—Febriansyah Ramadhan,Lecturer in Constitutional Law, Faculty of Law, Universitas Pendidikan Nasional, Indonesia
Twenty-five years after the enactment of Law No. 26 of 2000 on the Human Rights Court, Indonesia continues to confront a stark paradox: legal instruments to adjudicate gross human rights violations are in place, yet justice remains unavailable in many instances. This deadlock is often explained as the result of weak political will. As I argue in this post, that explanation is correct, but insufficient.
In the Indonesian case, impunity arises not only from political failure, but also from a legal design that causes the enforcement of gross human rights violations to move through an institutional labyrinth. The process traverses three centers of authority: Komnas HAM investigates the events, the Attorney General investigates the perpetrators and conducts the prosecution, and the Human Rights Court examines and decides the case. This model is unique within Indonesian criminal procedure. For the most serious crimes, the state has constructed a chain of authority most vulnerable to rupture. This uniqueness cannot be separated from the context of its birth. The Human Rights Court Law emerged during a difficult transitional period.
Indonesia had just exited the New Order, but the transition did not fully cleanse the state of old actors. The 1998 Reformasi opened democratic space, expanded civil liberties, and established new institutions. However, actors rooted in the old regime continued to survive within political parties, the bureaucracy, the military, and the state’s patronage networks. Thus, the Human Rights Court Law was born out of two conflicting impulses: public demands for accountability and the interests of old elites in managing the risks of responsibility.
James Loxton explains that authoritarian elites or parties do not necessarily disappear after democratization. Rather, they may adapt within a democratic system while maintaining influence through organizational networks, patronage, and old political resources. This framework helps explain why Indonesia’s transition did not automatically produce transitional justice. The deadlock is reflected in the fact that each of the 13 case files concerning gross human rights violations submitted by Komnas HAM to the Attorney General’s Office has been returned on 38 separate occasions. This repeated circulation of case files is not merely an administrative defect; it is a form of procedural stagnation in which legal mechanisms appear to operate while accountability never reaches the courtroom. Beyond formal state institutions, this deadlock is also remembered and contested through Aksi Kamisan, a weekly silent protest held every Thursday outside the Presidential Palace in Jakarta. Since 2007, victims’ families, survivors, and human rights activists—often dressed in black and carrying black umbrellas—have gathered to demand truth, accountability, and justice for past gross human rights violations. For nearly two decades, the protest has come to embody the persistence of victims’ families amid the state’s recurring failure to resolve these cases. Elizabeth Drexler interprets Aksi Kamisan as a form of circular time: a cycle in which the state repeatedly renews its promises, postpones recognition, and fails to deliver justice. The black umbrellas outside the Presidential Palace therefore signify more than grief; they constitute a constitutional critique of a state that leaves victims in an endless condition of waiting.
The main argument put forward in this post is that the deadlock of the Human Rights Court Law is not caused only by the President, the House of Representatives, Komnas HAM, or the Attorney General. The Constitutional Court also contributes to it. Through its decisions, the Court once opened space for progressive, substantive, and comparative reasoning. However, in its later stages of development, the Court engaged in a narrowing of its reasoning: from openness to international law as persuasive authority toward institutional caution that too quickly took shelter behind judicial restraint and the doctrine of open legal policy. This narrowing has worsened the situation because the Constitutional Court, which should have served as the last corrective forum, has instead contributed to the deadlock.
The Role of the Constitutional Court
The Constitutional Court should be an important actor in improving the Human Rights Court regime in Indonesia. In cases concerning gross human rights violations, this Court is not dealing with ordinary legal disputes. It is dealing with hard cases that reveal a clash of paradigms about what law is and how law ought to operate when confronted with questions of humanity. In such cases, judges cannot merely read the text. They must consider how that text operates within concrete structures of power.
