The Constitutional Court and Democratic Consolidation in Indonesia

Gakuishuin University International Seminar on Justice in Asia

Sub Theme: The Constitutional Court and Democratic Consolidation in Indonesia

By Iwan Satriawan

Lecturer at Universitas Muhammadiyah Yogyakarta, Indonesia

Constitutional Lawyer at Safe Law Firm, Yogyakarta

Introduction

Respected Professor, Prof. Kusano, Prof. Noumi, Prof. Inada, Ladies and Gentleman, Brothers and Sisters

It is indeed a great honor to be here today, to have an opportunity to present ideas in front of many intellectuals from different countries. I do hope that this presentation will trigger a very meaningful discussion in the light of sharing ideas among others.

First of all, I would like to inform you that this paper is part of my ongoing research to complete my     Ph. D program that I am doing now in International Islamic University Malaysia. So, comments from audience will be very meaningful in deepening the quality of my analysis. The sub theme of the presentation is “the Constitutional Court and Democratic Consolidation in Indonesia”.

To shorten my presentation due to time constraint, let me summarize my presentation into three main points. First, this paper is trying to explain the theoretical and political background of the emergence of the Constitutional Court in Indonesia. Second, this study will answer whether the Constitutional Court, through it powers, had influenced the agenda of constitutional reform in relating to strengthening the democratic consolidation in Indonesia. Third, this paper is trying to answer whether the decisions of the Constitutional Court, in practice, influenced the working of democratic consolidation in Indonesia.

Ladies and gentleman,

Let me start from explaining the theoretical and political background of the emergence of the Constitutional Court in Indonesia.

The countries which are called as the new emerging democracies are facing many obstacles that are hampering efforts to develop an effective “rule of law system” which is expected to counterweigh the system of democracy. This obstacle is due to some reasons, firstly, how to institutionalize democratic values through law and based on existing law, as many of them have inherited an undemocratic past. Secondly, within the process of transformation towards democracy, it needs to be institutionalized into official legal norms in the form of constitutions, legislations and regulations. Thirdly, generally the new emerging democracy suffers from the “anomia syndrome” meaning that the integrity, the impartiality, and the independence of judiciary are seriously influenced. This is the reason why Indonesia finally created a new court, not delegate the powers to the Supreme Court, different from other common law countries.

Ladies and gentleman,

Some legal scholars, such as Prof. Jimly Asshiddiqie, the first chairman of the Constitutional Court, noted that the courts and judges play a pivotal role in controlling the practices of democracy which is usually glued to the principles of “majority rules” and a formal application of the principle of representation.

Gloppen, Gargarella and Skaar also state in their book “Democratization and Judiciary” that courts are important for the working and consolidation of democratic regimes. This is because they facilitate civil government by contributing to the rule of law and by creating an environment conducive to economic growth. They further argue that the courts also have a key role to play with regard to making power-holders accountable to democratic rules of the game, and ensuring the protection of human rights as established in constitutions, conventions and laws.

In 1998, the political reform had lead Indonesia into a very dynamic changes, including the amendment of the 1945 Constitution. Constitutional Reform has been deemed as the most fundamental measure for creating a constitution that provides better assurances for the institutionalization of democratic values.

The trend of new emerging democracies also shows that strengthening of checks and balances principles among state institutions is unavoidable to prevail a better environment towards democracy.

Ladies and gentleman,

In this step, we need to define what meant by democracy and democratic consolidation. In his book “on Democracy”, Roberth Dahl (1998) summarizes democracy in term of process-oriented approaches as a political life that fulfill at least five standards, namely effective participation, voting equality, enlightened understanding, control of the agenda and inclusion of adults. Tilly (2007) substantively defines democracy as the condition of life and politics that promotes human welfare, individual freedom, security, equity, social equality, public deliberation, and peaceful conflict resolution (see also Ulfelder and Lustik, 2005).

Linz and Stephan (1996) define a democratic transition is completed when sufficient agreement has been reached about political procedures to produce an elected government, when a government comes at power that is direct result of a free and popular vote, when this government de facto has the authority to generate new policies, and when the executive, legislative and judicial power generated by the new democracy does not have to share power with other bodies de jure. They further explain that in most cases after a democratic transition has been completed, there are still many tasks that need to be accomplished, conditions that must be established, and attitudes and habits that must be cultivated before democracy could be considered consolidated. Schedler (1998) describes democratic consolidation as the challenge of making new democracies secure, of extending their life expectancy beyond the short term, of making them immune against the threat of authoritarian regression, of building dams against eventual “reverse waves” (see also Mainwaring, 1989).

