Courts and Diversity

Twenty Years of the Constitutional Court of Indonesia


The Constitutional Court of Indonesia functions in one of the most diverse societies in the world. It is required to resolve disputes within a kaleidoscope of diversity and plurality with flexibility, pragmatism, asymmetry, and wisdom. Whilst national minimum norms are important for nation-building, recognition of local customs, diversities and indigenous systems are equally important to protect the territorial integrity of Indonesia and ensure local peace and stability. Responding to demands of religious plurality, customary lands rights, traditional voting systems, decentralisation to regions and local governments, and responding to diversity of community life, requires extraordinary skill, insight and flexibility. This book gives insight into twenty years of jurisprudence and places it in an international comparison.
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Bertus de Villiers is a Visiting Professor of the Law School of the University of Johannesburg and a Member of the State Administrative Tribunal of Western Australia. He is a Fellow of the Alexander von Humboldt Stiftung (Germany). He specialises in the areas of minority and indigenous rights, decentralisation, human rights, and land reform.

Saldi Isra is a Constitutional Law Professor at the Faculty of Law of Andalas University in Padang, West Sumatra, and the Deputy Chief Justice of the Constitutional Court of Indonesia. Prior to his appointment to the Constitutional Court in 2017, he was Director of the Center for Constitutional Studies (PUSaKO) at the Faculty of Law of Andalas University from 2005–2017.

Pan Mohamad Faiz is a Constitutional Law Expert. He works as the Head of the Research Center of the Indonesian Constitutional Court. Faiz is also an External Research Fellow at the Center for Public, International and Comparative Law (CPICL). He received his PhD in Constitutional Law from TC Beirne School of Law, the University of Queensland, Australia.
List of Figures, Maps and Tables

Notes on Contributors

1 Constitutionalism and Diversity: Setting the Scene
  Bertus de Villiers

2 Indonesia’s Diversity: A Brief Constitutional Perspective
  I D.G. Palguna and Bisariyadi

3 The Indonesian Constitutional Court: An Overview
  Saldi Isra and Pan Mohamad Faiz

4 The Law of Diversity and Indonesia’s Village Law: Creating Procedures for Completeness in Diverse Societies
  Tove H. Malloy

5 The Constitutional Court of Indonesia as a Post-Conflict Institution
  Christie S. Warren

6 Religious Rights: Testing the Limits of Tolerance
  Ann Black

7 The Recognition of Customary Land Rights at the Constitutional Court of Indonesia: A Critical Assessment of the Jurisprudence
  Yance Arizona and Miriam Cohen

8 The ‘Right’ to Free, Prior and Informed Consent: Evolving Customary International Law
  George Barrie

9 Collective Decision-Making versus Individual Rights: A Reflection on the ‘Noken’ Electoral System of Papua and the Operation of Native Title in Australia
  Bertus de Villiers

10 Constitutional Approaches to Diversity and Non-discrimination in Multi-level States: Indonesian and South African Jurisprudential Perspectives
  Nico Steytler

11 The Australian Experience: Constitutional Courts - The Rule of Law
  Robert French AC


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