evolution of the Indonesian Constitutional Court, please see Stefanus Hendrianto, “The Rise and Fall of Heroic Chief Justices: Constitutional Politics and Judicial Leadership in Indonesia,” 25 Washington International Law Journal 489 (June 2016)

[5] The Court only has authority to review a constitutional question in an abstract way and not to resolve a concrete constitutional case. The Court’s abstract review does not aim to address the injury suffered by the claimant; rather, it would only pronounce on the constitutionality of the challenged statute. In contrast, a concrete review aims to resolve the injury suffered by the claimant with a concrete remedy

[6] Undang – Undang No. 24 of 2003 tentang Mahkamah Konstitusi (Law No. 24 of 2003 on the Constitutional Court), art 51

[7] Constitution of Republic of Indonesia 1945, art 24C (1)

[8] Constitution of Republic of Indonesia 1945, art 24C (3)

[9] Initially, Article 4 (3) of the Constitutional Court Law 2003 provided that the Chief Justice and his deputy shall serve for a three-year term. But in 2011, the lawmakers amended the law and reduced the term of Chief Justice to two years and six months. See Law No. 8 of 2011 on the Amendment of the Constitutional Court Law

[10] “Temui Jokowi, Hakim MK Klaim Tak Bahas Gugatan Tax Amnesty.” (Meeting with Jokowi, the Chief Justice Claims No Discussion on the Tax Amnesty case) Suara.com, September 1, 2016. Accessed April 15, 2017. http://www.suara.com/news/2016/09/01/150944/temui-jokowi-hakim-mk-klaim-tak-bahas-gugatan-tax-amnesty

[11] In 2013, the Court’s reputation was seriously damaged when the then Chief Justice Akil Mochtar was arrested for accepting a bribe to rule on a regional election dispute. Currently, Mochtar is serving life imprisonment

[12] “Beef importer Basuki reportedly confesses to bribing Constitutional Court aide.”

The Jakarta Post, January 27, 2017.

http://www.thejakartapost.com/news/2017/01/27/beef-importer-basuki-reportedly-confesses-to-bribing-constitutional-court-aide.html; see also

“KPK names MK justice Patrialis Akbar suspect in the bribery case,” The Jakarta Post, February 27, 2017

http://www.thejakartapost.com/news/2017/01/27/kpk-names-mk-justice-patrialis-akbar-suspect-in-bribery-case.html

[13] President Susilo Bambang Yudhoyono appointed Patrialis Akbar as an associate Justice in August 2013. There was speculation that his appointment was because of the collusion between President Yudhoyono and his in-law, Hatta Rajasa, the then Coordinating Minister of Economic Affairs. Akbar was a member of the National Mandate Party (PAN), chaired by Mr. Rajasa. Some NGOs then filed a judicial review in the Administrative Court petition to challenge the appointment of Akbar on the ground that the appointment process was not transparent. The Administrative Court quashed Akbar’s appointment on the basis that it did not fulfill transparent and public participatory principle as required by Article 19 of the 2003 Constitutional Court Law. Nevertheless, the High Administrative Court reversed the decision by the District Administrative Court

[14] Constitutional Court Decision No 137/PUU-VII/2009 (the Animal Health and Husbandry Law I case)

[15] In 2004, Puteh challenged the constitutionality of the Anti-Corruption Law that was used to charge him, but the Court rejected Puteh’s claim. See the Constitutional Court Decision 069/PUU-II/2004

[16] Constitutional Court Decision No. 001-021-022/PUU-I/2003

[17] Constitutional Court Decision No. 149/PUU-VIII/2009

[18] In the Tax Amnesty Law II case (Decision No. 58/PUU-XIV/2016), the Court unanimously dismissed the case and held that it’s ruling in the Tax Amnesty I case should be applied to this case

[19] Law No. 11 of 2016 on Tax Amnesty

[20] Law No. 1 of 1974, Article 35

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Published on October 8, 2017
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