Consti Law Mid Paper

Table of Contents
Foreword……………………………………………………………………………………..1
Summary……………………………………………………………………………………..2
Commentary………………………………………………………………........................17
Bibliography………………………………………………………………………………...31
Foreword
This individual paper is written for the requirement of attending the mid-semester test
for the subject of Constitutional Law, and the subject of this paper is on The Form of
Indonesian Law products. This paper consists of a summary and an analysis along
with a commentary. The Constitutional Law of Indonesia remain a cornerstone of
Indonesian constitutional law. Prof. Jimly has been extraordinarily influential since its
publication in compelling this book which was initially published in Indonesian
language is divided into eleven chapters. It discusses deeply about various legal
matters related to Indonesian constitutional law. First, basic theories of constitutional
law from prominent scholars are explained in Chapter 1. The author also tells about
the increasing trend on constitutional law study in Indonesia in this chapter. Second,
the development of the Indonesian Constitution from pre-independence era to the
present is illustrated in Chapter 2.
In this chapter, the book describes about the concept of the people’s sovereignty and
the parliament institutionalization. In the same chapter, the author also wrote about
the history of Indonesian parliament. Next, the form of Indonesian law products is
elucidated in Chapter 4. The form is divided into five categories, namely fundamental
regulations and legislations, state administrative decisions, judicial verdicts, quasi
regulations. Using his enormous experiences as constitutional law scholar over 25
years, the book written by Prof. Jimly becomes the first comprehensive English book
on Indonesian constitutional law which can be used as trusty reference by any
academicians or researchers across the globe. Furthermore, it can also be used as a
1
1text book in universities not only in Indonesia, but also on other countries who are
interested to study Indonesia’s legal system. In addition, this masterpiece is also
influenced by his significant roles in developing Indonesia’s state administration
system when he served as Assistant to President B.J. Habibie (1998-1999) and the
first Chief Justice of Indonesian Constitutional Court (2003-2008).
A promising constitutionalism has risen dramatically in Indonesia over the last
decade. As the fourth largest in total population among the nations and the first
largest Muslim citizens in a democratic country, Indonesia is believed to be a role
constitutional state model for other developing countries. Hence, the existence of
Prof. Jimly’s book will generate the study of comparative constitutional law towards
Indonesia.
The political reform in Indonesia started in 1998 when President Soeharto was
forced to resign from his presidential office after 32 years in power. This momentum
has transformed Indonesian political culture from an authoritarian state to the third
largest democracy in the world after India and United States. It also led to
Indonesian constitutional reform which was marked by the amendments of 1945
Constitution for the first time in 1999.2 The political reform in Indonesia started in
1998 when President Soeharto was forced to resign from his presidential office after
32 years in power. This momentum has transformed Indonesian political culture from
1 Stefanus Hendrianto & Fritz Siregar, Developments in Indonesian Constitutional Law: The
Year 2015 in Review, Int’l J. Const. L. Blog, Nov. 25, 2016,
at: http://www.iconnectblog.com/2016/11/developments-in-indonesian-constitutional-law-
the-year-2015-in-review
2 The Democratic Constitutional State of Indonesia (PDF Download Available). Available
from:
https://www.researchgate.net/publication/287444607_The_Democratic_Constitutional_Sta
te_of_Indonesia [accessed Feb 08 2018].
2
an authoritarian state to the third largest democracy in the world after India and
United States. It also led to Indonesian constitutional reform which was marked by
the amendments of 1945 Constitution for the first time in 1999. These constitutional
amendments have fundamentally changed the Indonesia’s state administration
system. It created a better form of constitutional practices both in national and
regional level. For instance, reducing the power of the President, creating the direct
mechanism of presidential and regional head elections, guaranteeing the human
rights protection and establishing the Constitutional Court.3
The changes of 1945 Constitution almost reach 300% from its original contains.
Consequently, it is not easy for most of the people to understand the new legal and
political system in Indonesia, particularly for the English speaking readers.
Fortunately, Prof. Dr. Jimly has written wide-ranging information about the current
constitutional law system on his 5th book entitled “The Constitutional Law of
Indonesia: A Comprehensive Overview”.4
3 The Constitutional Law of Indonesia: A Comprehensive Overview. Edited by Pan Mohamad

Faiz, Sweet & Maxwell Asia, Nov. 2009.

