The new Constitutional Court combines law and politics

Selina Wrighter

On 12 October 2002, explosions tore through two Bali nightclubs. Over 200 people were killed and hundreds more injured in a premeditated act of terror.

Six days later, facing mounting national and international outrage, Indonesian President Megawati Soekarnoputri passed an emergency regulation outlawing terrorist actions and giving police greater powers to detain and investigate suspected terrorists. By 22 July 2004 this anti-terrorism law had been used as the basis for the arrest, prosecution and conviction of 25 of the now infamous Bali bombers. Given that the law was enacted only after the bombings had occurred, in reaching these convictions the trial court had to apply the anti-terrorism law retrospectively. In other words, the suspects were tried and punished for a crime that, according to law, was not strictly a crime at the time it was committed.

However Article 28I(1) of the recently amended Indonesian Constitution states that the right not to be prosecuted under a retrospective law is a human right which ‘cannot be derogated from in any circumstances whatsoever’. And on 23 July 2004, by a bare majority of five judges to four, Indonesia’s Constitutional Court upheld its mandate as constitutional guardian and declared that in view of Article 28I(1) any retrospective application of the anti-terrorism law must be unconstitutional.

A controversial decision

The majority Constitutional Court ruling is probably the most prominent pro-rights decision to come out of an Indonesian court to date. It is also one of the most publicly criticised decisions by an Indonesian court in recent times. A common response among both Indonesians and Australians was to decry the ruling for giving confessed terrorists the opportunity to walk out of jail on a ‘mere technicality’.

Certainly, disappointment and anger at the majority Constitutional Court decision are a natural reaction from anyone who hoped that Indonesia’s courts would produce a clear, certain and just resolution to an undeniable human tragedy. Many people preferred the opinion of the four minority judges that justice in this case demanded deviation from the constitutional guarantee. That said, two points deserve to be made. First, the Constitutional Court decision in no way suggests or implies that the Bali bombers will be able to walk out of jail with impunity. While the bombers’ actions did not constitute an offence under the anti-terrorism law at the time they occurred, there can be little doubt that their actions would be punishable as crimes under Indonesia’s ordinary criminal code.

Secondly, since when is a constitutional right a mere technicality? And when is it okay to allow a political interpretation of justice to replace known laws and constitutionally-guaranteed liberties as the standard of legality?

It is almost conventional wisdom that the lack of a strong constitution, incorporating fundamental guarantees of rights, facilitated the rise of Suharto’s repressive New Order regime. At present, Indonesia is still trying to entrench government based on the rule of law and avert any reversion to authoritarianism.

The nine judges, all men, of Indonesia’s Constitutional Court, have been entrusted with a key role in restoring constitutional government in Indonesia. The anti-terrorism law decision — decided ultimately by only one man’s opinion — hints at how difficult a task this may ultimately be.

Constitutions and courts

So what exactly is a Constitutional Court, and what does it do? The short (but fairly unhelpful) answer is that it is the institution which enforces the constitution.

At the foundation of a Constitutional Court is the ideal of a government limited by law. Such a court assumes a certain kind of political system, one in which the members of the polity (and most importantly, the power-holders) agree that power should be exercised in accordance with the terms of a predetermined political consensus, and submit to this consensus being enforced upon them.

The consensus — essentially the rules of politics — is set out in a written constitution. The ‘enforcer’ is the Constitutional Court. When making a ruling of unconstitutionality, the Constitutional Court is saying that even the most powerful executive or legislative institution — a president or parliament — has exercised its power wrongly and must be corrected.

The notion of an Indonesian Constitutional Court is not new. The idea was first proposed in 1945, when Indonesia declared independence. It resurfaced in the early 1950s during the brief period of parliamentary government, and yet again in the mid 1960s when Sukarno’s Guided Democracy regime was overthrown by Suharto’s New Order. However the idea consistently lacked the political support needed to make it reality. Indonesia’s power-holders didn’t want a watchdog telling them when they were wrong. And they certainly didn’t want to have their powers limited, by law or otherwise. Indonesian governments were populist, alarmist, militarist and developmentalist. They were not constitutionalist.

