University Press, 2000), 135.
316
Simon Butt
10.3.3. Practical Consequences of ‘Discovering’ Rights
In these decisions, the Court has proclaimed the existence of these rights
almost in the abstract, considering no practical implications of their coming
into being. For example, the Court has not explained the consequences of a
breach of process-related rights. If a trial is procedurally unfair or due process
is ignored, will the final judicial decision be invalid? Will trials in which these
rights are ignored be automatically open to appeal because an error of law has
been made?
The Court’s decision about legal aid in the Advocates Law case is par-
ticularly simplistic and lacking in foresight. It is unclear whether the Court
intended that the right to legal aid was a broad right to legal aid for any
Indonesian citizen for any case, regardless of financial means, or only for those
without sufficient means to afford an advocate. This lack of elaboration leaves
unanswered fundamental questions about the right’s practical operation. If
the right applies only to those unable to afford a lawyer, then how ‘poor’ must
one be to qualify for legal aid? Does the right apply in all cases – criminal,
civil and administrative? Does the right apply to support vexatious litigants or
unrealistic claims? Further, the Court did not specify who was to fund and
administer the provision of legal aid apparently required by its decision.
10.4. Explanations and Conclusions
Despite having a significant basis upon which to complain, the government
has not responded to any of the democratic or constitutional objections to
implying rights mentioned above. Indeed, in 2011, when Indonesia’s national
parliament changed the Constitutional Court’s governing law – directed at
reining in the Court, which appeared to have been expanding its powers and
usurping the legislative function – the Court’s implied rights jurisprudence
was ignored. The amendments focused on other ways in which the parlia-
ment thought the Court was pushing the boundaries of its jurisdiction, such
as by issuing orders to government, invalidating laws or provisions that appli-
cants had not requested and, most importantly, issuing declarations of condi-
tional constitutionality or unconstitutionality.
54
That implied rights escaped
unscathed appears to indicate that the state did not see their ‘discovery’ and
‘application’ as a threat to legislative power.
There are several possible explanations for this, four of which I now turn to
discuss. One is that, as mentioned, the constitutional rights the Court appears
54
Simon Butt and Tim Lindsey, The Indonesian Constitution: A Contextual Analysis (Oxford:
Hart Publishing, 2012).
The Indonesian Constitutional Court
317
to have implied were already provided as express statutory rights. On this read-
ing, these implied rights added no substantive legal entitlements to those cit-
izens already enjoyed, about which there is no controversy. The presumption
of innocence is, for example, found in several Indonesian statutes, includ-
ing Indonesia’s basic judiciary laws,
55
and the 1999 Human Rights Law.
56
The
Code of Criminal Procedure and the Human Rights Law also provide other
rights and guarantees commonly associated with a fair trial and due process.
However, this explanation underplays the significance of what the Court
has done in these implied rights cases. It ignores that the Court appears to
have elevated to constitutional status rights that had previously only been pro-
vided by statute. This is an important development, because it brings these
rights within the jurisdiction of the Court to enforce. (As mentioned, the
Court’s judicial review power is limited to ensuring the constitutionality of
statutes. It has no power to apply or enforce statutes. Only the Supreme Court
and the courts below it in Indonesia’s judicial hierarchy have power to do
this.) Various judges of the Constitutional Court have indicated that it often
takes on the responsibility to provide ‘justice’ when other state institutions,
including other courts, have failed to do so.
57
This analysis – of the Court as
‘the backstop of justice’ – seems to encompass a critique of other courts in
Indonesia for failing to ensure that the state and its officers do not trample on
important process-related rights of citizens.
A second explanation emphasises that sometimes the rights the Court has
implied from the Negara Hukum concept have, as mentioned, been reflected
in or encompassed by other express constitutional rights. In most cases in
which the Court appears to have favoured this approach, the Court could
probably have reached the same decision simply by applying only the express
constitutional rights provisions, without recourse to the Negara Hukum
concept.
Perhaps the strongest example of this approach is found in Constitutional
Court Decision 16/PUU-VIII/2010 – a case in which the Court was asked to
review legislative provisions that prohibited a person from asking the Supreme
Court to reopen a case more than once. This process, called peninjauan kem-
bali, allows the Supreme Court to review an earlier court decision – even
one of its own appeals – in the interests of justice because of new evidence or
obvious judicial error.
55
See, for example, Article 8 of Law 4 of 2004 on Judicial Power.
56
See, for example, Article 18(1).
57
Rita Triana Budiarti,
Kontroversi Mahfud M.D. (Jakarta: Konstitusi Press, 2012).