3
Summary
On August 13, 2016, the Indonesian Constitutional Court celebrated its thirteenth
year anniversary. This report offers an overview of the Indonesian Constitutional
Court’s case law in the 2015/2016 term (a Term of the Constitutional Court begins in
mid-August, and usually Court sessions continue until early August in the following
year).5
The last term also marked the Court’s first full term under the chairmanship of Arief
Hidayat, who took over the helm of Chief Justice in January 2015. The 2011
Amendment to the Constitutional Court Law prescribes that the Chief Justice has a
limited term of two and half years, which means that Arief Hidayat will be the Chief
Justice until 2017. Most of the decisions of the Indonesian Constitutional Court have
not been officially translated into English. This summary aims to offer a quick
overview of the Court’s decisions for comparative judicial scholars who are
interested in the Indonesian Constitutional Court’s case law. The first section of the
report reviews some notable statutory review cases from the last term. The second
section reviews the Court’s decisions in Regional Elections Disputes. The primary
focus of the report will be on the statutory review, in which it describes nine cases.
We would classify the cases under four sections: judicial review of electoral laws,
judicial review of marriage law, socio-economic rights, and administrative law related
cases. In the last term, the Court received 58 applications for statutory review. 6The
Court decided to accept five cases on merits and granted four unconditionally

from:
4
constitutional decisions. The Court dismissed 31 cases on technical grounds and
rejected 11 petitions on merits.7
Judicial Review of Electoral Laws
This section addresses judicial review electoral process of Governor, Bupati
(Regent) and Mayor, commonly known as “regional election head” (Pemilihan
Kepala Daerah – Pilkada). The crux of the matter was that Indonesia did not run
regional elections simultaneously before 2016. On average, over 100 direct regional
elections have been run annually, with the Indonesian citizens voting in many
separate ballots at different places and times. In his last year in office, President
Susilo Bambang Yudhoyono tried to push an initiative to hold simultaneously
regional elections. The initiative turned out to be a political crisis as the lame duck
House manipulated the bill on regional election by scrapping entirely direct regional
elections. On October 2, 2014, two weeks before he left office, President Yudhoyono
issued an emergency degree8, which reinstated the direct regional elections and
provided simultaneous regional elections every five years. The Constitution requires
an emergency decree to be approved by the House of Representative during its next
session. On January 20, 2015, the House approved the emergency decree and
subsequently, President Jokowi signed it into a Law. But President Jokowi did not
fully agree with the content of emergency decree that he inherited from his
predecessor, and, therefore, his administration immediately proposed an
7 Manan, M. (2011). Review of The Constitutional Law of Indonesia: A Comprehensive

Overview - The Constitutional Law of Indonesia: A Comprehensive Overview by Asshiddiqie
Jimly [Selangor, Malaysia: Sweet & Maxwell Asia, 2009. li 751 pp]. Asian Journal of
Comparative Law, 6, 1-4. doi:10.1017/S219460780000051X.
5
amendment to the Law. On March 18, 2015, Jokowi signed the new Law, which
amended the previous Law on Regional Elections. Soon, the Law became the object
of serious constitutional litigation in Indonesia.9
The Constitutional Court Decision No. 33/PUU-XIII/2015 (the Political Dynasty case)
One of the central concerns of the election of Governor, Bupati, and Mayor is the
issue of a political dynasty. By 2013, there were at least 23 political dynasties at the
provincial and district level (Kabupaten) throughout Indonesia that occupied various
political offices such as governor, mayor, Regional Chief (Bupati), or the head of
Regional Parliament. Law No. 8 of 2015 on Regional Elections tried to address the
political dynasty issue by prohibiting any candidate who has family ties with the
incumbent. The Law stated that a candidate in a regional election must not have any
conflict of interest to the incumbent (regional head). The elucidation of the statute
stated that “conflict of interest” meant that a candidate must not have any blood or
marital ties to the incumbent governor, district head or mayor, or the respective
Deputy positions unless the incumbent has passed non-consecutive terms limit (jeda
satu Kali Jabatan).10
The claimant, Adnan Purichta Ichsan, is a member of an influential political dynasty
in South Sulawesi. He is the son of the incumbent of the Gowa district head, Ichsan
Yasin Limpo, and a nephew of the incumbent governor, Syahrul Yasin Limpo. His
grandfather was also a former Gowa district head. Moreover, the Limpo family also

10 The Democratic Constitutional State of Indonesia. Available from:
6
has brothers, sisters, sons, and in-laws in key posts in regional legislatures and the
House of Representatives (DPR). Adnan Ichsan was considering running in the
regional election 11in December 2015 to replace his father as Gowa district chief.
The claimant argues that the Law impinges on his constitutional rights, especially
right to be free from discriminative treatment. The Court accepted the claimant’s
argument and ruled that the provision on political dynasties violates the constitutional
rights of citizens to obtain equal opportunities in government. Moreover, the Court
ruled that the elucidation of the statute is not only discriminative but also created a
new rule by adding a nonconsecutive terms clause. The Court ruled a
nonconsecutive terms clause did not exist in the body of the statute, and, therefore, it
cannot be a basis for further regulation on the regional election.12
The Constitutional Court Decision No. 42/PUU-XIII/2015 ( the Ex-Convict case)
Apart from the issue of political dynasties, the Court had also deal with the
prohibition against former convicts and serious criminal offenders to run for public
office. The Regional Election Law stated that no one who has been convicted of a
crime, in which the minimum prescribed sentenced is five years may run for the post
of governor, mayor or bupati. The elucidation of the statute, however, provided that
the prohibition does not apply to a former convict who has honestly and publicly
acknowledged his conviction, and at least five years have passed since he
11 The Constitutional Law of Indonesia: A Comprehensive Overview. Edited by Pan

