Indonesia: General elections test the amended Constitution
and the new Constitutional Court
Susi Dwi Harijanti* and Tim Lindsey**
The Indonesian constitutional amendments—Constitutional Court—general
elections—Dewan Perwakilan Rakyat (DPR)—Dewan Perwakilan Daerah
(DPD)—Majelis Permusyawaratan Rakyat (MPR)
On August 10, 2002, the Majelis Permusyawaratan Rakyat (MPR) or
People’s Consultative Assembly, Indonesia’s highest elected assembly, completed the last in series of four major constitutional amendments that had
begun 1999. The result—to the surprise of many skeptical commentators—
was a radically revised and newly liberal democratic political system.1
The amendments established totally new organs of state—including a
powerful new Constitutional Court; the Dewan Perwakilan Daerah (DPD) or
Regional Representatives Council, a form of senate to represent Indonesia’s
thirty provinces; and a judicial commission, to supervise judicial reform.
The amendments also reformed existing institutions, laws, and mechanisms,
including a dramatic expansion of human rights provisions to embrace most
of the Universal Declaration of Human Rights; the introduction of a mechanism for the direct election, for the first time, of the president and vice president;
the abolition of appointed members of the Dewan Perwakilan Rakyat (DPR)
or legislature and, thus, the end of the longstanding practice of reserving seats
for the military; the redefinition and scaling down of the MPR’s role; the abolition of the controversial Elucidation to the 1945 Constitution;2 and finally,
the strengthening of the troubled post-Soeharto regional autonomy process
doi:10.1093/icon/moi055
* Lecturer, faculty of law, Padjadjaran University, Indonesia, and Ph.D. candidate at the University of
Melbourne.
** Professor of Asian Law, faculty of law; director, Asian Law Centre; deputy director, Center for the Study of
Contemporary Islam, all at the University of Melbourne.
1
See, e.g., Kurniawan Hari and Tertiani ZB Simanjuntak,Time Running Out for Constitutional
Reforms, THE JAKARTA POST, August 6, 2002, available at http://www.thejakartapost.com.
2
The Elucidation is the formal explanatory memorandum that accompanies most Indonesian
regulations and is usually read as part of the regulation itself. The Elucidation to the 1945 Constitution, however, has always been somewhat controversial; when the Constitution officially
came into force on August 18, 1945, the Elucidation was not included. It was later promulgated
in the Government Gazette in 1946. It has since been argued that it was, in fact, originally not
intended to be a formal Elucidation and was merely the working notes of its key drafter, Professor
Raden Soepomo.
ª The Author 2006. Oxford University Press and New York University School of Law.
All rights reserved. For Permissions, please email: [email protected]
I·CON, Volume 4, Number 1, 2005, pp. 138–150 doi:10.1093/icon/moi055
138
Indonesia
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through the grant of formal constitutional status for the transfer of power to
regional authorities.
Many critics since have argued that, despite the amendments’ transformation of the political and legal system, the constitutional process was flawed,
incomplete, and full of loopholes.3 One leading constitutional scholar, Professor Jimly Asshiddiqie, argued, for example, that ‘‘the absence of an adequate
process of synchronization and harmonization between old and new provisions would create many controversies.’’4 There is truth in this, but, as this
essay will argue, the Constitutional Court created by the amendments—and
led, ironically, by Asshiddiqie as Chief Justice—has played a major role in
resolving these problems.
In making this case, the present paper will focus on the general election of
April 5, 2004, in which Indonesians chose the members of the DPR or
national legislature, the DPD, and the provincial and local DPRDs (the Dewan
Perwakilan Rakyat Daerah or regional legislatures). Because members of the
DPR and DPD, sitting together, now form the MPR, its membership was also
determined by the same election. The election was, at once, both the first test
of the amended Constitution itself and the first occasion on which the
Constitutional Court established by those same amendments could implement
its mandate ‘‘to resolve disputes on the general election’’ (art. 10 para. [1] d,
Law no. 24 of 2003), and thus exert its authority over the new system.
1. The 2004 elections: Democratic complexity
Many observers have claimed that Indonesia’s 2004 elections were the most
complex and challenging in world history,5 even when compared with the
legislative election in India of the same year.6 In the end, twenty-four political
parties competed to fill almost 16,000 seats in legislatures at the national,
provincial, and district levels. Parties and candidates sought the votes of
3
See, e.g., Without Harmonization the 1945 Law Amendments Will Create Problems, KOMPAS, July 29,
2002, available at http://www.kompas.com, and Several Articles in Amended Laws Found To Be Too
Reactive, KOMPAS, August 6, 2002, available at http://www.kompas.com.
