The Constitutional Court and Democracy in Indonesia

Author: Simon Butt
The Constitutional Court and Democracy in Indonesia provides detailed, English-language analysis of Indonesia's Constitutional Court. Established in 2003, the Court has been at the forefront of democratic reform in Indonesia, shaping the rules under which Indonesian elections are run, enforcing democracy-related rights, and resolving hundred of electoral disputes. The Court has established itself as an accessible and largely professional body that actively and independently performs its functions and one which does not shy away from difficult cases. It has earned the respect of Indonesian citizens and members of government who comply with the Court's decisions as a matter of course, despite the Court's lack of official enforcement powers. Many of the Court's decisions have been controversial, yet criticism has focused on the perceived unfairness of the outcomes. This book seeks to forge a new path in this debate by offering a balanced critique of the Constitutional Court's jurisprudence and decision-making practices.

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Simon Butt, Ph.D., is an Associate Professor of Law at Sydney University, Australia, where he teaches Indonesian law. He has written widely on Indonesia, including: Corruption and Law in Indonesia (Routledge, 2012) and The Indonesian Constitution: a Contextual Analysis (Hart, 2012, with Tim Lindsey).
About the Book
Commonly-used Acronyms and Abbreviations
Glossary and Abbreviations
List of Cited Legal Instruments
Commonly-cited Constitutional Provisions
Statutes and Emergency Laws
Other Instruments
List of Cited Cases
Constitutional Review Cases
Electoral Disputes
2004 Legislative Election
2009 Legislative Election
2014 Legislative Election
Presidential Elections
Pemilukada Disputes
Decisions of Other Courts

1 Introduction
1 Structure of the Book
2 Introduction to the Constitutional Court

Part I: Introduction to the Constitutional Court

2 Establishment of the Constitutional Court
1 The Introduction of Constitutional Courts and Judicial Review
2 The Need for a Constitutional Court
2.1 Concern for Human Rights
3 International Influences for the Court
4 Historical and Political Factors
4.1 Constitutional Debates
4.2 Judicial Subjugation
4.3 Ideological Competitors
4.4 Structural Reforms and the Fading of Pancasila
4.5 Constitutional Reform as a Political Survival Tactic
5 Debates about Form and Jurisdiction
6 Conclusion
3 The Structure of the Court
Judges, Access, Decision-making and Enforcement
1 Judicial Appointment
1.1 Prerequisites
1.2 Nomination
2 Dismissal of Judges
2.1 Dismissal Process
2.2 Arsyad Sanusi
2.3 Akil Mochtar
3 Access to the Constitutional Court
3.1 Standing: Who Can Bring an Application Before the Court?
3.2 Complaints of Damage to Constitutional Rights
3.3 Political Parties, Parliamentarians and Parliaments
3.4 Reviews Granted Despite Lack of Standing
3.5 Court Costs and Timing
4 Decision-making of the Constitutional Court
4.1 Structure of Judgments
4.2 Style and Extrinsic Material
4.3 Use of Precedent
4.4 Dissents
5 Enforcement of Constitutional Court Decisions
5.1 Resistance to Enforcement
5.2 Government Compliance with Decisions

Part II: Constraints on the Constitutional Court’s Decision-making and Jurisdiction

4 External Constraints on the Constitutional Court
The Constitution and the Legislature
1 Constitutional Constraints
1.1 Limitation of Constitutional Review to Statutes
1.2 The Court as a ‘Negative Legislator’
2 Legislative Latitude
2.1 KPK Law Case (2003)
2.2 Opened Legal Policy
2.3 Article 28J(2) and Proportionality
3 Statutorily-imposed Constraints of the 2003 Constitutional Court Law
3.1 Rulings on the Court’s Own Interests
3.2 Article 50 cases
3.3 MK Perpu Case (2014)
5 Court-imposed Constraints
1 Review Limited to Norms
1.1 Implementation or Interpretation of Statutes
1.2 Wijaya and Lubis Case (2008)
1.3 Blasphemy Law Case (2010)
1.4 Retrospectivity Cases
1.5 Inconsistencies in Court-imposed Constraints
1.6 Sisa Suara Case (2009)
1.7 KPK Commissioners Case (2011)
2 Prospectivity of Decisions
2.1 Lèse Majesté Case (2006)
2.2 Bali Bombing Case (2003)
2.3 Death Penalty (2007) and Firing Squad (2008) Cases
2.4 Discussion
2.5 Exceptions
3 Injunctions
3.1 Criticisms of the Court-Awarded Injunctions
6 Jurisdictional Expansion
1 The 2011 Amendments and their Invalidation
2 Structure of this Chapter
3 Conditional (Un)constitutionality
3.1 2011 Amendments and the Court’s Response
4 Orders to Lawmakers
4.1 Education Budget Cases
4.2 Anti-Corruption Court Case (2007)
4.3 2011 Amendments and the Court’s Response
5 Ultra petita
5.1 2011 Amendments and the Court’s Response
6 Legal Certainty
6.1 2011 Amendments and the Court’s Response
7 Government Policy
8 Interim Emergency Laws (Perpu)
8.1 Saor Siagian Case (2009)
8.2 MK Perpu Case (2014)
9 Implication of Rights