Mohamad Faiz, Sweet & Maxwell Asia, Nov. 2009.
7
completed his sentence. Furthermore, the prohibition does not apply to former
political prisoners.13
The claimants are former convicts, and they intended to run as bupati in their
respective regency. They retained a prominent constitutional lawyer and former
Minister of Justice, Yusril Ihza Mahendra to challenge the Law before the
Constitutional Court. Mahendra argued the prohibition for former convicts to run for
public office is contrary to the equal protection clause of the Constitution.
Interestingly, Mahendra also argued that the prohibition is contrary to Article 28J (2)
of the Constitution. Article 28J (2) is the General Limitations of Bill of Rights clause,
which stipulates that “in the enjoyment of their rights and freedoms, each person is
obliged to submit to the limits determined by law… and taking into consideration
morality, religious values, security, and public order, in a democratic society.”
Mahendra argued that the prohibition for former convicts to run public office failed to
meet the standard of Article 28J (2) as it could not be justified by any consideration
of morality, religious values, security, and public order, in a democratic society.14
In its judgment, the Court made reference to its previous decision in the Robertus
case, in which the Court held that there must be some exception to the prohibition of
former convicts to hold public office. The first exception is that the candidates must


8
honestly and publicly disclose the conviction for his/her crime.15 Secondly, the
candidates must not be repeat offenders. Third, at least five years must have passed
since the candidate completed his sentence. Finally, the candidates must not have
had their right to be elected revoked by the Court that convicted them. Second, the
Court acknowledges that Law No. 8 of 2015 has tried to accommodate the Court’s
decision in the Robertus case. 16Nevertheless, the lawmaker did not adopt the
Court’s decision in the body of the statute, but rather in the elucidation. The Court
held that the key exception in the Robertus case is that former convicts must publicly
and honestly acknowledge their status. If former convicts have publicly
acknowledged their crimes, then the second and fourth exception won’t be
necessary. Nevertheless, if former convicts fail to acknowledge their backgrounds
and crimes, then the third exception shall be applied. Based on such reasoning, the
Court held that “the provision is conditionally unconstitutional as long as it excluded
any former convicts who have confessed publicly and honestly that they are former
convicts.” In other words, the provision should be interpreted to allow former convicts
who have confessed publicly and honestly to run a public office.17

from:

17Stefanus Hendrianto & Fritz Siregar, Developments in Indonesian Constitutional Law: The
9
The Constitutional Court Decision No. 41/PUU-XII/2014 (the Civil Servant Neutrality
case)
This case involved a constitutional challenge against Law No. 5 of 2014 on State
Civil Administration (Undang – Undang tentang Aparatur Sipil Negara). The
challenge was directly related to the Regional Election as the crux of the matter is
whether civil servants who want to run for public office shall resign from their
position. The State Administration Law provided that public civil servants who want
to run as a candidate for the election of governor, bupati, mayor or its respective
deputies must resign from their positions by the time they announced their
candidacy.18
The prohibition must be understood from the historical context of Indonesian political
history. Under the New Order military dictatorship, the election process was
administered by civilian bureaucracy; from the Minister of Home Affairs on the top as
the designated Head of Election Commission to the lowest level of a Voter
Registration Committee (Panitia Pendaftaran Pemilih) in every village, chaired by the
village head. All of these administrative apparatuses have a strong allegiance to the
then ruling party, Golkar, and they would take any means necessary to help Golkar
secure victories. With the support of military and these administrative apparatuses,
Golkar was able to maintain its winning streak for three decades.19
10
After the fall of the military regime, several measures were taken to prevent civil
servant allegiance to certain political parties because they were no longer required to
vote for the government’s party. But if they were interested in participating in party
activities, they could take a leave of absence without pay. The State Civil
Administration Law took this further by requiring public civil servants to resign if they
want to run for public office.
The claimants are eight public civil servants who argued that the Law has deprived
their right to public office. The claimants argued that the prohibition was
discriminatory and contrary to the equal protection clause of the Constitution,
especially the right to obtain equal opportunities in government. Interestingly, the
claimants made the bizarre argument that the Law was discriminatory because it
does not require a lawyer, accountant, or medical doctor to resign from their position
if they want to run a public office.20
The Court cited the following previous decisions. First, in the DPD Election case, the
Court dealt with the issue whether a public civil servant must resign to run for the
election of Regional Representative Council (Dewan Perwakilan Daerah – DPD). In
the DPD Election case, the Court held that the prohibition for a public servant to
resign to join election of DPD is constitutional. 21Furthermore, the Court also
reaffirmed its position in the Letter of Resignation case, in which the Court held that it

