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Iddo Porat
with or without an override clause), or the type of doctrine applied (e.g., tiers
of scrutiny or proportionality). Some rights or institutional arrangements may
be borderline cases. The doctrine of proportionality, for example, is viewed
by some as part of the essence of constitutionalism, and as following logi-
cally from the idea of human rights, and hence as having left the realm of
contingent doctrine and entered into what I would term the ideal Form of a
constitution.
77
Second, one may ask how is it that the ideal Form of a constitution can
be perceived by judges. After all, according to the Platonic analogy, the ideal
Forms are imperceptible to the human eye, and only their manifestations as
matter or object can be perceived. Similarly, how is it that judges can annul
constitutional provisions or amendments (using such doctrines as unconsti-
tutional constitutional amendments), if such provisions are analogized to
objects and Matter that cannot be erased from reality by an act of human will.
As to the first question, judges may indeed acknowledge that they do not have
direct access to the ideal constitution, or the ideal Form of human rights –
they can only strive to approximate them, and get closer to them, and the
different manifestations of constitutional texts worldwide are helping them
in this project. Second, the idea of annulling a constitutional provision can
be analogized to declaring a classification of an object as wrong. Viewing
a provision in a constitution that deprives people of their basic rights, as a
constitutional provision, would be like looking at a dog and saying that it is a
cat. Some objects are so far from the ideal Form that they cannot be regarded
as manifestations of it. While not all parts of the analogy fit exactly, I hope to
have shown that it is close enough to be a useful and effective heuristic.
9.5. Conclusion
Israeli constitutional adjudication includes a very substantial amount of
unwritten constitutional law. Indeed, most of the constitution in Israel can be
said to be unwritten. Even the fact that it is a constitution and not a piece of
regular legislation is unwritten. I have argued that this fact is the result of con-
tinuous attempts by the Supreme Court, and in particular by its most intellec-
tually influential Justice, Justice Aharon Barak, to bridge the gap between the
ideal – having a full-fledged constitution with a full bill of rights, and reality –
only a partial and fragmented text which is the beginning of a constitution.
77
See Robert Alexy, A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002),
66 (Julian Rivers trans.) arguing that the doctrine of proportionality “logically follows” from
the nature of rights as principles.
The Platonic Conception of the Israeli Constitution
297
I have also argued that behind this project, that turned out to be phenome-
nally successful, lies a theory of constitutional interpretation which I called a
Platonic conception of the constitutional text.
Is Israel only an extreme case of the Platonic conception of the text, or
should it be regarded as qualitatively different than, let us say, German con-
stitutionalism which also shares some of the premises of the Platonic concep-
tion, or even the American constitution, of which great parts are unwritten?
The answer is not clear. However, sometimes differences of degree become
differences in kind. Courts have been known to engage in very loose methods
of constitutional interpretations, but they at least were interpreting a constitu-
tion. In the case of Israel, the judicial act can only be described as an act of
pure statesmanship on behalf of the Court – since it amounted to constitution
building and creation, and not only interpretation.
298
Indonesia’s Constitutional Court was established in August 2003. It has nine
judges, with three each appointed by the three arms of government – the
national parliament, the Supreme Court and the president. Most of its judges
have been law professors, former politicians and judges from other Indonesian
courts, including the Supreme Court itself. Though it is not the first
Indonesian judicial institution to have some form of judicial review power, the
Court is the first to have exercised constitutional review. However, this power
is limited. In particular, the Court can only determine whether legislation
enacted by Indonesia’s national parliament complies with the Constitution.
It lacks jurisdiction to review executive regulations or government action for
constitutionality.
This chapter considers the handful of cases in which the Court has sought
to ‘imply’ constitutional rights. In these cases, the Court has identified, and
then applied, rights that it considers essential to the ‘rule of law’, as understood
in Indonesia. Problematically, the Court has attempted to explain neither its
approach to implying rights, nor precisely what the rule of law entails.
While implying rights raises the ire of legislatures and legal commenta-
tors in other countries, it has almost entirely escaped attention in Indonesia.
Indeed, when the national legislature attempted to curb the Court’s powers in
2011, in response to perceived judicial activism, it ignored these implied rights
cases. Instead, the legislature sought to prohibit the Court exceeding its juris-
diction in other ways. Nevertheless, after an enthusiastic start during its earlier
years, the Court’s rights implication appears to have slowed, if not ceased, in
more recent years. The Court’s implied rights jurisprudence may well have
already reached its zenith.
This chapter provides an account of the rise, and the apparent fall, of rights
implication in Indonesia’s Constitutional Court. I begin by introducing the Court
and its jurisdiction, before discussing the Court’s implied rights cases and the
10
The Indonesian Constitutional Court
Implying Rights from the ‘Rule of Law’
Simon Butt
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