4
Without Harmonization the 1945 Law Amendments Will Create Problems, supra, note 3. See, Prof
Dr Jimly Asshiddiqie: UUD 1945 dan Perubahannya Perlu Ditata Kembali [The 1945 Constitution
and its Amendments Must Be Revised Again], KOMPAS, April 18, 2001, available at http://www.
kompas.com.
5
See, e.g., Allan Wall, 2004 elections have it all: Size and complexity, THE JAKARTA POST, February 6,
2004, available at http://www.thejakartapost.com, and also see, Pemantau Pemilu Eropa: Pemilu di
Indonesia Paling Rumit di dunia [European Election Monitor: Indonesia’s Election is the Most Complex
in the World], KOMPAS, July 1, 2004, available at http://www.kompas.com.
6
The Indian election aimed to elect only members of the Lok Sabha, the national legislature,
whereas the Indonesian process elects members for legislatures at the national, provincial, and
district levels and for the new national senate, the DPD. See http://www.eci.gov.in (detailing
information regarding the Indian elections of 2004).
140 Int’l J Con Law, Vol 4, No 1 (Jan 2006)
S. D. Harijanti and T. Lindsey
more than 140 million voters in more than 2,000 electoral districts.7 Accordingly, around 500,000 voting stations were required, and approximately 900
million ballot papers were printed, distributed, and retrieved.8 This already
highly complex process was made even more difficult by the nature of
Indonesian geography—over 17,000 islands stretched over five thousand
miles along the equator—and by the already poor quality of infrastructure
across the archipelago, which was further degraded by the economic crisis
that had begun in Indonesia in 1997.9
This election was only one of three that Indonesia undertook in a single
year in order to create its new government. The second was the first round
in the election of a president and vice president, which took place on July 5.
Because no candidates achieved both 51 percent overall and at least 20 percent in half of Indonesia’s thirty provinces, the third election for 2004 was the
second-round runoff between the two highest-scoring presidential tickets,
which took place on September 20 and resulted in the election of a new leader, Susilo Bambang Yudhoyono, with more than 60 percent of the vote.
The legislative election of April 2004, however, was particularly challenging because it involved an entirely new electoral system, which introduced,
first, an open list proportional representation system for the DPR and the
provincial legislatures or DPRDs, and, second, a single nontransferable vote
system for the new DPD, or regional senate. The first round of the presidential
election, however, had its own problems. There were, for example, concerns
regarding invalid paper ballots, because many voters did not unfold the ballots properly, making two holes when they punched their preferred candidates, thus invalidating their vote. The Electoral Commission, however,
quickly issued a ruling that such ballots should be accepted. This led to a
delayed counting process as recounting was carried out in many different
polling stations. The decision to recount was eventually tested by the Constitutional Court on the motion of the losing candidate, the former general
Wiranto, and the objection was dismissed for lack of evidence.
Against the odds, and despite the obstacles just described, the elections
were generally successful, with most reports agreeing that they were essentially free and fair and little marred by violence or intimidation.10 Likewise,
the Constitutional Court effectively resolved electoral disputes that could
have derailed the process. Together, these facts are evidence of both the
strength of Indonesia’s transition from authoritarianism under Soeharto to
7
See http://www.kpu.go.id (detailing information regarding Indonesian elections).
8
Wall, supra note 5.
9
Id.
10
See, e.g., LEGISLATIVE ELECTIONS IN INDONESIA ARE ‘‘LARGELY FREE AND FAIR’’ ACCORDING TO INITIAL
ASSESSMENT BY JPPR OBSERVERS, (2004), available at http://www.asiafoundation.org; STEPHEN
SHERLOCK, CONSOLIDATION AND CHANGE: THE INDONESIAN PARLIAMENT AFTER THE 2004 ELECTIONS,
(2004), available at http://www.cdi.anu.edu.au.
Indonesia
141
a functioning, open democratic system and of public acceptance of the new
system, despite its complexity. With this in mind, we now turn a more
detailed account of the key legislative bodies in the new system.
2. The DPR: From a rubber stamp to hegemon?
The constitutional amendments undoubtedly enhance the DPR’s position by
making a range of radical changes, such as the grant of a monopoly on the
production of statutes, the requirement that all DPR members now be elected,
and the recognition of fundamental rights exclusive to the DPR.
