Will a positive start for the Constitutional Court lead to practical changes for ordinary citizens?

Simon Butt

The post-Suharto period has witnessed significant reforms to Indonesia's legal and judicial systems, including the establishment of the Constitutional Court in 2003. The court has shown that it takes its role seriously, but future challenges await it.

The Constitutional Court is the only Indonesian court in over 50 years to have been permitted to review the constitutionality of statutes. In many countries, this 'judicial review' is considered a crucial element of the separation of powers and the rule of law. Through judicial review, an independent institution - usually the highest court of a nation or a specialist court - attempts to ensure that the country's parliament does not exceed the powers granted to it under the Constitution. In this way, lawmakers are subject to some accountability. Judicial review is considered particularly important in countries with a constitution containing a bill of rights - that is, a list of citizens' human rights that the state should not breach. Without this check on legislative power, parliaments might ignore these human rights on purpose or by mistake in statutes they enact.

Promising early signs

The Constitutional Court has already demonstrated that it considers itself independent of other arms of government and that it will enforce Indonesia's new constitutional bill of rights to protect citizens' rights.

First, Law No. 24 of 2003 ('the Constitutional Court Law') - the statute which established the court - states that the court can review only statutes passed after the first round of constitutional amendments, made in 1999. However, in several cases, a majority of the court has held that the Constitution - not the Constitutional Court Law - determines its jurisdiction. Because the Constitution does not restrict the statutes the court can review in the same way, the court has ignored the Constitutional Court Law and reviewed laws enacted as long ago as 1987. In years past, an Indonesian court would perhaps have quietly bowed to the will of the legislature and simply refused to review cases enacted before 1999.

Second, most of the human rights contained in Indonesia's Constitution are subject to Article 28J(2). This article states that citizens' human rights can be limited in the interests of 'morality, religious values, security and public order', which would seem to offer much scope for government to limit citizens' rights. The only exceptions are the rights to life, to be free of torture, to think freely, to embrace a religion, to be free from slavery, to be recognised as an individual before the law, and to be free from being subject to retrospective laws. These rights 'cannot be limited under any circumstances', according to Article 28I(1) of the Constitution.

A less independent or capable court might use the very broadly-worded Article 28J(2) to accept legislation as constitutional if it protects almost any perceived public interest, even if it appears to contradict one of the rights not protected by Article 28I(1). Yet, even though the Constitutional Court has allowed the People's Representative Council (DPR) to employ Article 28J(2) to override rights conferred by Article 28 in some cases, in others it has struck down legislation that it believes violates those rights.

Curbing state power

In 2004, a group of people, some of whom had been imprisoned after being accused of involvement in the 1965 coup, asked the Constitutional Court to review a provision in a statute that prohibited them from being nominated in elections for Indonesia's central and regional parliaments. The court invalidated this provision because it 'denied the human rights of citizens' and 'discriminated on the basis of political conviction', thereby breaking several provisions of the Constitution. These included Article 27(1) of the Constitution, which provides citizens with equal treatment before the law; and Article 28I(2), which provides the right to be free from discriminatory treatment.

Another conspicuous example was the case of Masykur Abdul Kadir, one of those convicted for involvement in the Bali bombings of 2002. The DPR had enacted a statute that declared that those accused of involvement in the bombings could be investigated and prosecuted under Indonesia's Terrorism Law, even though the law had been enacted after the bombings had taken place. The accused argued that the statute breached his 'absolute' right not to be subject to retrospective laws. The court agreed. This drew domestic and international criticism for 'assisting' terrorists, but attracted praise in legal circles for applying and enforcing the Constitution.

Most notable, perhaps, has been the court's willingness to recognise citizens' rights and state obligations that the court believes are implied by the Constitution, but not explicitly mentioned in it.

For example, the Constitution's preamble states that the government is to 'protect all Indonesians and their native land, and to further public welfare, the intellectual life of the people, and to contribute to the world order of freedom, peace and social justice.' In separate cases, the court has revealed that the preamble requires the state to protect its citizens from corruption, and must take steps to eradicate it; and from crime, including gross violations of human rights. The court has also used the preamble to justify the censorship of broadcasts and the protection of the domestic broadcasting industry from foreign domination.

Legal aid and the rule of law

The Court has also been willing to draw implications from the Constitution's adoption of the 'negara hukum', usually translated as 'the rule of law'. In one case, lecturers from Malang who worked at a non-profit university legal clinic providing community legal services and work experience for students, asked the court to review the Advocates Law. The law prohibited those not registered as an advocate from 'working as an advocate', including providing legal advice. As a result, police had prevented some lecturers from accompanying their clients during interrogations because they had been unable to produce evidence that they were registered.

Declaring this provision invalid, the court stated that … the right to legal assistance, as a part of human rights, must be considered a constitutional right of citizens, even though the Constitution does not explicitly regulate or mention it. The state must, therefore, guarantee the fulfillment [of this right] … [This provision may cause] legal uncertainty and injustice for many members of the community who need legal services and assistance … Article 31 could impede many poor people from using the services of advocates for financial reasons or because they live in an area in which there are no practising advocates. This would further restrict or close off the community's access to justice. However, access to justice is an inseparable part of another feature of the negara hukum - that the law must be transparent and accessible to all, as is recognised in developments in modern thinking about negara hukum …

Real hope or false dawn?

From its very first case, the Constitutional Court has actively interpreted the Constitution in line with what it claims be the Constitution's spirit - in particular, the rule of law and the state's obligation to 'protect the people'. In the process, the court has 'uncovered' new constitutional principles, citizens' rights and state obligations - a bold step, particularly for a judiciary that many in the past have characterised as conservative and subservient to government.

How, then, can this 'radicalism' be explained? In short, the court appears sincerely concerned to uphold the reformed Constitution. The court is composed mainly of academics. Some of them - most notably, its chairperson, Prof. Dr Jimly Asshiddiqie - are scholars of constitutional law and have a good understanding of the importance of rigorously-performed judicial reviews and ideas about how to interpret provisions of the Constitution. The court is also quite strongly supported by the academic and NGO community, at least partly because of the court's apparent integrity, and because its decisions are better reasoned than those of other Indonesian courts and are not tainted by allegations of corruption or other interference.

However, while this activism is certainly a welcome change from Indonesia's tradition of judicial impotence, there are concerns that the court might have overstepped the mark. To some, its decisions are too radical or are unworkable. The court runs the risk of not being taken seriously.

An example is the court's attempt at establishing the right to legal aid. How can the court - with no resources of its own to allocate - create such a right? Who is going to pay for, administer, and provide the legal assistance? Who will the legal aid be made available to? Does the right apply in all cases - criminal, civil, administrative and religious? Can the right apply to vexatious litigants or unrealistic claims? Rights to some legal aid already exist in the Code of Criminal Procedure and Human Rights Law - does the new 'right' replace these or just strengthen them?

The Constitutional Court is a group of nine judges not directly elected by the people. It reviews legislation passed by a parliament of several hundred democratically elected people with resources much greater than its own. Furthermore, it operates in a new institutional environment: lawmakers are not accustomed to being limited through judicial review. However, the court relies on the government to voluntarily adhere to its decisions. If the court does not sufficiently anticipate the practical difficulties that may arise from its decisions then it may lose respect, credibility and, eventually, the opportunity to protect the constitutional rights of Indonesians. ii

Simon Butt (indolaw@bigpond.net.au) is writing a PhD on Indonesia's Constitutional Court at the University of Melbourne, and is associate director of the Asian Law Group.