11
is necessary for a member of Armed Forces or Police Force to submit a letter of
resignation if they want to run for public office. Based on its two previous decisions,
the Court held that a requirement for a public civil servant to resign to run for
governor, bupati, mayor, or its respective deputies is not contrary to the
Constitution.22
Nevertheless, the Court ruled that there is a concern over the timing of the
resignation, as the Law prescribed that a public civil servant must resign by the time
he or she registers as a candidate for governor, bupati, or mayor. The Court
considered that a similar requirement does not apply to a public civil servant who
wants to run for parliamentary election, both at the national and regional level. The
Court then ruled that ideally public civil servants shall resign by the time they have
secured a nomination as candidates for governor, bupati, or mayor instead of by the
time they register their candidacy. Finally, the Court held that the provision is
conditionally unconstitutional as long as it requires public civil servants to resign by
the time they register as a candidate instead of by the time they have secured a
nomination for a candidate. In other words, the provision must be interpreted that it
requires public civil servants to resign after they have secured a nomination as a
candidate.23
Judicial Review of the Marriage Law
In the last term, the Court issued two important decisions about a constitutional
review of Law No. 1 of 1974 on Marriage. The Law has been controversial since its

12
enactment more than forty years ago. 24Before the passing of the Law, marriage for
the majority of the Muslim population in Indonesia was governed exclusively by the
rules of Islamic law. The New Order military regime attempted to curb arbitrary
divorce and polygamy by passing new rules on marriage that restricts a Muslim
husband’s power unilaterally to repudiate his wife or to take a second wife and
requiring the consent of the parties to marriage. Moreover, the regime tried to reduce
child marriage by imposing a minimum marriage age of 18 for girls and 21 for boys.
The bill immediately provoked strong opposition from Islamic political forces as they
accused the bill of being against the Islamic doctrine on marriage. In the end, the
Government reached a compromise with the Islamic demands. Nevertheless, the
legislatures did not entirely remove some provisions that were considered contrary to
Islamic doctrine. Forty years later, the Law was still controversial. For Islamic forces,
the Law is the legacy of the anti-Islamic doctrine, but the secular forces view the Law
as not providing sufficient protection for women and children.25
The Constitutional Court Decision No. 30-74/PUU-XII/2014 (The Marriageable Age
case). One of the government’s compromises on the Marriage Law is lowering the
marriageable age from 21 to 19 for men and from 18 to 16 for women. In the
Marriageable Age case, a women’s group NGO challenged the constitutionality of
the provision that provides that the minimum marriageable age for 16 years for
women. They argued that the provision discriminated against girls due to the


13
different minimum age of marriage for boys. They sought an increase in the
minimum marriageable age for women to 18 years, arguing that the current marriage
age is also inconsistent with the statutory regulation on child protection, which
defines a child as being a person below the age of 18 years.26
In a 8-1 decision, the Court decided to reject the claimants’ petition entirely. The
Court began its judgment by citing its previous decision that dealt with the Marriage
Law. In the Polygamy case, the claimant objected the provisions in the Marriage Law
that prevented him from engaging in polygamy. The claimant argued that the
Marriage Law has deprived his freedom to worship as guaranteed by the
Constitution (Article 29 § 2), as he believed that polygamy is a type of worship under
Islamic doctrine. In the Polygamy case, the Court considered that polygamy was not
the invention or creation of Islamic teaching as it had existed long before the Prophet
Muhammad received the revelation. 27The Court believed that the Islamic teaching
on polygamy aims to protect the dignity of women and to ensure that men would
practice polygamy arbitrarily. The Court then moved to discuss the purpose and
nature of marriage according to Islamic teaching, which is to achieve peaceful heart
(sakinah), as a man and a woman in a marital relationship will have peace.
According to the Court, a couple could achieve sakinah if they could maintain a
loving relationship without hoping for anything in return, but only for their desire to
make sacrifices to bring happiness to each other (mawaddah). The Court concluded

14
that Islamic law tries to achieve mawaddah by requiring that men seek permission
from his wife before entering into another marriage.28
Based on the Polygamy case, the Court concluded that marriage has intrinsic sacred
religious value and that each religion has its rules on marriage. For instance, Islamic
Law does not set any age limit for marriage, the only requirement from Islamic Law
perspective is that the couple has reached maturity (akil baligh) and is capable of
distinguishing between good and evil.29 The Court ruled that it would not intervene
into the religious domain on the requirement of marriage, especially on the age limit.
Moreover, the Court ruled that there was no guarantee that with increasing the age
from 16 to 18 there will be a reduction of divorce rates, health improvements, and
other social problems. The Court ruled that those social problems were not simply
caused by a lower age limit of marriage but rather by different factors. Even if the
claimant’s assertion was correct, the Court ruled that it is not a domain of the
judiciary to increase the age limit of marriage, but rather it is the domain of the
legislative to increase the age limit for marriage.