As to lawmaking, the DPR’s role in drafting legislation has shifted from
simply approving statutes to becoming the sole body that ‘‘shall hold power
to make statutes.’’11 Some history is required here to grasp the significance
of this reform. The original version of 1945 Constitution granted the president the power ‘‘to make statutes in agreement with the DPR.’’ The vagueness of this provision was exploited by successive administrations, with the
result that the president became the key player and the DPR was famously
rendered a ‘‘rubber stamp.’’ A. Hamid S. Attamimi has even argued that,
in practice, it was the president and not the DPR who held the sole power
to make statutes,12 since under Soeharto almost all bills emanated from
the administration, and almost none were ever rejected by the DPR.
Compounding matters, the president also enjoyed a broad discretionary
power to sign or reject bills passed by the DPR, thus exercising a full veto.
By contrast, the amended Constitution now stipulates that if a bill has
obtained assent from the DPR, the president should sign it into law within
thirty days. In the event that the president fails to do so, the bill will, in any
case, be deemed duly enacted.13
In addition, the presidential powers of amnesty and of ‘‘abolition’’ (the
power to drop charges) are now subject to ‘‘the advice of the DPR,’’14 and
the president must also consider its advice when appointing ambassadors
and receiving foreign ambassadors.15 These are considerable dilutions of presidential discretion, and, in practice, they have already become major hurdles
for the executive in conducting international relations, according to Mohammad Fajrul Falaakh,16 especially as regards receiving foreign ambassadors.
11
Art. 20 para. (1) of the 1945 Constitution as amended by the First Amendment.
12
Bagir Manan, DPR, DPD dan MPR dalam UUD 1945 Baru [DPR, DPD and MPR in the New
1945 Constitution] (2003) 19–20.
13
Art. 20 para. (5) of the 1945 Constitution as amended by the Second Amendment. This is
change seen by many as based on procedures from the United States.
14
Art. 14 para. (2) of the 1945 Constitution as amended by the First Amendment.
15
Art. 13 paras. (2) and (3) of the 1945 Constitution as amended by the First Amendment.
16
Mohammad Fajrul Falaakh, PRESIDENSI DAN PROSES LEGISLASI PASCA REVISI KONSTITUSI (PARLEMENLEWAT PINTU BELAKANG?) [The PRESIDENCY AND THE LEGISLATIVE PROCESS
TARIANISME
142 Int’l J Con Law, Vol 4, No 1 (Jan 2006)
S. D. Harijanti and T. Lindsey
The DPR has given the clause ‘‘having regard to the advice of the DPR’’17 a
broad interpretation, claiming the right to subject candidates for ambassadorship to a ‘‘fit and proper test.’’ This has proved to be a time-consuming procedure, with long waits to fill ambassadorial posts causing great frustration
to President Megawati’s minister of foreign affairs, Hasan Wirayuda.18
With the Second Amendment in 2000, the DPR became a fully elected
body,19 and the long-standing practice of the executive effectively appointing
military and police representatives came to an end. These amendments also
clarified the DPR’s legislative and supervisory functions, providing for the
right to approve the national budget;20 a clear right of interpellation, investigation, and opinion;21 and a prima facie immunity from prosecution for its
members.22
The expansion of the powers, described above, has led many scholars to
conclude that the DPR has become Indonesia’s supreme organ of state,23 a
position it certainly did not enjoy before the amendments, when it was
usually seen as subordinate to both the MPR and the government. The
amendments now leave both the president and the MPR, which the president
previously controlled, with a much reduced legislative role, and this has led,
in turn, to the popular trope that the Indonesian system has gone from being
‘‘executive heavy’’ to ‘‘legislative heavy.’’ This is a transformation that some,
including Asshiddiqie, have described as an overreaction to the overly powerful presidency under Soeharto—and dangerous, in that it may overly diffuse
power and create a less efficient system.24
POST-CONSTITUTIONAL REVISION (PARLIAMENTARIANISM THROUGH
www.ugm.ac.id/seminar/reformasi/i-fajrulfalaakh.php.
THE
BACKDOOR?)], available at http://
17
Art. 13 para. (2) of the 1945 Constitution as amended by the First Amendment.
18
Falaakh, supra note 16.
19
Art. 19 para. (1) of the 1945 Constitution as amended by the Second Amendment.
20
Art. 20A para. (1) of the 1945 Constitution as amended by the Second Amendment.
21
Art. 20A para. (2) of the 1945 Constitution as amended by the Second Amendment. The right
of interpellation means the right of the DPR to request an explanation from the government. In
the past, this has been used as the basis for impeachment and dismissal of high state officials,
including, in Abdurrahman Wahid’s case, the president.
