The Indonesian Constitutional Court and Informal Constitutional Change

Abstract

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.

Courts and authoritarian populism in Asia: Reflections from Indonesia and the Philippines

“…Indonesia's Constitutional Court ( Makhamah Konstitusi or MK) was established in 2003 as part of sweeping post‐Suharto constitutional amendments and as a direct response to the political transition after four decades of authoritarian rule (Butt, 2015). Designed as a specialized Kelsenian‐type apex court to adjudicate constitutional questions, its primary function is constitutional review, although its power also includes the resolution of electoral disputes, settling of disputes over the powers of state institutions, deciding on the dissolution of political parties, and supervising impeachment (Hendrianto, 2010; Stockmann, 2007). Drawing on its far‐reaching powers amidst a volatile democratic polity, the Court has demonstrated a high degree of judicial activism compared to other high courts in the region (Butt et al, 2016).…”

“…A multitrack appointment process designed to safeguard the Court from undue influence and prevent excessive loyalty to a single appointing authority has been frequently cited as a primary catalyst for this judicial conduct (Hendrianto, 2018). Under the current constitutional regulations, the responsibility for appointing justices to the Constitutional Court is divided equally among three entities: the parliament, the President, and the Supreme Court.…”

“…For instance, it resisted parliamentary attempts to limit the exercise of its jurisdiction, imposed obligations on the state for the protection of citizens from corruption and the right to a fair trial, access to justice, and legal aid, engaged in defining the place of Islam in Indonesia in the policy process; it also condemned government budgets that failed to allocate sufficient funds for education and protected religious, ethnic and sexual minorities from the government (Butt, 2015). Moreover, the Court's regular involvement in contentious electoral matters—be it presidential, regional, or local—has demonstrated a particular degree of activism (Hendrianto, 2018). This is evident in its consistent alignment to ensure broad access to competitive elections, resulting in a considerable impact on the quality of democratic governance in the country (Mietzner, 2010).…”

Strengthening Indonesia’s Regional Representative Council Through Judicial Review by the Constitutional Court

“…The binding principle means the Constitutional Court's decisions are binding on all parties, including state officials, state institutions and the general public, so there is an obligation to comply with its decisions. However, the Court does not have power to enforce its decisions (Butt, 2015;Hendrianto, 2018).…”

The Indonesian Constitutional Court Approaches the Proportionality Principle to the Cases Involving Competing Rights

“…These articles show that the culture of human rights law must consider the rights and obligations of every individual, society, and State to create because it provides a "blank check" for the State to restrict citizens' fundamental rights. In addition, they designed it to limit the constitutional protection of rights by requiring that these rights be equal to the State's interests (Hendrianto, 2020).…”