In its early phase, the Constitutional Court demonstrated such courage in reasoning. In Decision No. 065/PUU-II/2004, the Court refused to read the principle of non-retroactivity in absolute terms and linked gross human rights violations to extraordinary crimes, jus cogens, and developments in international law. A similar openness appeared in Decision No. 006/PUU-IV/2006, when the Court annulled a norm that made victims’ compensation and rehabilitation dependent on amnesty for perpetrators. These two decisions show that the Court once used international law not as decoration, but as an argumentative basis for strengthening victims’ justice and the transitional justice regime.
These two early decisions demonstrate the potential of comparative judicial reasoning. Vicki Jackson argues that the use of foreign law or international law does not automatically amount to a betrayal of the national constitution. If used carefully, external sources can help judges test assumptions, assess consequences, and enrich the meaning of the constitution. Mark Tushnet also views comparison as a way of learning from other constitutional experiences, not as a means of copying foreign law. Bruce Ackerman describes this function as concept thickening, namely the thickening of constitutional concepts by examining how other jurisdictions confront similar problems.
However, that early progressive trajectory began to narrow over time. In Decision No. 18/PUU-V/2007, the Constitutional Court still corrected the mechanism for establishing ad hoc Human Rights Courts for past gross human rights violations. Under this mechanism, the House of Representatives must first propose to the President that an ad hoc Human Rights Court be established to try a particular event. The Court removed the word “allegation” from the explanatory provision of the law, which had previously allowed the House’s proposal to rest solely on an allegation that gross human rights violations had occurred. Through this decision, the establishment of an ad hoc Human Rights Court could no longer rest merely on the House’s political assessment, but required a stronger basis in the legal findings and processes concerning the event in question. Nevertheless, the Court’s style of reasoning began to shift, references to international law became more limited, while considerations of procedure and institutional balance became increasingly prominent. This decision did not amount to a complete retreat, but it marked a movement from substantive courage toward institutional caution. The clearest narrowing later appeared in Decision No. 75/PUU-XIII/2015, which reviewed the Attorney General’s authority to return Komnas HAM’s investigation files.
It is here that the complexity of the three centers of authority becomes very concrete. Komnas HAM examines the events and prepares the results of a pro justitia preliminary investigation. The Attorney General then assesses whether the file is sufficient to proceed to investigation and prosecution. However, because the Attorney General also has the authority to return the file, the process turns into an unequal corrective relationship. Komnas HAM becomes an institution burdened with a heavy evidentiary standard, yet it does not possess all the coercive instruments needed to satisfy it. The Attorney General, by contrast, holds the authority to investigate and prosecute, yet may continue returning the files without an effective dispute-resolution mechanism.
This is not a technical problem, but a structural one. Because Komnas HAM’s preliminary investigation focuses on the events, while the Attorney General’s investigation focuses on the perpetrators and criminal responsibility, an evidentiary burden requiring coercive instruments should not be shifted back to Komnas HAM. In practice, however, the file-return mechanism allows the chain of accountability to break before the case enters the Human Rights Court. Ironically, in Decision No. 75/PUU-XIII/2015, the Constitutional Court in fact acknowledged the existence of differing standards, the absence of a dispute-resolution mechanism, the lack of legal consequences for violations of time limits, and the absence of any remedy for victims.
Although the Constitutional Court acknowledged the institutional flaws in handling gross human rights cases, it offered no direct constitutional remedy. It recognized that Komnas HAM repeatedly received files back from the Attorney General with difficult instructions, while the Attorney General declined to proceed to a formal investigation to complete the evidentiary record, considering Komnas HAM’s findings insufficient. This left cases trapped in a recurring cycle of file returns, without a mechanism to resolve disputes between the two institutions. Yet rather than correcting this deadlock, the Court left reform to the President and the House of Representatives under the doctrine of open legal policy, which regards the detailed design of legal mechanisms as being within the legislative authority of lawmakers. In these circumstances, judicial restraint ceases to be neutral: when the Court knows that a legal design produces persistent deadlock but leaves its correction to lawmakers who have failed to act for years, restraint becomes institutional abdication.