22
Art. 20A para. (3) of the 1945 Constitution as amended by the Second Amendment.
23
See, e.g., Saldi Isra, ‘Amandemen Lembaga Legislatif dan Eksekutif: Prospek dan Tantangan’
[Amending Legislative and Executive Institutions: Prospects and Challenges] (2003) 49/XXVI/
III UNISIA 227.
24
Jimly Asshiddiqie, REFORMASI MENUJU INDONESIA BARU: AGENDA RESTRUKTURISASI ORGANISASI
NEGARA, PEMBARUAN HUKUM DAN KEBERDAYAAN MASYARAKAT MADANI [REFORM TOWARDS A
NEW INDONESIA: AGENDA FOR RESTRUCTURING STATE ORGANIZATIONS, LEGAL REFORM AND
EMPOWERMENT OF CIVIL SOCIETY], available at http://www.theceli.com.
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143
3. The DPD: Not quite bicameral?
A further major reform has been the establishment of the DPD as a type of
senate for the provinces, according to chapter VIIA of the amended Constitution. This new organ was designed to allow regional communities to play
more-active roles in governance, in line with the post-Soeharto revival of
regional autonomy newly enshrined in the Constitution.25 The DPD has
broad powers ‘‘to submit laws to the DPR’’26 and ‘‘to participate in the discussion of bills related to regional autonomy, central–region relations, the formation, expansion and merger of regions, the management of natural resources
and other economic resources, dealing with financial balance between the
center and the regions.’’27 It also has the right to advise the DPR concerning
bills on matters of the state budget, taxation, education, and religion28 and an
additional right to oversee and to submit its findings to the DPR on the implementation of these matters.29
The membership of the DPD is determined by the direct election of individuals from each province to represent the interests of that province in
national affairs. In this sense, the DPD can be seen as an institutional
reform of the dysfunctional regional representatives (utusan daerah) system
that prevailed in the Soeharto-era MPR, when a small group of regional
representatives were appointed to the MPR, essentially at the president’s
discretion. The direct nature of the selection of DPD members under the
new system means that DPD members may well be able claim greater democratic legitimacy than DPR members, who do not represent electorates at
all and are not chosen on their own merits but, rather, solely as national
representatives of their respective parties.30 Against this, however, the DPD
is not a true ‘‘upper house’’ because its limited powers mean that it merely
complements, rather than supplements, the DPR.31 The DPD does not, for
example, have an autonomous right to make laws; it can only submit
draft bills to the DPR. The new Indonesian system is, therefore, not strictly
bicameral.32
25
Bagir Manan, supra note 12, at 53.
26
Art. 22D para. (1) of the 1945 Constitution as amended by the Third Amendment.
27
Art. 22D para. (2) of the 1945 Constitution as amended by the Third Amendment.
28
Art. 22D para. (2) of the 1945 Constitution as amended by the Third Amendment.
29
Art. 22D para. (3) of the 1945 Constitution as amended by the Third Amendment.
30
Tim Lindsey, Indonesian Constitutional Reform: Muddling Towards Democracy, 6 SINGAPORE J.
INT’L & COMP. L. 249 (2005).
31
32
See, e.g.,Manan, supra note 12, at 4, Isra, supra note 23, at 225–26.
See, e.g., Jimly Asshiddiqie, Format Kelembagaan Negara dan Pergeseran Kekuasaan dalam UUD
1945[The Format of State Organs and Shifting Powers in the 1945 Constitution] (2004) 52–54.
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S. D. Harijanti and T. Lindsey
A further potential problem regarding the DPD may be found in the
absence in the amended Constitution of any detailed stipulation of the DPD’s
rights and, in particular, the rights of its members. This is seen, for example,
in the absence of any provisions granting immunity for DPD members matching that granted to members of the DPR.
The ambiguity of the regime governing the DPD may be deliberate, ensuring that the DPD’s powers do not, in fact, rival those of the DPR; after all, the
MPR that drafted the Third Amendment was dominated by DPR members.
The ambiguity may also reflect the fact that the drafters looked to the Senate
provisions from the 1949 Constitution of the Federal Republic of Indonesia as
the model for this new body.33 Because most Indonesians regard the states
formed under that Constitution as puppet states of the departing Dutch government, and thus as implicit threats to Indonesian unity, there was a strong
desire to dilute the 1949 model to prevent a de facto quasi-neocolonial federalism.34 Whatever the motivations for the restrictions on the power of the
DPD, however, it is clear that they are very significant. If they remain in place
they could frustrate its mandate of representing regional interests against the
center.