Part III: Constitutional Challenges to Electoral Statutes

7 Indonesian Elections
Systems, Laws and Scope for Challenges
1 Constitutional Framework
2 Election-related Statutes and Regulations
2.1 Statutory Evolution
2.2 Explaining Multiple Challenges to Similar Norms
3 DPR and DPRD Elections
3.1 The List System
3.2 Affirmative Action
3.3 Seat Allocation
3.4 Establishment and Verification
4 DPD Elections
4.1 The DPD Jurisdiction Case (2012)
4.2 DPD Elections
5 Presidential Elections
6 Pemilukada
7 Customary Voting Procedures
8 Election Institutions and Administration
8.1 Constitutional Court Cases
8 Legislative Elections
1 Judicial Review of Candidacy Rules
1.1 PKI Case (2003)
1.2 Former Convicts
1.3 Civil Servant Candidate Case (2010)
1.4 Political Rights of Police and Armed Forces
2 Party Establishment and Verification
3 Contesting the ‘Next Election’: The Election Threshold Cases
4 The Parliamentary Threshold
4.1 Parliamentary Threshold Case (2009)
4.2 Parliamentary Threshold and Party Verification Case (2012)
9 Electoral Districts and Seat Allocation
9.1 Seat Allocation
9.2 Third Round Allocation Dispute (2009)
10 The People versus the Parties
10.1 The List Cases
10.2 Affirmative Action
10.3 Removal from Parliament
10.4 Other Types of Removal
10.5 Suspensions
9 Presidential Elections
1 Judicial Review of the Presidential Electoral System
1.1 Two-candidate Presidential Election Case (2014)
1.2 Ethnic Minorities Case (2012)
1.3 Electoral Roll Case (2009)
2 Judicial Review of Candidacy
2.1 Party Nomination
2.2 Independent Candidates Case (2008)
2.3 Subsequent Independent Candidate Cases
3 Threshold for Presidential Nomination
3.1 Saurip Kadi Case (2008)
3.2 Subsequent Presidential Nomination Threshold Cases
4 Other Candidacy Cases
4.1 Abdurrahman Wahid Case (2004)
4.2 Tax Records Case (2009)
5 Simultaneous Presidential and Legislative Elections
5.1 Saurip Kadi Case (2008)
5.2 Simultaneous Elections Case (2013)
5.3 Critique and Controversy
6 Future Challenges to Presidential Elections

Part IV: Constitutional Court Returns Jurisprudence

10 Electoral Disputes before the Constitutional Court
Between ‘Mahkamah Kalkulator’ and ‘Substantive Justice’
1 Differing Approaches
2 2004 Elections
2.1 Legislative Elections
2.2 Presidential Elections
3 Pemilukada (2008-2012)
3.1 East Java Case (2008)
3.2 Breaches in the Electoral Process that Led to Recounts or Revotes
3.3 Testing the Scope of Electoral Process Breaches
4 2009 Elections
4.1 Legislative Elections
4.2 Presidential Elections
5 2014 Elections
5.1 Legislative Elections
5.2 Presidential Elections
6 Evidence in Electoral Disputes
6.1 East Java Case (2008)
6.2 Reliance on Witness Testimony
6.3 Procedural and Evidentiary Hurdles to Review
7 The End of Pemilukada in the Constitutional Court
11 Conclusions

This book will be of great value for law academics, political scientists, historians, students, government representatives, multilateral donors, and companies with an interest in Indonesian or Southeast Asian studies.