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Commentary
The Constitutional Court Decision No. 68/PUU-XII/2014 (the Interfaith Marriage
case)30
As mentioned earlier, the bill of Marriage Law, which was introduced in 1973, caused
significant controversy. In particular, Muslim criticism was directed at the Law’s
acceptance of interreligious marriages. The bill stated, “Any differences of
nationality, ethnicity, citizenship, place of origin, religion/belief system, shall not
become an obstacle for marriage.” As a result of the strong opposition and potential
for serious unrest, the government agreed to drop the provision that would have
specifically allowed for interreligious marriages.31 The second controversial provision
was on the legitimacy of marriage. The Law stated, “marriage is legitimate if it has
been performed in front of the civil registrar; registered by the civil registrar who
witnesses the marriage; and performed according to the Law and /or rules of
marriage that adhered by parties concerned, as long as it does not contrary to the
Law.”32 For the Islamic forces, this provision meant marriage would be governed
simply by civil law and religion would be excluded entirely from governing marriage.
Moreover, this provision opens a door for interreligious marriage; any interreligious
marriage would be legitimate as long as it was performed and registered by a civil
registrar. After a heated debate in the Parliament, the government agreed to


16
compromise and adopted a new provision, which states that a “marriage is legitimate
if it has been performed according to the laws of the respective religions and beliefs
of the parties concerned.” The Law further states that “every marriage must be
registered according to the regulations of the existing regulation.33”
Some people believe that these provisions have closed the door for interreligious
marriage because for a marriage to be lawful, a recognized religion must conduct the
marriage ceremony. In most cases, at least one of the parties will adhere to a
religion that does not allow a person to marry someone of a different faith.
Furthermore, a marriage must be registered and a Muslim marriage must be
registered with the local Office of Religious Affairs, which would refuse to register an
interfaith marriage.34
In the Interfaith Marriage case, three lawyers and a law student challenged the
provision on the legality of marriage and argued that the provision prevents couples
with different religions from registering their marriage. The claimants came to the
Court as concerned citizens, and they posited that there is a high probability that
they might engage in interreligious marriage. The claimants argued that there are
many couples with different faith background that could not register their marriages.
Consequently, they try to bend the Law in many different ways such as planning to
marry in a foreign country, subjecting themselves under the religious rule of one
party, or changing their religion temporarily before the marriage. They challenged

17
the provision on the basis that it is inconsistent with several constitutional provisions,
primarily the right to form a family and to procreate based upon lawful marriage.
Furthermore, the claimants argued that the Marriage Law violates the constitutional
guarantee of religious freedom because the Law allows the state to interfere into a
religious realm in determining the legitimacy of marriage.35
The Court unanimously rejected the claimants’ petition, but it did not provide a
lengthy explanation to justify its decision. The Court ruled that although the
Constitution guarantees a right to marry and to procreate, there is nevertheless a
general limitation of the bill of rights clause (Article 28J, 2) 36that allows the state to
limit such a right based upon consideration of religious values. Furthermore, the
Court held that the Marriage Law did not violate the Constitution, as marriage
includes “spiritual and social” aspects, not just formal aspects, and, thus, the state
must provide administrative legality for nuptials validly performed according to
religion.37
Socio-Economic Rights
The Indonesian Constitutional Court did not have robust bodies of jurisprudence on
socio-economic rights like the Courts in South America and South Africa.
Nevertheless, the Court dealt a lot with socio-economic issues, especially during its

18
infancy period. In the last term, the Court decided two major cases that related to
socio-economic rights.38
The Constitutional Court Decision No. 95/PUU-XII/2014 (the P3H case)
The Petitioners challenged the constitutionality of Law Number 18 Year 2013 on the
Prevention and Eradication of Forest Destruction Law (Pencegahan dan
Pemberantasan Perusakan Hutan – P3H) and Law Number 41 Year 1999 on
Forestry. The Petitioners consist of the representative chieftains, indigenous
community leaders, farmers and non-governmental organizations that work in
preventing corruption and forest destruction in Indonesia. The Petitioners challenged
the constitutionality of the entire article of Law Number 18 Year 2013 and seek the
Court to annul the Law as a whole. Also, the Petitioners challenged the
constitutionality of five articles in Law Number 41 Year 1999. 39
Therefore, there will be a paradox if, on the one hand, we recognize the people who
lived for generations in the forest and in need of forest products but on the other
hand, the community threatened with criminal sanction. Instead, the state had to be
present to provide protection to such communities. The Court declared that Article 50
(3) of the Forestry Law, which provided a criminal sanction for whoever utilizes the
forest areas without a permit from the Government, is conditionally unconstitutional
as long as it applied to indigenous people who have been living in the forests for
generations and have no commercial purposes. This case was filed on September