Change came in 1998, when Suharto’s corrupt, unaccountable, repressive regime committed the final sin of becoming unresponsive, and imploded. The collapse of the New Order did not quite bring about a renaissance in Indonesia’s legal and political cultureˆ But it did create an opening for pro-reform forces to reassert themselves politically, both through the parliament and civil society.

In 1999, following fresh legislative elections, Indonesia’s supreme legislative institution, the MPR (People’s Consultative Assembly), embarked on a project to reform Indonesia’s dysfunctional constitutional system. The Constitutional Court — in Indonesian, the Mahkamah Konstitusi — is part of the proposed solution.

The source of the Constitutional Court’s powers is Article 24C of the amended Indonesian Constitution. The provision was enacted by the MPR in 2001, and provides the Court with the power to review the constitutionality of laws (specifically, legislation passed by the People’s Representative Council, or DPR), to determine jurisdictional disputes between key state institutions, to decide motions for the dissolution of political parties and to resolve disputed election results. The Court is also required to give its opinion in relation to a motion for the dismissal of the president or vice president.

The Court has nine members. The DPR, Supreme Court and the president each select three members. The current bench — comprising Dr Jimly Asshidiqie (Chief Justice), Dr H M Laica Marzuki (Vice Chief ustice), Lieutenant General H Achmad Roestandi, H Abdul Mukthie Fadjar, Dr H Harjono, Ahmad Syarifuddin Natabaya, I Dewa Gede Palguna, Maruarar Siahaan and Soedarsono — was sworn in on August 16, 2003, and will serve a five year term, open to renewal once. Selected for their expertise in constitutional affairs, the bench combines experience in academia, government, parliament and the military. Only two of the members are formally trained as judges.

A difficult balance

The powers of the Court are framed to address two major reform era demands. The first is the need for an independent arbiter capable of resolving electoral and inter-institutional disputes, an issue which has been problematic since the breakdown of Suharto’s all-powerful presidency. The second is the demand to prevent any reversion to absolutist government. The Constitutional Court therefore stands symbolically as the highest enforcer of a governmental system based on the supremacy of law.

Interestingly though, many proponents of the Constitutional Court have assigned it an even wider role: as a leader in remaking Indonesia’s political culture. Various lawyers and intellectuals writing in the Indonesian media have suggested that the Court shouldn’t simply ensure law-based government, but also play a correctional ‘policy’ function. They point to the Court’s potential to use its power to review laws, and hope that it will flexibly interpret Indonesia’s comprehensive new catalogue of civil, political and social rights, in order to intervene wherever laws deviate from popular aspirations.

Counter-intuitively then, some rule of law advocates have presented the unelected, nine-member court as the champion of democratic values, while they portray ‘representative’ legislative institutions as tainted by self-interested elite bargaining.

But balancing the roles of guardian of the constitution and national conscience may prove to be too much for the Constitutional Court. During the Suharto period, Indonesia’s judiciary developed a reputation for being corrupt and politically subservient. The Constitutional Court now faces the challenge of rebuilding public confidence in the judicial system, and cultivating public awareness of constitutional rights and the value of legal process. At the same time, it is expected to serve popular aspirations for justice and political ‘representation’.

The anti-terrorism law decision demonstrates the potential dilemma faced by the court. The majority displayed their commitment to upholding the constitution, but they were criticised for providing an unjust outcome. The minority demonstrated that the amended Constitution still leaves room to move around the strict legal rules when political considerations so demand. The Catch-22 is that both judgments could have the effect of undermining confidence in the Court.

The Court’s success or failure may depend on it walking the very fine line of being politically sensitive when engaging in constitutional interpretation, without becoming arbitrary in its judgments, or worse, captive to the political directives of the eÌecutive government. An independent, and trusted, Constitutional Court could be a powerful force in cultivating an Indonesian democracy based on more than merely majoritarian force or elite politicking.

One Indonesian commentator has described the Constitutional Court as the ‘nine doors to constitutional justice’. As it is, we’re yet to see quite what’s on the other side.

Selina Wrighter (swri3847@mail.usyd.edu.au) studies law and arts at the University of Sydney.