Ladies and gentleman,

Back to the previous discussion, in relation to the Constitutional Court and democratic consolidation, the idea to establish a Constitutional Court such as in Indonesia became highly prevalent in countries which were in transitional period heading toward democracy. The idea serving as a basis for such measure was that it was important to establish a state institution which had the function of safeguarding the constitution as the highest fundamental law of a country.[1]

The existence of the Constitutional Court in Indonesia has prompted ‘a new face’ and ‘a new hope’ of Indonesian constitutional system. Many achievements have been achieving by the Court since 2003[2] and of course some problems also emerged.

Ladies and gentleman,

Now, I will address this points to answer whether the Constitutional Court, through it powers, had influenced the agenda of constitutional reform in relating to strengthening the democratic consolidation in Indonesia.

The Constitutional Court has played an important role in the process of democratic consolidation through its decisions relating to judicial review some acts regarding the elections.  Since 2003 to August 2011, there are 384 cases registered, 334 had been reviewed and decided. From 334 decisions, the Court nullified the acts-wholly or partly, arguing that the acts are against the 1945 Constitution as the supreme law of the land. 110 cases are rejected by the Court. Some landmark of decisions pertaining to elections as one of standards of democratic consolidation, could be noted in the following paragraph.

Achmad Sodiki, one of constitutional court judges, summarizes some pivotal decisions, particularly the decisions made by the Court relating to general elections law. The following are some of the Constitutional Court’s decisions affecting directly the development of general election laws, namely reinstatement of the voting rights of former members of banned organization[3], allowing individual candidates in the local general elections[4], providing equal treatment for political parties in election[5], allowing the use of identity card in general elections[6], designation of candidates-elect based on majority votes[7] and some others relevant decisions. The above examples are decisions that show the important role of the Constitutional Court in protecting the fundamental rights of citizens and promoting democratic values in the light of consolidating democracy in Indonesia.

The decisions of the Court had strengthened the obedience of main political actors to rule of law, extent access to justice to citizens through the Court, and improve the quality of legislations as well as the strength of state institutions, political party system and civil society.

Ladies and gentleman,

Last point of my presentation, the paper is trying to answer whether the decisions of the Constitutional Court, in practice, influenced the working of democratic consolidation in Indonesia.

Based on the analysis in numbers of pivotal decisions made by the Constitutional Court, relating to disputes over the result of elections, it shows that the Constitutional Court has significant influenced in relating to the working of democratic consolidation. The existence of the Constitutional Court relating to disputes over the result of general elections has successfully become an important tool that providing the winners and the losers compete fairly in the court. In other words, the Court has moved a potential conflict among society from the streets to the air-conditioned hall in Constitutional Court building.

Ladies and gentleman,

Let me arrived at conclusion that the Constitutional Court, through its powers and decisions, improves the quality of legislations and elections which deepening democratic values, protecting fundamental rights, conducting checks and balances mechanism among state institutions and therefore it also influences the working of democratic consolidation in Indonesia.

Thank you very much, indeed.

Gakushuin University, Tokyo, October 19, 2011


[1] Ibid.

[2] For examples, The Constitutional Court has nullified some acts which are contradict to the 1945 Constitution. Besides, The Court also successfully settled many general election disputes which means the Court has become a trusted institution among the actors of democracy, although some of them disappointed on the decisions. In other words, the Court has functioned as ‘a democratic mediator’ in the process of democratic consolidation. Since 2003 until 2009, the Court has conducted sessions on 404 cases. They comprise of 247 judicial review cases, 11 disputes on authority of state organs, 116 of disputes over the results of presidential election and 30 of disputes ovet the result of regional elections. See further some decisions of the Court relating to judicial review of acts such as Decision Number 011-017/PUU-I/2003, Decision Number 072-073/PUU-II/2004, Decision Number 005/PUU-IV/2006, Decision Number 013-022/PUU-IV/2006, Decision Number 006/PUU-IV/2006, Decision Number 10/PUU-VI/2008,Decision Number 12/PUU-VI/2008, Decision Number 32/PUU-VI/2008, Decision Number 22-24/PUU-VI/2008. Decision Number 102/PUU-VII/2009, Decision Number 26/PUU-VIII/2010, Decision Number 39/PUU-VIII/2010. Regarding disputes over authority among state organs, there are some decisions, namely: Decision Number 068/SKLN-II/2004, Decision Number 002/SKLN-IV/2006, Decision Number 26/SKLN-V/2007, Decision Number 1/SKLN-IV/2008 and many decisions regarding disputes over the result of presidential elections and regional elections.

[3] See further Decision Number 011-017/ PUU-I/2003.

[4] See further Decision Number 072-073/PUU-II/2004.

[5] See further Decision Number 12/PUU-VI/2008.

[6] See further Decision Number 102/PUU-VII/2009.

[7] See further Decision Number 22-24/PUU-VI/2008.

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