19
10, 2014, during the chairmanship of Hamdan Zoelva; but the Court rendered the
decision on December 10, 2015, under the chairmanship of Arief Hidayat. In our
observation, Chief Justice Arief Hidayat did not participate in justice deliberation. The
decision was signed by only eight justices, who did not include Chief Justice Arief
Hidayat, even though Hidayat participated in the examinations hearing. There was
no official explanation on why the Chief Justice was absent from the deliberation
meeting.40
The Constitutional Court Decision No. 61/PUU-XIII/2015 (the Migrant Worker case)
Every year, many Indonesians flock abroad dreaming of opportunity – to places such
as Saudi Arabia, Kuwait, Hong Kong and Singapore.41 In fact, Indonesia is one of the
biggest providers of overseas migrant workers. The Petitioners were former migrant
workers who have worked in Saudi Arabia. Nevertheless, they could not re-apply to
work there because the Indonesian Government imposed a moratorium on 21
countries in the Middle East since 2009. To protect Indonesians that work overseas,
Indonesia does not send migrant workers to countries that are in a war zone,
affected by a natural disaster or deadly disease. Also, the Indonesian government
only sends migrant workers to friendly countries, which are those countries that have
already established a diplomatic channel with Indonesia. This rule, however, does
not apply to Taiwan, with whom Indonesia does not have diplomatic relations. For
some unknown reason, Taiwan is not a country in the moratorium list of the
20
Indonesian government. The Petitioner argued this moratorium contradicts the
International Convention for the Protection of the Rights of All Migrants Workers and
Members of Their Families, which Indonesia has ratified. The Petitioners argued that
this restriction contradicts the principle of equality before the law, the right to get
decent life (Article 27), and the right to get fair treatment (Article 28I (2)). 42
The Court rejected the Petitioner’s argument and held that the introduction of a
moratorium aims to protect Indonesian overseas workers. Further, the Court held
that due to security reasons, the Government has authority to stop sending
Indonesian workers to a country in conflict areas.43
Administrative Law Related Cases
The Constitutional Court Decision No. 43/PUU-XIII/2015 (the IKAHI case)
This case dealt with the scope and authority of Judicial Commission in selecting the
district court judges, administrative judges, and religious courts. The petitioners were
Five Supreme Court Justices and Supreme Court’s administrative clerk (Panitera).
They came to the Court in their capacity as the member of the Central Committee
(Pengurus Pusat) of Indonesian Judges Association (Ikatan Asosiasi Hakim
Indonesia – IKAHI). They argued that the authority of the Judicial Commission to
select lower judges is contrary to the Constitution. The petitioner made a reference
to Article 24C of the Constitution which provides, “there shall be an independent
Judicial Commission which shall possess the authority to propose candidates for
21
appointment as justices of the Supreme Court and shall possess further authority to
maintain and ensure the honor, dignity, and behavior of judges.” The petitioners
argued that the term “possess further authority,” does not include the selection of
judges of a general court, religious court, or administrative Court.44 The conflict
between the Supreme Court and Judicial Commission dated back in 2006. In the
Judicial Commission I case, 20 Supreme Court Justices filed a judicial review to
challenge the authority of the Judicial Commission to supervise the ethical conduct
of Supreme Court Justices.45 The Court ruled that the Judicial Commission has the
authority to supervise the ethical conduct of the Supreme Court, but the object of
supervision remained unclear. The Court concluded that lack of clarity on the
Commission’s supervisory authority had created unintended consequences,
including that the Judicial Commission and the Supreme Court each came out with
their own interpretation. Finally, the Court held that all provisions in the Judicial
Commission Law that relate to its supervisory role should be declared
unconstitutional. In a decade after issuing the Judicial Commission I case, the
conflict between the Supreme Court and the Judicial Commission resurfaced, which
led the five Supreme Court Justices to file a challenge in the Constitutional Court.
After long deliberation, the Constitutional Court accepted the claimant’s argument
and ruled that the authority of the Judicial Commission in the recruiting process of
district court judges, religious court judges, and administrative court judges is
unconstitutional. The Court made reference to the debate over the constitutional

22
amendment, in which the drafter intended to establish a Judicial Commission to
participate in the selection of Supreme Court only.46
The Court, however, only relied on the testimonies of some politicians who were
involved in the amendment process, but it did not seem to bother to check the
minutes of the debate during the amendment process.47 Based on those testimonies,
the Court believed that the idea to have a Judicial Commission as an authority to
select judges from the lower court was voted down during the constitutional
amendment debate. The Court pushed their interpretation on it by stating that “such
notion (the authority to select lower court judges) had been discussed and rejected
by the People Consultative Assembly to become a norm in the Constitution, and,
therefore, the Court shall not entertain the idea unless there is a new constitutional
amendment.”48
Furthermore, the Court made reference to the judicial reform process that took place
after the fall of the military government, in which the responsibility of the Court
management was transferred from the Executive (Ministry of Justice) to the Supreme
Court, thus establishing a “one roof system.” The Court finally held that the “one roof
system” implied that the Supreme Court has authority to select and recruit lower


23
court judges, although the Constitution does not explicitly mention that the Supreme
Court possesses such authority.49
The Constitutional Court Decision No. 76/PUU-XII/2014 (the Parliamentary Immunity
case). The petitioners were a private attorney and an NGO, the Association of
Society of Criminal Justice Reform (Perkumpulan Masyarakat Pembaharuan
Peradilan Pidana). They challenged the MD3 Law, which granted immunity to
Members of Parliament. The Petitioners challenge the constitutionality of the
provision, which specifies that “the investigation over members of parliament, who
were suspected to be involved in criminal wrongdoing, shall obtain written consent
from Parliament Ethic Council.”
In the last decade, Indonesians have witnessed larger patterns of members of
national parliament being arrested for corruption during their term in office. The Anti-
Corruption Commission reported that since its inception in 2002, the Commission
had detained 119 Members of National Parliament. In response to this phenomenon,
the DPR (House of Representatives) decided to add an extra layer of immunity to
Members of Parliament. The Police or Anti-Corruption Commission must obtain
written consent from the Parliament Ethics Council before they could open a criminal
investigation on Member of Parliaments.50


24
First, on the standing issue, the Court ruled that the private practitioner had no
standing to challenge the Law. Nevertheless, the Court granted standing to the NGO
based on their experience in conducting legal reform in criminal law in Indonesia.

