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The Indonesian Constitutional Court
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vagaries of the Indonesian version of the ‘rule of law’ – the concept upon which
the Court has relied to imply rights, at least in the cases thus far. I then seek to
explain why the Court began – and then stopped – implying rights.
10.1. Introducing the Constitutional Court
Indonesia is a large archipelagic state, comprising over 17,000 islands,
stretched across over 5,000 kilometres from east to west. Its population of over
250 million is culturally and religiously diverse and, though it has a rising
middle class, the gap between rich and poor is becoming more marked. A
former Dutch colony, it follows the civil law tradition and continues to apply
large bodies of Dutch law dating back many decades. (In particular, its Civil
Code, first applied in Indonesia in 1848, and Criminal Code, applied from
1918, remain largely intact, despite piecemeal attempts at legislative reform
in some fields, such as marriage, land law, corruption and terrorism.) Though
not an Islamic state, Indonesia has more Muslims than any other nation and
has religious courts to decide particular types of disputes between Muslims.
Customary law, or adat, is widely practised, particularly outside urban centres.
For most of its independent history, Indonesia has been an authoritarian
state. Indonesia’s first Constitution – introduced on 18 August 1945, the day
following the declaration of independence – was threadbare and ambiguous,
referring to the need for an independent judicial system and an elected legis-
lature, but leaving much scope for the exercise of strong presidential power.
This was justified as necessary to bring Indonesia’s disparate population
together, in part to fight against the Dutch when they returned to reclaim
Indonesia after World War II. After this so-called revolution against the Dutch
concluded in 1949, Indonesia’s rulers experimented with a liberal democratic
system – complete with independent courts, constitutional rights, democratic
elections and a strong legislature. A constituent assembly was established to
decide whether Indonesia should maintain that system or choose another.
Two of the systems the assembly considered were an Islamic state and author-
itarianism. However, instability, both within the national parliament and in
Indonesia’s outer regions, led the then President Soekarno to reinstate the 1945
Constitution by decree in July 1959 – before the Assembly could decide on the
basis of the state. From then, until the fall of Indonesia’s second President,
Soeharto, in May 1998, Indonesia was authoritarian, backed by a very strong
military that played a central role in politics.
Within a few years of Soeharto’s fall, Indonesia had already made signifi-
cant progress along the path to becoming a functioning democracy. One early
reform was amending the Constitution to give more power to the national
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Simon Butt
legislature, elected in free and fair elections, and to entrench a catalogue of
internationally protected human rights. Judicial reform was also prioritised. By
the late 1990s, Indonesia’s courts had become decrepit – in terms of physical
infrastructure and budgets, judicial competence, administrative capacity, sus-
ceptibility to bribery and dependence on government. They were widely con-
sidered unable to reliably resolve disputes between citizens, much less between
citizens and the state. During the Soeharto years in particular, the government
had used its administrative control over the courts – including when to pay or
promote judges, if at all – to elicit favourable decisions. One of the first judiciary-
related reforms, then, sought to improve judicial independence by giving
administrative control of all lower court judges to the Supreme Court itself.
Another important post-Soeharto judiciary-related reform was the establish-
ment, in 2003, of the Constitutional Court – the focus of this chapter. This
Court, institutionally separate from the Supreme Court, has various consti-
tutionally delineated powers. These include constitutional review – that is,
assessing whether statutes enacted by Indonesia’s parliament comply with the
Constitution; resolving disputes over election results; deciding jurisdictional
contests between state institutions established under the Constitution; hear-
ing government – brought motions for the disbandment of political parties;
and considering parliamentary allegations of misconduct by the president or
vice president, as part of impeachment processes.
The Court has, mostly, exercised these powers professionally – that is,
independently, industriously, consistently, transparently and with a concern
to justify its decisions by reference to the law. This sets it apart from most of
Indonesia’s other courts, which, as mentioned, have traditionally been consid-
ered corrupt, incompetent and dependent on government. The Constitutional
Court has not shirked ‘difficult’ cases, including those involving significant
governmental interests or controversial issues such as human rights, religion
and ethnicity. It has invalidated dozens of statutory provisions and has even
invalidated entire statutes. For these reasons, the Court is often described as a
model for judicial reform in Indonesia.
However, the Court has not been beyond reproach. Some of its staff and
judges have been accused – and convicted – of corruption. Most notable
was the conviction of Justice Akil Mochtar for taking bribes to fix the out-
come of regional head electoral disputes. Mochtar was Chief Justice of the
Court when he was arrested. Further, the Court’s decision-making has been
criticised, most often for the outcomes produced. It is also criticised for issu-
ing inconsistent decisions, for economic conservatism, for failing to uphold
important constitutional rights and for guarding its own institutional inter-
ests, even against legitimate legislative intervention directed at ensuring that
the Court does not overstep its constitutional mandate. Yet despite these per-
ceived inadequacies, the Court’s decisions have been largely respected. This
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