4. The redefining of the MPR
As already explained, members of the DPR and the DPD together constitute
the membership of the MPR, and it, too, has been reinvented by the amendment process, albeit in a weakened form.
Article 1, para. (2), of the original 1945 Constitution established the
MPR as the highest state organ and charged it with fully exercising the
people’s sovereignty. This included ‘‘distributing’’ powers to other state
organs,35 a controversial doctrine that was interpreted during the New Order
(1966–98) to mean that the MPR was the only state organ exercising
sovereignty. This allowed it virtually unfettered power over the entire state
system, a power routinely exploited by the presidents who acquired control
over the MPR through the system of appointment of many of its members.
33
Manan, supra note 12, at 4.
34
As a result of the so-called Roundtable conference negotiations held in Den Haag from
August 23 to November 2, 1949, to settle hostilities between the new Republic of Indonesia
and the returning Netherlands colonial forces who had sought to reclaim their interests in the
East Indies, the Indonesian and Dutch governments agreed that sovereignty would be transferred from the Dutch to a federal United States of Indonesia. This officially came into being on
December 27, 1949, and included the Republic among its constituent states. On August 17,
1950, the constituent states decided to merge with the Republic of Indonesia thus effectively
dissolving the federation.
35
In Indonesia, this is famous as the doctrine of the MPR supremacy proposed by Padmo
Wahjono, professor in constitutional law at the University of Indonesia.
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145
The now-abolished Elucidation (or Explanatory Memorandum) to the Constitution was usually cited in support of the doctrine of MPR supremacy.
It provided that ‘‘the MPR is the highest authority in the conduct of state
affairs . . . [it] is the manifestation of the people who hold the sovereignty of
the state,’’ and that ‘‘since the MPR is vested with sovereignty of the state,
its power is unlimited.’’ There was, however, an inconsistency as between article 1, para. (2), and its Elucidation, as the former recognized the ‘‘people’s
sovereignty’’ while the latter dealt with ‘‘state sovereignty.’’ Both the Old
and New Order regimes valorized the Elucidation over the article, thus
emphasizing the authority of the state over the sovereignty of the people, an
interpretation that, however debatable in principle, certainly reflected practical politics under Soeharto. The Third Amendment has now reversed this
doctrine, stripping sovereignty from the MPR and stating unequivocally
that it is now ‘‘in the hands of the people and is exercised in accordance
with the Constitution.’’36
Similarly, the commitment that Indonesia ‘‘is to be a state based on law’’
(Rechtstaat or negara hukum), previously contained in the Elucidation, has
now been incorporated into the main document,37 although no further detail
is provided. This is unfortunate, as the meaning of ‘‘state based on law’’ has
been the subject of much debate and, again, controversy, since independence
in 1945. These two reforms, while undoubtedly acts of ‘‘great symbolism,’’
are thus, in the end, perhaps not much more than that.38
A major change in the composition of the MPR reflects, however, a more
concrete shift toward democratic governance. In the past, appointed representatives of provinces, as well as appointed members from so-called ‘‘functional groups,’’ such as ‘‘peasants’’ or ‘‘entrepreneurs,’’ were tacked on to
the DPR in forming the MPR. The practice of appointment created a pervasive
tradition of institutionalized nepotism and was the key to Soeharto’s control
of successive MPRs. For this reason, the Fourth Amendment ended the practice. Members of the MPR now come only from the DPR and DPD and are
chosen solely through election.
As in the case of the DPD, the MPR reforms also failed to produce a bicameral system. While the MPR could have ceased to be a permanent body and
become, instead, merely a joint session of the two constituent houses (the
DPR and DPD),39 in the end, realpolitik reaffirmed the MPR as a permanent
36
Art. 1 para. (2) of the 1945 Constitution as amended by the Third Amendment.
37
Art. 1 para. (3) of the 1945 Constitution as amended by the Third Amendment.
38
Lindsey, supra note 30, at 246.
39
See, Isra, supra note 23, at 227; Dahlan Thaib, Menuju Parlemen Bikameral (Studi Konstitutional
Perubahan Ketiga UUD 1945) [Towards a Bicameral Parliament (Study of the Third Constitutional
Change of the1945 Constitution], 23 JURNAL HUKUM 89 (2003); Andrew Ellis, The Indonesian Constitutional Transition: Conservatism or Fundamental Change?, 6 SINGAPORE J INT’L & COMP. L. 134
(2002).
