The Invisible Constitution in Comparative Perspective

Partai Komunis 

Indonesia, PKI), or who had been directly or indirectly involved in the 1965 

coup. This case was brought by about thirty people, some of whom had been 

imprisoned for direct or indirect involvement in the coup of 30 September 

1965 and had been labelled communist.

This case was primarily won on the argument that Article 60(g) was discrim-

inatory. The Court held that, because Article 60(g) purported to prohibit a 

group of citizens from nominating themselves for these parliaments, it clearly 

‘had a nuance of political punishment for the group’.

16

 However, the Court 

added:

[A]s a rule of law state, prohibitions which directly relate to the rights and 

freedoms of citizens must be based on a binding court decision.

17

The majority appeared to emphasise that citizens cannot be punished without 

due process:

Criminal responsibility can only be sought against the perpetrator, an accom-

plice, and/or an accessory. To place criminal responsibility upon a person 

who was not directly involved conflicts with the law, justice, legal certainty 

and rule of law principles.

18

The Court’s strongest and clearest use of the due process ground comes 

from its decision in the Book Banning case (2010).

19

 In it, a large coalition 

of Non-Governmental Organizations (NGOs) supporting authors and jour-

nalists challenged laws under which the Attorney General could ban books 

14 

Ibid.

15 

Constitutional Court Decision 011-017/PUU-I/2003.

16 

Ibid.

, 36.

17 

Ibid.

18 

Ibid.

19 

Constitutional Court Decision 6-13-20/PUU-VIII/2010.

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306 

Simon Butt

and then confiscate them.

20

 While the Court held that these laws violated 

freedom of expression and the right to not have property arbitrarily seized, 

it appeared to be most concerned about the laws giving unfettered power to 

the Attorney General to ban and seize books without judicial oversight.

21

 The 

Court declared:

In a Negara Hukum like Indonesia, due process – that is, law enforcement 

through a judicial system – is imperative. If an act is to be characterised 

as illegal, it must be [declared as such] by judicial decision. Banning the 

distribution of items, such as printed materials, because they may breach 

public order cannot be simply left to a government agency without a judicial 

decision. The Attorney General’s power to prohibit the distribution of written 

materials . . . without judicial process is one of the things an authoritarian 

state [would do], not a Negara Hukum like Indonesia.

22

10.2.4.  Presumption of Innocence

The Court held, in the Bibit and Chandra case (2009),

23

 that citizens are enti-

tled to the presumption of innocence.

24

 The applicants were two embattled 

Commissioners of the Anti-corruption Commission (Komisi Pemberantasan 

Korupsi or KPK), Chandra Muhammad Hamzah and Bibit Samad Rianto. 

They had been suspended from office while being investigated for misus-

ing their authority as Commissioners by issuing and revoking travel bans. 

However, it was widely believed that they had been ‘set-up’ by senior police 

they were investigating for corruption.

25

 They feared that, once brought to 

20 

Specifically, Articles 1 and 6 of Law 4/PNPS/1963 on Securing Printed Materials that Impede 

Public Order; and Article 30(3)(c) of Law 16 of 2004 on the Public Prosecution.

21 

Indeed, the majority even declared that book seizure would not necessarily breach these rights 

and freedoms, if obtaining judicial permission was a prerequisite to seizure.

22 

Constitutional Court Decision 6-13-20/PUU-VIII/2010, para 3.15.

23 

Constitutional Court Decision 133/PUU-VII/2009.

24 

Though the Court had, in earlier cases, already made important statements about the pre-

sumption. For example, the Court declared, in Constitutional Court Decision 24/PUU-

II/2005, 36, that 

[t]he presumption of innocence is a principle [under which] a suspect or defendant is con-

sidered not guilty until there is a final and binding decision of a court. This right is not only 

guaranteed by the 1945 Constitution, as the constitution of a negara hukum, but has univer-

sally been accepted as a part of civil and political rights that must be respected, protected and 

guaranteed (emphasis added).

25 

These claims were proved true when the Constitutional Court, during its first hearing of the case, 

allowed KPK-recorded taped conversations between suspects the KPK was investigating and sen-

ior prosecutors and police to be played in open court. These conversations revealed a plot to frame 

Bibit and Chandra: Simon Butt, Corruption and Law in Indonesia (London: Routledge, 2012).

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