Chapter 11 The Australian Experience: Constitutional Courts – The Rule of Law

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Robert French AC
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Abstract

The role of the Constitutional Court of Indonesia is transformative. It is engaged in the process of nation-building and in the scope of limits of is powers. Its endeavours in this respect are much to be admired.

The High Court of Australia is the final appeal court for all Australian courts. It determines constitutional questions which come before it and has an entrenched judicial review jurisdiction in relation to the exercise of power by Commonwealth officials.

The two institutions have different histories and assume somewhat different roles in their home societies. Both, however, are key to the maintenance of the rule of law.

1 The Constitutional Court of Indonesia – An Admiring Reflection

As a broad proposition, constitutional courts police the boundaries of democratic lawmaking and determine whether laws or proposed laws exceed constitutional limits. They may be authorised to go further and determine when lawmakers have failed to do what they are required by a constitution to do and instruct them accordingly. The limits which they police are often expressed in language which offers choices about its interpretation – constructional choices. The limits of power imposed by such constitutions may be uncertain. The decisions of constitutional courts are often inherently contestable because reasonable minds might come to different conclusions about the interpretation of a broadly worded provision. This has been the experience from time to time in Australia. The area of constructional choice is widened when a court is invited to draw an implication from the text and structure of a constitution.

The role of a constitutional court in responding to novel questions where the meaning of the constitution is uncertain, is challenging enough in a long-standing representative democracy such as Australia, where such questions do not arise with great frequency. Australia’s Constitution came into effect in 1901 and reflected long-established conventions, institutional arrangements and concepts taken from the United States Constitution and from the United Kingdom system of responsible government. It was embedded in the common law. The self-governing colonies that became the States of Australia already had local constitutions in place, which reflected broadly understood institutional relationships between the legislature, the executive and the judiciary.

The Constitutional Court of Indonesia came into existence in a post-conflict society in 2003. It has established itself and carried out its work in circumstances far more challenging than those confronting its Australian counterparts. The Court has formal responsibilities under Art 24C(1) of the Indonesian Constitution. It reviews laws, including Interim Emergency Laws for their constitutional validity. It adjudicates on disputes about constitutional authority between State institutions. It can determine whether a political party should be dissolved, where that party employs violence so as to undermine the democratic order. It can decide disputes about the results of general elections. It can rule upon alleged violations of the Constitution by the President or the Vice-President.

These areas of jurisdiction conferred upon the Court which was created in 2003 in a post-conflict setting, meant that it was inevitable that the Court should play a key role in the process of ongoing nation-building. The term ‘transformative constitutionalism’, coined by Bertus de Villiers in the first chapter of this excellent book, is apposite.

There were a number of precedents for the Court to draw upon in defining its role. Examples are set out and discussed in Professor Warren’s chapter on the Court as a post-conflict institution. The decisions of the Court in determining transitional justice issues are said to have been consistent with outcomes and analytical approaches taken by similar courts. It has explicitly relied upon comparative law from other post-conflict constitutional courts.

Adjudication on Australia’s Constitution has often been concerned with the distribution of legislative powers between the Commonwealth Parliament and the States. The Commonwealth Parliament has enumerated, albeit non-exclusive, legislative powers which can be exercised concurrently with the States subject to a rule of primacy that Commonwealth laws will override inconsistent State laws. The Australian federal model, which has generated torrents of judicial ink since the commencement of the Federation, appears almost banal in its simplicity when compared with Indonesia.

Indonesia has 38 Provinces, nine of which have a special status, including the capital region of Jakarta – the latter perhaps analogous to the Australian Capital Territory in which the national capital, Canberra, is located. The Indonesian system is described by Professor Nico Steytler as ‘asymmetrical’, flowing from the founding of the Republic of Indonesia in 1945 and subsequent conflicts. As he observes, the distribution of powers in this decentralised system is a likely area for contest between orders of government. The Constitutional Court has had to grapple with such contests. That is notwithstanding the Indonesian Constitution’s emphasis on the ‘unitary’ nature of the State in Art 1(1) of the 1945 Constitution. Interesting comparisons are drawn in Professor Steytler’s paper between Indonesia and South Africa in this context.

