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The Indonesian Constitutional Court
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is particularly significant, because many of its cases involve the interests of the
government, or government institutions, whether national, provincial, city or
county. For many decades, government institutions have not had the exercise
of their powers subjected to judicial scrutiny.
The Court has also been criticised for using inadequate or questionable
legal reasoning to support some of its decisions. Critics have focused on the
Court’s insufficient disclosure, in its decisions, of the legal reasoning or inter-
pretative methods it employs. These criticisms, however, have largely fallen
on deaf ears, even within Indonesian legal and political communities. While
lawyers and politicians often criticise the Court for the decisions it reaches,
they rarely criticise the processes or principles the Court uses to arrive at
those decisions. This is surprising. Some politicians are particularly forthright
in their condemnation of the Court for invalidating legislation enacted by
a democratically elected parliament, but they have let this ‘opportunity’ to
criticise the Court pass by. Also, Indonesia’s legal community is particularly
vibrant, and usually keeps a close eye on the Court and the way it operates.
Given the need for lawyers to present arguments before the Court, one might
expect that they would be interested in discovering how the Court chooses
between those arguments. One explanation, explored later in this chapter, is
that Indonesian politicians and lawyers alike understand neither what rights
implication is nor what its consequences are.
I now turn to briefly outline the Court’s implied rights jurisprudence. As we
will see, the primary constitutional basis upon which the Court has implied
rights is Article 1(3) of the Constitution, which declares that Indonesia is a
Negara Hukum – a country that observes ‘the rule of law’. What comprises the
Negara Hukum has never been entirely clear and remains hotly contested in
Indonesia today. Nevertheless, after initially providing little guidance on what
the concept means in modern Indonesia, the Court has, more recently, begun
providing clues about its key components.
10.2. Implied Rights Cases
The Court began referring to the Negara Hukum concept and emphasised its
importance in its earliest decisions. In Bali Bombing (2003), for example, the
majority stated that
the essence of the Constitutional Court’s existence . . . to guard the
Constitution and to uphold the principle of the supremacy of the law in the
Indonesian state system after the Reformasi era . . . is nothing other than an
effort to strengthen the realisation of the ideas of the Negara Hukum.
1
1
Constitutional Court Decision 013/PUU-I/2003, 46.
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Simon Butt
In subsequent cases the Court uncovered various rights that emanate
from the Negara Hukum. These rights appear to include the right to legal
aid, to due process, to a fair trial and to be presumed innocent until proven
guilty. I now turn to outline key cases in which the Court has ‘discovered’
these rights.
10.2.1. The Right to Legal Aid and Access to Justice
In the Advocates Law case (2004), the Court was asked to review the con-
stitutionality of provisions of the 2003 Advocates Law that prohibited those
who were not formally qualified as advocates or lawyers from providing any
form of legal services or advice.
2
Those who did so faced criminal penalties of
up to five years’ imprisonment and significant fines. This prohibition put in
jeopardy the operation of many hundreds of legal aid clinics – most of which
are housed in universities – run by students and staff who were not formally
qualified as advocates. These clinics provided the primary, if not sole, means
by which Indonesia’s poor accessed legal services. For the Court, depriving
these citizens, and others, of legal assistance violated the Negara Hukum
concept:
[T]he right to legal assistance, as a part of human rights, must be consid-
ered a constitutional right of citizens, even though the Constitution does not
explicitly regulate or mention it. The state must, therefore, guarantee the
fulfilment [of this right].
3
In this context, the prohibition caused injustice for those who needed legal
services but could not afford to pay for them, and for those who lived in an
area where there was a clinic but no practising advocates. For the Court, this
further restricted or closed off the
community’s access to justice. Yet access to justice is an inseparable part of
another feature of the Negara Hukum – that the law must be transparent and
accessible to all, as is recognised in developments in modern thinking on
Negara Hukum. If, for financial reasons, a citizen does not have this access,
then it is the obligation of the state [to provide it], and it is truly also the
obligation of advocates to facilitate [that access] not to close it.
4
2
Constitutional Court Decision 006/PUU-II/2004.
3
Ibid.
, 29.
.
4
Ibid.
, 32.
The Indonesian Constitutional Court
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10.2.2. Right to a Fair Trial?
In several cases, the Court has declared that the right to a fair trial is also
required by the Negara Hukum.
5
In the Bali Bombing case (2003), for exam-
ple, the Court reviewed a law purporting to allow a new terrorism law to be
applied retrospectively to aid the investigation, prosecution and conviction
of those involved in the Bali bombings in Kuta in 2002. In its decision, the
majority explained that the right to a fair trial was an essential element of the
Negara Hukum. The Court stated that procedural justice requires
the presumption of innocence; equality of opportunity for the parties;
announcement of the decision open to the public; ne bis in idem [the double
jeopardy rule]; the application of less serious laws for pending cases and the
prohibition against retrospectivity . . . Law No 16 of 2003 . . . clearly breaches
one requirement . . . that is, it applies the retrospectivity principle.
6
In the Advocates Law case, mentioned above, the Court also appeared to asso-
ciate the right to a fair trial with access to justice:
Article 31 is . . . excessive and . . . impedes . . . the community’s access to justice,
which in turn, can prevent the fulfilment of the right to a fair trial, particu-
larly for those who are indigent. Article 31 is, therefore, contradictory to the
ideal of the Negara Hukum, which is clearly formulated in Article 1(3) of the
Constitution.
The Court then drew a parallel with the requirements of the ‘rule of law’:
As a comparison, access to justice in the context of fulfilling the right to a
fair trial attaches to the ideal of the rule of law and, therefore, is considered
a constitutional right. This constitutes the communis opinio [community of
opinion], as is shown in the English court case of R v. Lord Chancellor ex p
Witham (1998), in which it was stated ‘ ... the right to a fair trial, which of
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