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Simon Butt
Scholars (Majelis Ulama Indonesia or MUI). This result is unsatisfactory, par-
ticularly given that many views of the MUI appear to sit uncomfortably along-
side other constitutional rights, such as freedom of religious belief, freedom of
expression and the like.
10.3.1.2. The Court and the Rule of Law: Minority Perspectives
Some of the clearer expositions of the Negara Hukum concept have come from
the dissents of individual judges. For example, in his dissent in the KPK case
(2004), Justice Siahaan set out a formulation of Negara Hukum: recognition
and protection of human rights; the principle of legality, meaning that all state
bodies and institutions and citizens must base their actions on legal rules; and
an independent and impartial judiciary. In the same case, Siahaan explained
further that the Negara Hukum’s principle of legality requires lawmakers to
obey the hierarchy of laws when lawmaking – that is, lower-level laws must
be based on higher-level laws, with the Constitution at the apex. He noted
that every lower-level law that is inconsistent or conflicts with a higher-level
law breaches the principle of legality.
48
In this case, Justice Soedarsono also
confirmed that ‘[t]he purpose of the Negara Hukum . . . is to protect human
rights’.
49
Perhaps the most substantial discussion of the concept has been provided
by Justice Hidayat. In a recent dissent, he stated the following:
The Indonesian Negara Hukum is based on Pancasila and the 1945
Constitution and choses a prismatic or integrative concept between the two
concepts of rechtstaats and the rule of law, which integrates the principle of
‘legal certainty’ from the rechtstaats and the principle of ‘justice’ from the
rule of law. Therefore, Indonesia does not choose which one is better and
superior, but combines these two principles into one . . . including the posi-
tive elements of the two principles in monitoring the exercise of government
power and law enforcement, with the aim of achieving utility and order in
the community, in accordance with the aim of the law, as declared by Gustav
Radbruch – that is, justice, certainty and utility.
50
Justice Hidayat continued:
As a Negara Hukum, the state constitution is placed in the highest position
in the hierarchy of laws. In the context of the hierarchy, the legal order is
48
Constitutional Court Decision 006/PUU-I/2003, 111.
49
Ibid.
, 125.
50
Constitutional Court Decision 43/PUU-XIII/2015, 220.
The Indonesian Constitutional Court
315
described as a pyramid with the constitution as the highest law, and the laws
below it being an elaboration of the constitution . . . the creation of lower
norms is determined by other higher norms the creation of which are deter-
mined by higher laws, with the chain ending with the highest fundamental
norm – the constitution.
51
10.3.2. Implying Rights
The Court has ignored debate on the wider issue of the propriety of implying
rights. In many countries, the implication of constitutional rights has been
controversial. Some theorists argue that it undermines the legitimacy of judi-
cial review, which is only democratically justifiable if judges strictly interpret
the Constitution, rather than add to or reduce it according to their personal
preferences. After all, most judges are not elected and judicial review allows
them to overrule laws made by a democratically elected legislature.
52
Most
countries, however, consider judicial review legitimate when permitted by the
Constitution – the ‘highest law’ or the ultimate source of legal legitimacy,
assumed to express the will of the people.
53
Yet arguably when the Court
implies rights that are not expressly stated in the Constitution, it breaches the
very Constitution that empowers it.
The Court has also not addressed compelling arguments against imply-
ing rights. If the Constitution intended to provide rights, then why did it not
clearly express them, instead of leaving them open to supposition? After all, the
Constitution was only recently amended. Why did the People’s Consultative
Assembly (Majelis Permusyawaratan Rakyat, MPR) not insert specific provi-
sions on Negara Hukum rights if it wanted the Court to enforce them? And if
the rights flowing from the Negara Hukum are so fundamental that they need
not be expressed, then why is the right to protection from retrospective pros-
ecution – one of the five pillars of a fair trial, which itself formed part of the
rule of law as identified by the Court expressly included in the Constitution?
51
Ibid.
, 221.
52
Ilya Somin, ‘Political Ignorance and the Countermajoritarian Difficulty: A New Perspective
on the Central Obsession of Constitutional Theory’ (2004) 89 Iowa Law Review 1287; Lisa
Hilbink, ‘Beyond Manicheanism: Assessing the New Constitutionalism’ (2006) 65 Maryland
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