As if decentralisation did not provide sufficient challenge, there is the question of the role of religion and religious rights in the Republic of Indonesia. Ann Black points out that Indonesia is the world’s largest Muslim nation with 87%, over 207 million Indonesians, identifying as Muslim. Despite that, Islam does not feature in the Constitution, nor does the law of Islam. Nor does secularism for that matter. ‘Belief in one Almighty God’ (ketuchanan) is the first principle of Pancasila – the spirit that guides the nation. So Black observes that by facilitating tolerance but preserving the religious spiritual pulse of the nation, Pancasila makes possible ‘unity in diversity’. There are religious courts which determine cases at first instance between Muslims in the fields of marriage, inheritance, will, grant, waqf, zakat; infaq; sadaqah; and Sharia economics. In its decision in the Religious Courts case, the Constitutional Court reviewed those competencies for consistency with human rights guarantees under the Constitution. That case, and the Beliefs Case discussed in Ann Black’s chapter, highlight the complexities of the jurisdiction exercised by the Constitutional Court over the sprawling, populous and diverse archipelago that is Indonesia.

The Court has actively engaged in the recognition of indigenous rights discussed in Chapter 7 by Dr Cohen and Dr Arizona. In Case No. 35/puu-x/2012, the Court was concerned with the legal status of customary forests within the scope of the Forestry Law. While that Law recognised customary forests, it described them as ‘state forests located within the territory of indigenous peoples’. Indigenous applicants applied to the Constitutional Court to have the word ‘State’ in Article 1(6) of the Forestry Law deleted. The Court granted their application and thus changed the definition of ‘customary forest’ by separating such forests out from State forests. That decision was a straightforward but good example of the relatively more expansive role of the Constitutional Court of Indonesia in judicial review of legislation than that of its Australian counterparts. A more positively proactive approach was reflected in Decision No. 95/puu-xii/2014, which was concerned with criminal provisions in the Forestry Law and the Law on the Prevention and Eradication of Forest Destruction. The Court carved out an exception from a prohibition against cutting down trees or harvesting or collecting forest products in the forest without having permission from authorised officials. The exception, inserted by a process of quasi-legislative drafting on the part of the Court, was ‘for people who lived for generations in the forest and are not intended for commercial purposes’. A similar exemption was carved out in relation to a prohibition against herding livestock within forest areas.

As Drs Cohen and Arizona observe, developments in international law regarding indigenous rights have had a significant impact in Indonesia. The Constitutional Court’s jurisprudence has been informed by international environment law and the United Nations Declaration on the Rights of Indigenous People. The Constitutional Court is described as having:

resolved not only the concrete problems of injustice encountered by indigenous peoples but also generated legal reform.

Against this backdrop of transformative constitutionalism and a significant role in ongoing nation-building, judicial constitutionalism in Australia presents a rather unexciting contrast. That said, there are some important common elements of the kind that confront constitutional courts around the world. However, Australia’s Constitution being largely bereft of express human rights guarantees and not importing norms derived from customary international law or Conventions, is not prone to give rise to as many occasions for conflict about fundamental values as the more expansive constitutional jurisdictions of other countries. Constitutional adjudication in Australia, however, is central to the operation of the Federation and the rule of law generally.

2 Constitutional Adjudication in Australia

Australia is a federation. The Commonwealth Constitution came into effect on 1 January 1901 as part of an Act of the United Kingdom Parliament. It created a new polity, the Commonwealth of Australia and legislative executive and judicial branches of government for that Commonwealth.

The High Court, Federal, State and Territory Courts in Australia can all hear and determine constitutional questions. However, the High Court is the highest constitutional court and also the final appeal court on all matters, constitutional and otherwise, from State, Territory and Federal Courts.

Under section 71 of the Constitution:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction.

Section 73 confers appellate jurisdiction on the High Court to hear and determine appeals on federal courts or courts exercising federal jurisdiction or of the Supreme Court of any State. Its judgment in all such cases is final and conclusive. The High Court also has original jurisdiction conferred on it directly by section 75 of the Constitution. It has additional original jurisdiction which the Parliament may confer on it by virtue of section 76. Curiously, that additional original jurisdiction includes, in section 76(i), jurisdiction in any matter ‘arising under this Constitution, or involving its interpretation’. The Parliament can also make laws defining the jurisdiction of any federal court other than the High Court and investing any court of a State with federal jurisdiction under section 77.

