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Simon Butt
One objection to the impugned statute was that allowing only one applica-
tion for reopening closed off the possibility of a future application being made,
even if new exculpatory evidence emerged that would likely have led to a dif-
ferent result. The applicant argued that this breached the Negara Hukum con-
cept and several express constitutional rights.
58
The Court turned down the
application, holding that the limitation promoted legal certainty and, because
it applied to all, was not discriminatory.
59
Nevertheless, the Court made this
statement about the Negara Hukum:
[T]he Negara Hukum is a state which adheres to principles including suprem-
acy of law, equality of law and due process of law which are constitutionally
guaranteed. The Negara Hukum principle is a general principle adhered to
in the administration of the state of Indonesia and in its implementation
must be connected with other provisions in the Constitution. Therefore,
whether the provisions put forward for review by the applicants breached
Article 1(3) will be considered interrelated with the other constitutional pro-
visions put forward by the Applicant.
60
On this view, an important use of the Negara Hukum by the Court appears to
be as a legitimising tool – that is, to provide further legal strength to its appli-
cation of other constitutional rights – perhaps ultimately to give its decisions
more weight. It is not clear why the Court feels the need to do this, given
that its decisions are usually respected by the government and private citizens
alike. As mentioned, the main reaction to the Court’s decisions from lawyers,
the government and the public, is almost exclusively concerned with the out-
come, rather than the decision itself and the reasoning it employed.
A third possible explanation for the lack of reaction to the Court’s imply-
ing rights in 2011 is that the high water mark of the Court’s implied rights
jurisprudence had already been reached by that time. According to this view,
the government has nothing to fear from the Court implying rights because
the Court now rarely does it. The practice of implying rights first emerged
during the reign of Indonesia’s first Constitutional Court Chief Justice,
Professor Jimly Asshiddiqie, a well-respected constitutional law scholar.
61
Just as the Indonesian Constitutional Court was designed using the South
58
Namely, Articles 27(1), 28D(1), 28H(2) and 28I(2).
59
Constitutional Court Decision 16/PUU-VIII/2010, 67.
60
Ibid.
, 66.
61
For an excellent discussion on the importance of the personalities of the Court’s chief justices
to the Court’s successes, see Stefanus Hendrianto, ‘The Puzzle of Judicial Communication in
Indonesia: The Media, the Court, and the Chief Justice’ in Richard Davis and David Taras
(eds.), Justice and Journalists: The Global Perspective (Cambridge: Cambridge University
Press, 2017).
The Indonesian Constitutional Court
319
Korean Constitutional Court as a model, so too did the Indonesian judges, in
their decision-making, draw on some of the ‘activist’ tendencies of the South
Korean Court, including the implication of rights. In this context, the Court’s
earlier implied rights cases, discussed above, are consistent with Asshiddiqie’s
widely reported desire for the Court to establish as large a body of constitu-
tional jurisprudence as possible, in the shortest possible time. (Unfortunately,
though, the Court paid little heed to establishing an overarching structure
or philosophy of interpretation to guide it in this endeavour.) The Court’s
activism, including rights implication, was continued by Asshiddiqie’s suc-
cessor, Professor Mahfud. However, it appears that the adventurousness of
Asshiddiqie and Mahfud has not been sustained by their successors, under
whom no new implied rights have been discovered.
Finally, it is possible that the rights the Court has ‘implied’ are largely unen-
forceable and, therefore, usually require the state to take no action. While the
Court can invalidate statutes in which such rights are ignored, most of the
rights that the Court has declared flow from the Negara Hukum are breached
in the daily practice of law, such as during investigations or trials, or in judi-
cial decisions, rather than in legislation. As mentioned, the Constitutional
Court’s review jurisdiction limits it to assessing whether statutes enacted by
the national parliament comply with the Constitution. The Constitutional
Court’s implied rights decisions can, therefore, often be ignored by all but the
national legislature, because the Court lacks jurisdiction to review the con-
stitutionality of government action and the judicial processes of other courts.
320
11.1. Questions: Does an Invisible Constitution Matter?
For What?
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