51The Court ruled that it has standing as a public interest advocacy group. 52On the
merit of the case, the Court considered that the members of the Parliamentary Ethic
Councils have a conflict of interest in issuing a written consent because they are also
Members of Parliament. The Court ruled that if there is a need to start a criminal
investigation against a Member of Parliament, the written consent should be issued
by the President as the Head of State instead of the Parliament Ethics Council.
The Court finished its deliberation meeting on November 20, 2014, under the
chairmanship of Hamdan Zoelva. Surprisingly, it took almost a year for the Court to
announce its decision on September 22, 2015, which was already under the
chairmanship of Arief Hidayat. Regional Election Cases (Pilkada cases) therefore
extend into more decisions upon this term. In the last term, the Court’s docket was
flooded with 151 cases of Regional Election Disputes (Pemilihan Kepala Daerah –
“Pilkada”). Out of the 151 Pilkada cases, the Court only granted five favorable
decisions; rejected three cases on the merit, and dismissed 137 cases on technical
grounds. 26 cases were withdrawn from the Court.53


25
The authority to review regional election disputes is one of the most unsettling issues
in Indonesian constitutional history. The Constitution is vague on the issue but the
2004 Regional Government Law assigned the Supreme Court to handle the regional
election dispute. The Constitutional Court under the chairmanship of Jimly
Asshiddiqie, however, ruled that there should be one forum to settle general
elections, which include regional election dispute.54 In 2008, the Parliament and the
President agreed to pass the Law that transferred the authority to handle general
election dispute to the Constitutional Court. The Constitutional Court then took over
the jurisdiction to handle regional election dispute from the Supreme Court.
The combination of the huge backlog of regional election disputes and the series of
corruption scandals that arose from these disputes pushed the Court to assess its
jurisdiction over regional election disputes. In 2014, the Court under the
chairmanship of Hamdan Zoelva decided to strip the Court’s jurisdiction to review
Pilkada dispute in the Regional Election Dispute case. The Court’s majority held that
the drafters of the Constitution never intended to include the election of the Governor
and the Head of the District (Bupati) within the textual phrase “general election.” The
Court ruled that the drafters only intended to include the presidential election and the
legislative election, including the election of members of the national and regional
parliament. The Court thus held that regional election disputes are not within the
scope of its authority.55

26
In less than a year after the Court stripped out the Regional Election Dispute from its
docket, President Joko Widodo signed a new Law, which stated that a special
tribunal should handle the regional election dispute. The Law further states that the
special tribunal shall be established before the simultaneous regional elections take
place across the country. 56But the Law provides a transitional clause, in which the
Constitutional Court shall handle the regional election dispute before the
establishment of the special tribunal.
President Jokowi signed the Law on March 8, 2015, and the General Election
Commission decided to launch the first stage of the simultaneously regional election
on December 9, 2015. Nevertheless, when the Regional Elections took place on
December 9, 2015, the special tribunal had not been established. Moreover, the Law
did not specify who has the mandate to establish the special tribunal and when is the
deadline to establish the special tribunal. Consequently, the Constitutional Court has
no other choice but to settle Regional Election disputes that arose after December 9,
2015. At this time, it is not clear when the special tribunal will be established 57. In the
meantime, the General Election Commission has laid out a plan to hold a
simultaneous general election in February 2017 and June 2018. Apparently, the
Court will continue to handle the regional election disputes indefinitely. 58
56The Democratic Constitutional State of Indonesia. Available from:

58The Democratic Constitutional State of Indonesia. Available from:

27
Having reviewed some major decisions of the Indonesian Constitutional Court in
2015, it is worth looking at what the future holds for Indonesian constitutional law.
First, in the last term, the Court began to cite precedents more often than the
previous courts. After thirteen years of operation, the Court has established a
sufficient body of jurisprudence as the basis of precedents.59 It is interesting to see
how the role of precedents may evolve in the Court’s jurisprudence in the future. In
civil law jurisdictions like Indonesia, judges do not adopt a stare decisis principle in
adjudication. Precedents usually serve as a persuasive role. Civil law courts are
expected to take past decisions into account when there is a sufficient level of
consistency in case law. Although the Constitutional Court began to rely more on
precedents, this practice is still characterized by inconsistency; in many instances,
the Court tends to ignore precedents.60
In the recent years, some scholars have tried to explain the development of the
Indonesian Constitutional Court in the context of the success of democratic
consolidation. This explanation is based on the assumption that the first generation
Court was an agent of democratization, or a Court with a mission to improve the
functioning of the democratic system. After the state has achieved some success in
consolidating democracy, the second generation Court could intervene less
frequently in the advancement of democratization. The Court’s decisions in the last
term, however, suggest that there is still a large gap to be filled by the second
generation Court. For instance, the Court continues to deal with many complex