Before Federation on 1 January 1901, the States of the Commonwealth were self-governing colonies, each with its own statutory constitution authorised by laws of the United Kingdom. Under those constitutions, the self-governing colonies had their own judicial systems, including Supreme Courts. Those State constitutions and laws made under them were continued in force by the Commonwealth Constitution in sections 106, 107 and 108.

The High Court, for which the Constitution provides in section 71, was established by legislation under the Judiciary Act 1903 (Commonwealth). That Act conferred upon the High Court additional original jurisdiction ‘in all matters arising under the Constitution or involving its interpretation.’ The same Act conferred the same jurisdiction on the courts of the States and the courts of the Territories. Following the creation of the Federal Court of Australia in 1976, it also had jurisdiction conferred upon it in matters arising under the Constitution or involving its interpretation. The effect of these provisions is that a constitutional question can be raised and decided in proceedings in any State or Territory court or in the Federal Court of Australia or in the original jurisdiction of the High Court. As the ultimate appeal court from the Federal Courts and the State and Territory Courts of course the High Court determines constitutional questions arising on appeals. Important constitutional matters are frequently taken directly to the High Court, in its original jurisdiction, where the validity of a law is to be challenged. Where there are factual matters to be determined before a constitutional question can be answered, the High Court will often remit the matter to a State or Federal court to determine those factual issues. Often, however, in constitutional adjudication, the High Court proceeds upon the basis of facts which have been agreed between the parties.

A safeguard provision, section 40, provides that where any cause or part of a cause ‘arising under the Constitution or involving its interpretation’ is pending at any time in a court other than the High Court, it may be removed into the High Court under an order of the High Court.

Without further exploring the procedural complications of constitutional jurisdiction in Australia, it may be seen that constitutional jurisdiction exists throughout the whole judicial system with the High Court serving as the ultimate decider.

3 The Constitutional Court: Policing the Limits of Power and Upholding the Rule of Law

A key role of constitutional courts is to maintain the rule of law by policing the limits of power. In Australia, all official power is found either in a statute conferring that power or in the Constitution of the Commonwealth or of a State. The meaning of the term ‘rule of law’ is much debated. A core element of it is that nobody, private citizen, public official or government, is above the law.

Under the Commonwealth Constitution, with its division of law-making power between the Commonwealth and the States, the limits it imposes on those powers and its separation of the judicial from the legislative and executive branches of government, there is no such thing as unlimited official power. Section 75(v) of the Constitution has the effect of conferring original jurisdiction on the High Court to judicially review decisions or conduct of Commonwealth Ministers and officers for jurisdictional error. Broadly speaking, that covers conduct in excess of constitutional or statutory powers. Former Chief Justice Gleeson described it as providing in the Constitution a ‘basic guarantee of the rule of law’. Because it is a constitutional provision the jurisdiction it confers on the Court cannot be removed by anything other than a constitutional amendment. It is thus proof against attempts to place Commonwealth executive action beyond legal scrutiny and challenge.

A similar protection has been implied by the High Court from the Constitution as applying to the traditional supervisory jurisdiction of the Supreme Courts of the States.1 That is to say they have, by implication, an entrenched constitutional jurisdiction to review exercises of official power for jurisdictional error. Moreover, the continuing existence of the State Supreme Courts has been held to be constitutionally entrenched, again as a matter of implication from the provisions of the Commonwealth Constitution. The Court has also held that the courts of the States cannot be made subject to the direction of the executive governments of the States.2 Nor can they have imposed on them, or conferred on their judges, functions which are incompatible with their essential characteristics. Those essential characteristics include decisional independence, open hearings, procedural fairness and publicly available reasoned decisions. The foundation of these implied protections for State courts is Chapter 3 of the Commonwealth Constitution which allows the Parliament to invest them with federal jurisdiction. They have to be fit repositories for federal jurisdiction. The result of all of this is that Australia enjoys a pervasive constitutional protection for the rule of law concerning the exercise of official power, both legislative and executive, which enables its limits to be policed and enforced on the application of persons affected by its exercise.

In Australia, the core elements of the rule of law include specific propositions relevant to the exercise of official powers which provide a degree of protection for human rights and freedoms:

  1. 1.All official power derives from rules of law found in the Commonwealth and State Constitutions or in laws made under those Constitutions.
  2. 2.There is no such thing as unlimited official power, be it legislative, executive or judicial.
  3. 3.The powers conferred by law must be exercised lawfully, rationally, consistently, fairly and in good faith. Failure to comply with those requirements can constitute jurisdictional error and make the purported exercise of the power invalid.
  4. 4.The courts have the ultimate responsibility of resolving disputes about the limits of official power and in so doing they, like those whose decisions they review, must act lawfully, rationally, consistently, fairly and in good faith and within the proper limits of their constitutional function.