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S. D. Harijanti and T. Lindsey
body with specific and vital authorities. These include, most significantly for
the purposes of this essay, the exclusive power to ‘‘amend and determine’’
the Constitution (art. 3, para. [1]); to appoint the president and vice president
(art. 3, para. [2]); to remove the president and vice president from office (art.
3, para. [3]); to elect the vice president in a case of vacancy (art. 8, para. [2]);
and to elect the president and vice president in a case of vacancy in both
offices (art. 8, para. [3]). As a result, Indonesia, in reality, has three
houses—DPR, DPD, and MPR—with tension remaining in the distribution
of real power between them but with the DPR apparently dominant.40
It remains to be seen whether these three institutions can achieve, cooperatively, a greater degree of democratic governance. Early indications suggest tensions will persist. For example, when the newly elected members of
DPR and DPD sat, for the first time, as the MPR, on October 1, 2004, a long
debate and tense backroom negotiations led to the amendment of the Standing Orders so as to allow the DPD equal representation in the MPR’s multiple
chairmanship system.41 The DPD is now preparing a proposal to amend the
Constitution to further strengthen its position, but this is sure to meet resistance from DPR members of the MPR.42
5. The Constitutional Court: Implementing the new
constitutional scheme
The Third Amendment established the new Constitutional Court. Article 24C
grants it the power to make the final decision in reviewing statutes (Undangundang) in the light of the Constitution;43 to determine disputes concerning
the authority of the state organs whose power is derived from the Constitution; to dissolve political parties; and to resolve disputes about the results of
a general election.44 It also has the power to make decisions concerning the
opinion of the DPR with regard to alleged violations by the president and/or
vice president of the Constitution—in other words, the power to have the final
say in any impeachment proceedings.45
Some argue that the formation of the Constitutional Court was a response
to the 2000 constitutional crisis when President Wahid became involved in a
40
Asshiddiqie, supra note 32, at 14; Manan, supra note 12, at 5.
41
According to the new MPR’s Standing Orders, the MPR chairs consist of two members of the
DPR and two members of the DPD.
42
DPD, Diharapkan Pun Dicemaskan [DPD, Hoped for and Worried about], KOMPAS, October 14,
2004, available at http://www.kompas.com.
43
According to Art. 24A para. (1) of the 1945 Amended Constitution, the jurisdiction to review
subordinate legislation (below the level of statutes) remains with the Supreme Court.
44
Art. 24C para. (1) of the 1945 Constitution as amended by the Third Amendment.
45
Art. 24C para. (2) of the 1945 Constitution as amended by the Third Amendment.
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147
lengthy stalemate with the DPR resulting in his controversial impeachment
and ultimate dismissal by the MPR.46 This dramatic episode clearly influenced the MPR to create the new Court. However, its formation was also, in
a broader sense, a response to the long absence of any mechanism to review
the constitutionality of statutes and the consequent absence of developed
judicial doctrines of constitutional interpretation that, together, contributed
to the arbitrary and authoritarian nature of Soeharto’s rule.47
Detailed regulations concerning the Constitutional Court were provided in
Law no. 24 of 2003,48 passed by the DPR on August 13, 2003—only four
days before the deadline for the establishment of the Constitutional Court
fixed by article III of Interim Provisions of the Amended Constitution.49
Consisting of eight chapters with eighty-eight articles, this statute deals
with definitions, structures, powers, the mechanism for judicial appointment
and dismissal, and procedural issues.50 In particular, article 45 provides that
dissenting judgments are allowed (art. 45, para. 10). This is an important
development, given that Indonesia is a civil law jurisdiction and dissenting
judgments were virtually unknown before the formation of the Commercial
Court in 1998 and have only recently been allowed in the Supreme Court
(Mahkamah Agung). They are still very rare.
6. The general election cases
The results of the 2004 legislative elections were officially announced by the
Electoral Commission on May 5, 2004.51 Soon after this announcement, several political parties and the losing DPD candidates lodged applications to contest the results.52 Although the right to challenge election results is
recognized in Law no. 24 of 2003, article 74, paras. (2) and (3), it imposes
46
See, e.g., Lindsey, supra note 30, at 260.
47
Id. at 261.
48
Unlike the bill on the Constitutional Court, which gave authority to the National Ombudsman
Commission to act as a filter on applications to the Court, Law no. 24 of 2003 excludes such a role
for the Ombudsman. Complainants can therefore directly lodge applications with the Court.
49
Art. III states that ‘‘The Constitutional Court shall be formed at the latest by 17 August 2003
and before its formation its authority shall be exercised in full by the Supreme Court.’’
50
See, http://www.ifes.org (unofficial English translation).
