During the constitutional reform process from 1999 to 2002, the 1945 Constitution underwent major revisions. Although the formal process of constitutional amendment ended in 2002, the creation of the Constitutional Court in 2003 prompted the process of informal amendment. This chapter argues that the main driving force of informal constitutional change is the jurisprudence of the Constitutional Court. Since its beginning, the Constitutional Court has fostered constitutional change through its interpretation of the written text. For instance, the Court’s interpretation of Article 33 on the Economic Clause has changed the scope and meaning of the Economic Clause. Similarly, in the area of electoral law, the Court has interpreted the meaning of some provisions in the Constitution beyond the written text. The role of the Constitutional Court in fostering informal constitutional change has occurred not only through the interpretation of the text, but also through the use of procedural tools, and it has even invented new procedural rules. In sum, this chapter argues that the Constitutional Court has become the primary actor in the silent transformation of the 1945 Constitution through informal constitutional change.
This Article addresses the constitutional convergence theory by examining the standing rule in the Indonesian Constitutional Court. The central investigation of this paper is whether the application of standing doctrine in the Indonesian Constitutional Court is evidence of constitutional convergence or of borrowing? This paper argues that the Constitutional Court jurisprudence on standing indicates that constitutional convergence has never taken place but rather the Court has engaged in constitutional borrowing. Legal borrowing on standing is limited to the carbon copy of the ve prong standing tests of the U.S. model, but in reality standing doctrine in the Indonesian Constitutional Court is not based on the private rights model of adjudication. Although the Court allows individuals to bring cases before the Court, it is rather a uasi public model of standing, in which claimants no longer have standing only to vindicate their own private rights but can also sue to vindicate public interests. Standing requirements also allow the judges to review many highly sensitive political cases, and to some extent it enables the Court to second guess the decisions of the di erent branches of government.
Previous studies on the development of socio-economic rights in Indonesia heavily focus on the Constitutional Court’s decisions in upholding the rights. But there is still minimum study on the political economy behind the development of socio-economic rights in Indonesia. This article will analyze the development of socio-economic rights through the lenses of the right to social security. This article relies on two major theoretical frameworks to analyze the development of the right to social security in Indonesia. The first theoretical framework is the authoritarian constitutionalism in the economic sphere. The second theoretical framework in this article is Kathrine Young’s theory of the construction of socio-economic rights. This article postulates that the rights to social security has been constitutionalized but not constituted in Indonesia for several reasons. First, and foremost, the legacy of authoritarian constitutionalism that prioritizing economic growth over the fulfilment of social economic rights. The “growth” ideology has contributed to the discrepancy between the constitution and reality, in which the government merely considers protection of socio-economic rights as extra cost, which will hamper the growth of the economy. Second, the lack of philosophical and comparative analysis in the interpretation of rights to social security. Third, the transformation of the Court as a detached court in the enforcement of the rights to social security. The element of detachment is clearly seen in the Court’s too much deferral to the Executive and Legislative branches in defining the scope and meaning of the right to social security. Finally, the failure of social movement to create a new narrative on injustice and the importance of rights to social security.
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