The Australian courts have adopted certain key rules for statutory interpretation that are consistent with the democratic process and, to the extent possible, protective of common law rights and freedoms. They are:

  1. 1.Laws made by the Parliament are to be interpreted in accordance with their text, context and purpose, and in accordance with common law and statutory rules of interpretation understood by those who draft the laws and, by attribution, by the parliaments which enact them.
  2. 2.Laws made by the Parliament are to be interpreted where interpretive choices are open on the text so as to avoid or minimise their impact on common law rights and freedoms. That principle is commonly referred to as the ‘principle of legality’.

The claim can properly be made that the rule of law in Australia is well-established. It is an assumption on which the Australian Constitution is based.3 We cannot say that it can be taken for granted. Indeed, it is important that it never be taken for granted. There are to be found in contemporary democratic societies, men and women of action and emphatic opinion in government and outside it who are impatient with the rule of law and the constraints it imposes on legislative and executive powers and who regard courts, in the words of one distinguished Australia academic ‘as an inconvenient differentiation of government’. Much depends upon the culture of the society. This is particularly so in the absence of constitutional guarantees of human rights and freedoms. And even where such rights and freedoms are guaranteed, those guarantees may not be proof against an inimical societal or political culture.

4 Human Rights under the Australian Constitution and Statutes

The words ‘rights’ and ‘freedoms’ attach, in our ordinary speech, to individual men and women. The usage reflects the idea in international law of human rights and freedoms as aspects of the dignity and equality of every human being. The Australian Constitution does not provide expressly or by implication general guarantees of human rights and freedoms. There are, however, several provisions which incorporate limited guarantees. Briefly they are:

  1. Section 51(xxiiiA), which empowers the Commonwealth Parliament to make laws about medical and dental services but expressly precludes civil conscription, such as forcing doctors or dentists to work for the government under a national health system.
  2. Section 51(xxxi) which, in effect, requires that any law of the Commonwealth Parliament with respect to the acquisition of property from any State or person must provide that the acquisition of property be on just terms.
  3. Section 75(v), which entrenches judicial review of decisions of Commonwealth officers.
  4. Section 80, which requires trial by jury for an offence against a law of the Commonwealth which is tried on indictment.
  5. Section 92, which guarantees freedom of interstate ‘trade, commerce and intercourse’. The latter part of that guarantee applies to freedom of movement across State boundaries and was relied upon to strike down national security regulations in 1945.4
  6. Section 116, which prohibits the Commonwealth from making any laws for establishing any religion or imposing any religious observance or prohibiting the free exercise of any religion. It also provides that no religious test shall be required as a qualification for any office or public trust under the Commonwealth.
  7. Section 117, which prohibits discrimination between the residents of States. The High Court has also held that there is an implied freedom of political communication under the Constitution. It is implied, among other things, from the provisions of sections 7 and 24 of the Constitution, which require that Senators and Members of the House of Representative be chosen directly by the people. It has been much litigated in challenges to laws which burden freedom of speech in various ways. It does not create a personal right or freedom but imposes limits on the law-making power of Parliament and on the common law. Political speech can be burdened for a legitimate purpose consistent with Australia’s representative democracy if the burden is reasonable and appropriately adapted to meet that legitimate purpose.

There are many statutes which embody protections for human rights and freedoms in particular contexts, reflecting Australia’s adherence to a number of international conventions. These include the Racial Discrimination Act 1975. Because that is a Commonwealth law made to give effect to the Convention for the Elimination of All Forms of Racial Discrimination, it prohibits discriminatory action at both Commonwealth and State level. The Commonwealth law has primacy under section 109 of the Constitution over any inconsistent State law. To that extent, human rights protections against forms of discrimination in Australia can be regarded as constitutionalised. There are also many such laws at State and Territory level and three Australian jurisdictions have adopted Human Rights Acts which require those State and Territory statutes to be interpreted consistently with fundamental human rights and freedoms and for pubic authorities to have regard to them in exercising their powers.