51
See, http://www.kpu.go.id (detailing information about general elections).
52
According to Art. 74 para. (1) of Law no. 24 of 2003, persons with the right to bring actions
relating to the results of general election are ‘‘(a) an Indonesian citizen competing in the general
election as candidate member of the Regional Representative Council (DPD); (b) a presidential and
vice presidential candidate pair competing in the general election for the presidency and vicepresidency; and (c) a political party competing in the general election.’’
148 Int’l J Con Law, Vol 4, No 1 (Jan 2006)
S. D. Harijanti and T. Lindsey
restrictions on such actions based on an ‘‘effect’’ criteria53 and applies a tight
limitation period of only seventy-two hours from the moment formal results
are announced by the Electoral Commission.
Soon after the swearing in of Asshiddiqie and the puisne judges of the Constitutional Court, the Supreme Court referred pending applications for judicial
review to the new court.54 Asshiddiqie decided, however, to prioritize cases
relating to the 2004 election,55 with the result that the Court has heard—
before the other issues in its list—cases relating to Law no. 31 of 2002,
regarding political parties; Law no. 12 of 2003, regarding general elections;
and Law no. 22 of 2003, on the composition and status of the MPR, DPR,
DPD, and DPRD.
6.1. Disputed returns
As of June 30, 2004, the Court had received a total of 465 cases relating to
the election,56 of which 273 have been decided. These actions were brought
by a mixed group, comprising twenty-three applicants from political parties57
and twenty-one DPD candidates.58 The Partai Amanat Nasional (PAN) or the
National Mandate Party and the Partai Keadilan Sejahtera (PKS) or the Welfare Justice Party dominated the applications, chiefly because both parties
were sufficiently well organized as to be able to draft written evidence and prepare witnesses within short periods.59 Both parties benefited from this efficiency, since they were able ultimately to increase their seats at either the
national, provincial, or district levels through favorable Constitutional Court
decisions.
53
Specifically, these articles provide that an action can be brought to contest results that affect a
candidate elected to the DPD; the determination of a pair of candidates competing in the second
round of the presidential election and the election of such a pair; and the seats won in an electoral
district by a competing political party.
54
Before the establishment of the Constitutional Court, the Supreme Court exercised its powers,
pursuant to Art. III of Interim Provisions of the Amended Constitution (see note 49, supra).
Pursuant to this provision, the Supreme Court had received several applications for review of certain statutes during the period August 2002-August 2003 but did not actually decide any of
them. They were therefore all remitted to the Constitutional Court upon its formation.
55
Mahkamah Konstitusi Prioritaskan Judicial Review Terkait Pemilu [Constitutional Court Prioritizes
Judicial Review Linked to the Elections], KOMPAS, September 19, 2003, available at http://www.
kompas.com.
56
MK Rampungkan Ratusan Sengketa Pemilu Legislatif [CC FInalizes Hundreds of Legislative Election
Disputes], HUKUMONLINE, June 30, 2004, available at http://www.hukumonline.com.
57
Cases brought before the Court covered seats at the national, provincial, and district levels.
See http://www.ifes.org (information regarding the cases involving political parties and DPD
candidates, including summaries of relevant judgments).
58
MK Rampungkan Ratusan Sengketa Pemilu Legislatif, supra note 56.
59
Id.
Indonesia
149
6.2. Communists as candidates
The Court also made a landmark decision that hinged on an application to
review the constitutionality of article 60 g of Law no. 12 of 2003, which limited the rights of citizens to stand for election. This article reflected the anticommunist paranoia that has been a characteristic of Indonesia politics since
1965, when hundreds of thousands of leftists were killed or jailed. Specifically, article 60 g prohibited the candidature of former members of ‘‘the
banned Indonesian Communist Party, including its mass organizations’’
and any person ‘‘directly or indirectly involved in the ‘G30S/PKI’60 or any
other illegal organization.’’61
The Court’s judgment, handed down on February 24, 2004, struck down
article 60 g, although one judge dissented.62 The Court recognized that individual rights could be limited by a statute but found that those limitations
must be based on ‘‘strong, reasonable, proportional and not extreme
grounds.’’ The Court further found that the ban on communist-linked candidates in article 60 g was based solely on political grounds, and that these were
neither reasonable nor strong. It therefore decided that article 60 g was in
contravention of the Constitution and, in particular, articles 27 (equal status
before the law and government); 28 D, paras. (1) (equal rights to recognition,
security protection, and certainty of just laws and equal treatment before the
law), and (3) (right to equal opportunity in government); and 28 I para.