Opportunities Amid Human Rights Regression
The prospect of reforming the Human Rights Court Law must be read against Indonesia’s current human rights regression and weakening horizontal accountability. As the executive and legislature become increasingly consolidated, the legislative route can no longer be reliably expected to provide correction. This makes the Constitutional Court strategically important, not because it is politically dominant, but because it holds the mandate to preserve the constitution’s corrective force when politics fails.
This concern is sharpened by the ongoing discourse on revising the Human Rights Law, which risks further narrowing Komnas HAM’s authority. The draft revision is regressive not merely because it changes institutional arrangements, but because it may reduce Komnas HAM’s research and education functions, subject its studies and recommendations to greater ministerial control, burden its amicus curiae authority, and create further uncertainty over its pro justitia role. If the institution that serves as the first gateway for examining gross human rights violations is weakened, the back-and-forth file mechanism may not only persist, but become even more deeply institutionalized.
This is the most serious form of regression: not the open dissolution of an institution, but the shrinking of its functions through administrative language. Komnas HAM continues to exist, but its oversight capacity is narrowed. It continues to be called an independent institution, but its relationship with the ministry is made increasingly tight. It may still speak about human rights, but its preventive, research, recommendation, and legal intervention instruments are constrained. In the context of gross human rights violations, such shrinking is highly dangerous because Komnas HAM is not a peripheral actor. It is the first gateway in the chain of law enforcement.
Indonesia today reveals the paradox of post-Reformasi democracy. Elections continue to be held, political parties continue to operate, and state institutions continue to stand. Yet corruption, the conflict in Papua, discrimination, the weakening of opposition, elite consolidation, and the weakening of oversight institutions show that Indonesian democracy has not fully moved toward substantive constitutionalism. Electoral democracy may survive, but without accountability for state violence, it loses its moral dimension.
Therefore, the available opportunity lies in the possibility that, in a future case, the Constitutional Court may give a clear constitutional correction to the defective file-return mechanism between Komnas HAM and the Attorney General. It may do so by adopting a more substantive, comparative, and victim-oriented approach to the rights to legal certainty and access to justice. Palguna and Wardana describe the Constitutional Court’s practice in relation to international law as pragmatic monism. This means that the Constitutional Court is not entirely closed to international law. The space exists, but it depends on the courage of judges to use it consistently and responsibly.
The Constitutional Court need not act as a new lawmaker. However, it may set clear constitutional limits: that an unlimited back-and-forth file mechanism, without dispute resolution, without legal consequences, and without remedy for victims, is incompatible with the right to legal certainty and access to justice. In this way, the Constitutions Court does not take over the functions of the House of Representatives and the President. Rather, it forces both to operate within the constraints of the constitution.
After 25 years of the Human Rights Court Law, Indonesia’s problem is not the absence of legal instruments, but the ease with which law turns into a procedure of delay. Institutions are created, procedures are designed, files are submitted, returned, completed, and returned again, while trials, truth, reparations, and legal certainty remain deferred. In this sense, the pathways to transitional justice are almost entirely closed. As Herlambang P Wiratraman argues, Indonesia’s authoritarian turn has increasingly been institutionalized through law and the courts, allowing the judiciary to operate within — and at times reinforce — the chain of impunity. The Constitutional Court therefore matters not because it should replace lawmakers, but because it can prevent legal designs that delay justice from continuing to receive constitutional legitimacy. The central question is no longer whether Indonesia has a legal framework to adjudicate gross human rights violations, but whether that framework can still be trusted by victims.
Suggested citation: Febriansyah Ramadhan, 25 Years of the Indonesian Human Rights Court Law and the Contribution of Indonesia’s Constitutional Court, Int’l J. Const. L. Blog, Jul. 7, 2026, at: http://www.iconnectblog.com/25-years-of-the-indonesian-human-rights-court-law-and-the-contribution-of-indonesias-constitutional-court/