5 The Common Law

Statute apart, many of the things we think of as basic rights and freedoms come from the common law. The common law is also used to interpret Acts of Parliament and regulations made under them so as to avoid or minimise intrusion into those rights and freedoms. That is done against the backdrop of the supremacy of Parliament. Parliament can, by using clear words for which it can be held politically accountable, qualify or extinguish those rights or freedoms except to the extent that they are protected by the Constitution.

The common law rights and freedoms include the following: personal liberty, freedom of movement, freedom of speech, freedom of association and assembly, freedom of religion, immunity from deprivation of property without compensation, the presumption of innocence, the privilege against self-incrimination, legal professional privilege, the right to a fair trial, and the right to procedural fairness in administrative decision-making and judicial processes.

Restrictions on rights and freedoms may be imposed by democratic processes – by laws enacted by the Parliament. They may also be imposed by delegated legislation and legislative instruments made by Ministers or public officials under the authority of Acts of Parliament. The mere fact that a law adversely affects a right or freedom does not mean that the rule of law is somehow undermined. There is, however, a need for a continuing societal, parliamentary and official culture of scepticism about laws that seek to reduce any freedoms or the existence or exercise of any rights.

The rule of law is perhaps the most important protection of rights and freedoms. In the end, however consistently with the rule of law, statutes can be enacted by parliaments driven by short-term political imperatives which erode although perhaps only in a piecemeal way elements of those rights and freedoms. Over time, and cumulatively, this can be a process of death by a thousand cuts. Ultimately, the only legal limits imposed on parliaments are those derived from a written constitution policed by an independent and authoritative constitutional court. The damage to infringements on rights and freedoms may be mitigated by the way in which the court uses common law principles to interpret statutes so as to mitigate or avoid such infringements. But that approach is only possible where the language of the statute allows for an interpretive choice.

6 Recognition of Indigenous Land Rights

It was an important development of the common law in Australia that allowed for the recognition of traditional rights and interests of indigenous people in their land and waters – native title. That recognition was effected by the decision of the High Court in Mabo v Queensland (No 2) in 1992.5 The decision led to legislation to provide a mechanism under Commonwealth law for facilitating recognition of such common law rights and interests and for protecting them against uncompensated extinguishment or impairment. Although an important common law development, it might be said to have a small ‘c’ constitutional dimension. It reflected a departure from a false understanding of the basis upon which Australia had been settled and of the absence of any cognisable legal systems among traditional societies of Australia’s indigenous people.

The Mabo case had significant political impacts as did some follow-up decisions. There was public criticism of the Court from interest groups who thought they would be affected adversely by the decisions. In deciding Mabo, the High Court was not determining a political question. Typically, as a constitutional court, the High Court does not determine political questions but legal questions. But its decisions may have political consequences and it is all too easy in such cases for critics of such decisions to characterise them as exercises in judicial ‘activism’. Ultimately, the legitimacy and authority of constitutional courts in the area of questions of political significance will depend upon the legitimacy and rigor of their reasoning and their respect for the other branches of government.

7 Conclusion

The development of the Constitutional Court of Indonesia has compressed into a very short period, a kind of historical evolution that has proceeded over centuries in other representative democracies with written constitutions. The complexities of the society in which the Constitutional Court of Indonesia must uphold the rule of law and its Constitution should evoke an appropriate sense of modesty in those of us who live under considerably less challenging regimes.

1

Kirk v. Industrial Court of New South Wales (2010) 239 clr 531.

2

International Finance Trust Co Ltd v. New South Wales Crime Commission (2009) 240 clr 219.

3

Australian Communist Party v Commonwealth (1951) 83 clr 1.

4

Gratwick v. Johnson (1945) 76 clr 1.

5

Mabo v. Queensland (No 2) [1992] hca 23; (1992) 175 clr 1.

Bibliography

  • Australian Communist Party v. Commonwealth (1951) 83 clr 1.

  • Gratwick v. Johnson (1945) 76 clr 1.

  • International Finance Trust Co Ltd v. New South Wales Crime Commission (2009) 240 clr 219.

  • Kirk v. Industrial Court of New South Wales (2010) 239 clr 531.

  • Mabo v. Queensland (No 2) [1992] hca 23; (1992) 175 clr 1.

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Courts and Diversity

Twenty Years of the Constitutional Court of Indonesia

Series:  Brill's Asian Law Series, Volume: 12