(2) (right to freedom from discriminatory treatment). Accordingly, the article
was ‘‘not legally binding,’’ and former communists, and those suspected of being
communists or linked to them, were, in fact, entitled to stand for election.
This decision was said by the Court to be intended as a step toward
‘‘national reconciliation and justice for the future.’’ It was, indeed, widely
hailed as a major step forward in dealing with the violence and longstanding institutionalized discrimination associated with the events of 1965
and their aftermath—still distressing and taboo issues for many Indonesians.
7. The Bali bomber case
More recently, in the Kadir case, the Constitutional Court found Indonesia’s
new Antiterrorism Law no. 16 of 2002 (which was introduced after the
60
This is a reference to the so-called Gerakan 30 September (September 30 Movement) and the
PKI (Partai Komunis Indonesia or ‘‘Indonesian Communist Party’’), both alleged to have launched
a supposed coup attempt on September 30, 1965. This incident was used to justify the killing and
jailing of leftists by the military and Islamic organizations over the next eighteen months that resulted in the obliteration of the left in Indonesia and led to Soeharto’s rise to power. The claim that
the PKI, in a conspiracy with leftist army officers, had tried to overthrow the state and establish a
communist regime in Indonesia was political doctrine and state ideology under Soeharto’s New
Order but has since been openly questioned.
61
See http://www.ifes.org (unofficial English translation of Law no. 12 of 2003).
62
See http://www.mahkamahkonstitusi.go.id (complete decision in Indonesian).
150 Int’l J Con Law, Vol 4, No 1 (Jan 2006)
S. D. Harijanti and T. Lindsey
Bali bombing and purported to apply retrospectively to allow prosecution of
the Jemaah Islamiyah members who carried out the atrocity) breached the
constitutional prohibition on retrospective prosecution in article 28 I, part
of the new Bill of Rights in the amended Constitution. The Court made this
decision—which is clearly correct—in the face of enormous political and popular pressure to uphold Kadir’s conviction.
8. Conclusion
As a result of decisions such as those described in this article, the Constitutional Court is now touted as a model for future judicial reform in
Indonesia.63 It is widely regarded as both transparent64 and capable. It is
seen as concerned with achieving a broad form of social justice and with
advancing the process of democratization.65
It has undoubtedly made an important contribution to the implementation
of the amendments to the Constitution that brought it into being. It has
generally provided a fair and efficient forum for testing the new democratic
electoral system established by those same amendments and has proved itself
to be independent. Against the odds, it appears to be emerging as an effective
guardian of the new Constitution, despite the fact that one of the most trenchant critics of the amended Constitution is now its Chief Justice. The success
of the Court is, in itself, strong testimony to the emerging strength of the
amendments and the infant institutions they have created.66
63
See, e.g., Masalah Hukum yang Tersisa dalam Sengketa Pemilu di Mahkamah Konstitusi [Remaining
Legal Problems in Electoral Disputes before the Constitutional Court], HUKUMONLINE, June 25, 2004,
available at http://www.hukumonline.com.
64
Unlike other courts, the Constitutional Court provides easy access to most of its judgments through its website, although the site remains incomplete. See http://www.
mahkamahkonstitusi.go.id.
65
See, e.g., Dua Tonggak Menuju Rekonsiliasi [Two Landmarks on the Road to Reconciliation], KOMPAS,
March 8, 2004, available at http://www.kompas.com; A. Irmanputra Sidin, Saat Harimau Itu
Diompongkan Hakim: Pasal Eks PKI [When the Judges Remove the Tiger’s Teeth: The Ex-PKI Clause],
KOMPAS, February 26, 2004, available at http://www.kompas.com; M. Saihu, Putusan Mahkamah
Konstitusi Tentang Eks PKI, Konsekuensi Logis Amandemen Konstitus, [Constitutional Court Decisions
on the Ex-PKI, A Logical Consequence of the Constitutional Amendments], February 26, 2004, http://
www.komisihukum.go.id; Refly Harun, Saat Dewi Keadilan Menolak Tunduk [When the Goddess of
Justice Refuses to Give In], KOMPAS, February 26, 2004, available at http://www.kompas.com;
MK tidak akan Gentar Membuat Keputusan [The CC will not be Afraid to Make Decisions], MEDIA
INDONESIA ONLINE, July 4, 2004, available at http://mediaindo.i2.co.id.
66
Putusan Mahkamah Konstitusi Tentang Eks PKI, Konsekuensi Logis Amandemen Konstitusi, supra
note 67.