Constitutional Court and Democracy in Indonesia

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).

"In this book, Simon Butt analyses how the court performed during its first decade. He examines to what extent its decisions and processes are impartial (and whether they can be clearly distinguished from political processes) and constrained by law. His observations will be important for those studying Indonesian law and politics, as well as other issues, such as healthcare and human rights, that have been significantly affected by the court’s decisions." - Bivitri Susanti, Executive Board Member, The Indonesian Foundation for Law and Policy Studies, in: The Bulletin of Indonesian Economic Studies

• About the BookCommonly-used Acronyms and AbbreviationsGlossary and AbbreviationsList of Cited Legal InstrumentsCommonly-cited Constitutional ProvisionsStatutes and Emergency LawsOther InstrumentsList of Cited CasesConstitutional Review CasesElectoral Disputes2004 Legislative Election2009 Legislative Election2014 Legislative ElectionPresidential ElectionsPemilukada DisputesDecisions of Other Courts1Introduction1Structure of the Book2Introduction to the Constitutional CourtPart I: Introduction to the Constitutional Court2Establishment of the Constitutional Court1The Introduction of Constitutional Courts and Judicial Review2The Need for a Constitutional Court2.1Concern for Human Rights3International Influences for the Court4Historical and Political Factors 4.1Constitutional Debates4.2Judicial Subjugation4.3Ideological Competitors4.4Structural Reforms and the Fading of Pancasila4.5Constitutional Reform as a Political Survival Tactic5Debates about Form and Jurisdiction6Conclusion3The Structure of the CourtJudges, Access, Decision-making and Enforcement1Judicial Appointment1.1Prerequisites1.2Nomination2Dismissal of Judges2.1Dismissal Process2.2Arsyad Sanusi2.3Akil Mochtar3Access to the Constitutional Court3.1Standing: Who Can Bring an Application Before the Court?3.2Complaints of Damage to Constitutional Rights3.3Political Parties, Parliamentarians and Parliaments3.4Reviews Granted Despite Lack of Standing3.5Court Costs and Timing4Decision-making of the Constitutional Court4.1Structure of Judgments4.2Style and Extrinsic Material4.3Use of Precedent4.4Dissents5Enforcement of Constitutional Court Decisions5.1Resistance to Enforcement5.2Government Compliance with DecisionsPart II: Constraints on the Constitutional Court’s Decision-making and Jurisdiction4External Constraints on the Constitutional CourtThe Constitution and the Legislature1Constitutional Constraints1.1Limitation of Constitutional Review to Statutes1.2The Court as a ‘Negative Legislator’2Legislative Latitude2.1KPK Law Case (2003)2.2Opened Legal Policy 2.3Article 28J(2) and Proportionality3Statutorily-imposed Constraints of the 2003 Constitutional Court Law3.1Rulings on the Court’s Own Interests3.2Article 50 cases3.3MK Perpu Case (2014)5Court-imposed Constraints1Review Limited to Norms1.1Implementation or Interpretation of Statutes1.2Wijaya and Lubis Case (2008)1.3Blasphemy Law Case (2010)1.4Retrospectivity Cases1.5Inconsistencies in Court-imposed Constraints1.6Sisa Suara Case (2009)1.7KPK Commissioners Case (2011)2Prospectivity of Decisions2.1Lèse Majesté Case (2006)2.2Bali Bombing Case (2003)2.3Death Penalty (2007) and Firing Squad (2008) Cases2.4Discussion2.5Exceptions3Injunctions3.1Criticisms of the Court-Awarded Injunctions6Jurisdictional Expansion1The 2011 Amendments and their Invalidation2Structure of this Chapter3Conditional (Un)constitutionality3.12011 Amendments and the Court’s Response4Orders to Lawmakers4.1Education Budget Cases4.2Anti-Corruption Court Case (2007)4.32011 Amendments and the Court’s Response5Ultra petita5.12011 Amendments and the Court’s Response6Legal Certainty6.12011 Amendments and the Court’s Response7Government Policy8Interim Emergency Laws (Perpu)8.1Saor Siagian Case (2009)8.2MK Perpu Case (2014)9Implication of RightsPart III: Constitutional Challenges to Electoral Statutes7Indonesian ElectionsSystems, Laws and Scope for Challenges1Constitutional Framework2Election-related Statutes and Regulations2.1Statutory Evolution2.2Explaining Multiple Challenges to Similar Norms3DPR and DPRD Elections3.1The List System3.2Affirmative Action3.3Seat Allocation3.4Establishment and Verification4DPD Elections4.1The DPD Jurisdiction Case (2012)4.2DPD Elections5Presidential Elections6Pemilukada7Customary Voting Procedures8Election Institutions and Administration8.1Constitutional Court Cases8Legislative Elections1Judicial Review of Candidacy Rules1.1PKI Case (2003)1.2Former Convicts1.3Civil Servant Candidate Case (2010)1.4Political Rights of Police and Armed Forces2Party Establishment and Verification3Contesting the ‘Next Election’: The Election Threshold Cases4The Parliamentary Threshold4.1Parliamentary Threshold Case (2009)4.2Parliamentary Threshold and Party Verification Case (2012)9Electoral Districts and Seat Allocation9.1Seat Allocation9.2Third Round Allocation Dispute (2009)10The People versus the Parties10.1The List Cases10.2Affirmative Action10.3Removal from Parliament10.4Other Types of Removal10.5Suspensions9Presidential Elections1Judicial Review of the Presidential Electoral System1.1Two-candidate Presidential Election Case (2014)1.2Ethnic Minorities Case (2012)1.3Electoral Roll Case (2009)2Judicial Review of Candidacy2.1Party Nomination2.2Independent Candidates Case (2008)2.3Subsequent Independent Candidate Cases3Threshold for Presidential Nomination3.1Saurip Kadi Case (2008)3.2Subsequent Presidential Nomination Threshold Cases4Other Candidacy Cases4.1Abdurrahman Wahid Case (2004)4.2Tax Records Case (2009)5Simultaneous Presidential and Legislative Elections5.1Saurip Kadi Case (2008)5.2Simultaneous Elections Case (2013)5.3Critique and Controversy6Future Challenges to Presidential ElectionsPart IV: Constitutional Court Returns Jurisprudence 10Electoral Disputes before the Constitutional CourtBetween ‘Mahkamah Kalkulator’ and ‘Substantive Justice’1Differing Approaches22004Elections2.1Legislative Elections2.2Presidential Elections3Pemilukada (2008-2012)3.1East Java Case (2008)3.2Breaches in the Electoral Process that Led to Recounts or Revotes3.3Testing the Scope of Electoral Process Breaches 42009 Elections4.1Legislative Elections4.2Presidential Elections52014 Elections5.1Legislative Elections5.2Presidential Elections6Evidence in Electoral Disputes6.1East Java Case (2008)6.2Reliance on Witness Testimony6.3Procedural and Evidentiary Hurdles to Review7The End of Pemilukada in the Constitutional Court11ConclusionsBibliography