28
cases that involve the judicial review of the regional electoral process. 61 Thus, the
connection between the first generation Court and democratic consolidation appears
to be quite loose in reality. The democratic consolidation process is almost never
encompassed in one event—and in the case of Indonesia, it may span decades in
the form of power struggles and political consolidation processes. Consequently, the
Court still has to fill a lot of gaps in the democratic process in the future. Both
Asshiddiqie and Mahfud were known for their bold and ambitious approach to
constitutional interpretation. Although their leadership styles are different, they both
were willing to go toe to toe with the Executive and the Legislative branches62. The
Court under the leadership of Arief Hidayat, however, tends to play it safe against its
counterparts. Moreover, some of the Court’s decisions could be considered as
conservative. For instance, the Court struck down the prohibition of political
dynasties, and it moved to cripple the Judicial Commission. Bold and ambitious
judges like Asshiddiqie and Mahfud are rare breeds and it is less likely that the Court
will be staffed with towering
figures like them in the future. Thus, the challenge is how the Court could sustain a
commitment to liberal constitutionalism with the help of non-ambitious judges.63

Overview. Asian Journal of Comparative Law, 6(1), pp. -. Retrieved 8 Feb. 2018, from
doi:10.2202/1932-0205.1363

29
BIBLIOGRAPHY
The Democratic Constitutional State of Indonesia (PDF Download Available)
https://www.researchgate.net/publication/287444607_The_Democratic_Constitutiona
l_State_of_Indonesia [accessed Feb 08 2018].
Stefanus Hendrianto & Fritz Siregar, Developments in Indonesian Constitutional
Law: The Year 2015 in Review, Int’l J. Const. L. Blog, Nov. 25, 2016,
at: http://www.iconnectblog.com/2016/11/developments-in-indonesian-constitutional-
law-the-year-2015-in-review
Manan, M. (2011). Review of The Constitutional Law of Indonesia: A Comprehensive
Overview - The Constitutional Law of Indonesia: A Comprehensive Overview by
Asshiddiqie Jimly [Selangor, Malaysia: Sweet & Maxwell Asia, 2009. li 751 pp]. Asian
Journal of Comparative Law, 6, 1-4. doi:10.1017/S219460780000051X.
The Constitutional Law of Indonesia: A Comprehensive Overview. Edited by Pan
Manan, M. (2011). Review of The Constitutional Law of Indonesia: A Comprehensive
Overview. Asian Journal of Comparative Law, 6(1), pp. -. Retrieved 8 Feb. 2018,
from doi:10.2202/1932-0205.1363
30

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Table of Contents

with a commentary. The Constitutional Law of Indonesia remain a cornerstone of

publication in compelling this book which was initially published in Indonesian

matters related to Indonesian constitutional law. First, basic theories of constitutional

the development of the Indonesian Constitution from pre-independence era to the

present is illustrated in Chapter 2.

regulations and legislations, state administrative decisions, judicial verdicts, quasi

regulations. Using his enormous experiences as constitutional law scholar over 25

on Indonesian constitutional law which can be used as trusty reference by any

academicians or researchers across the globe. Furthermore, it can also be used as a

interested to study Indonesia’s legal system. In addition, this masterpiece is also

influenced by his significant roles in developing Indonesia’s state administration

first Chief Justice of Indonesian Constitutional Court (2003-2008).

A promising constitutionalism has risen dramatically in Indonesia over the last

largest Muslim citizens in a democratic country, Indonesia is believed to be a role

Indonesian constitutional reform which was marked by the amendments of 1945

amendments have fundamentally changed the Indonesia’s state administration

system. It created a better form of constitutional practices both in national and

mechanism of presidential and regional head elections, guaranteeing the human

rights protection and establishing the Constitutional Court.3

political system in Indonesia, particularly for the English speaking readers.

Indonesia: A Comprehensive Overview”.4

3 The Constitutional Law of Indonesia: A Comprehensive Overview. Edited by Pan Mohamad

Year 2015 in Review, Int’l J. Const. L. Blog, Nov. 25, 2016,

year anniversary. This report offers an overview of the Indonesian Constitutional

5 The Democratic Constitutional State of Indonesia (PDF Download Available). Available

Faiz, Sweet & Maxwell Asia, Nov. 2009.

rejected 11 petitions on merits.7

Judicial Review of Electoral Laws

This section addresses judicial review electoral process of Governor, Bupati

(Regent) and Mayor, commonly known as “regional election head” (Pemilihan

Susilo Bambang Yudhoyono tried to push an initiative to hold simultaneously

an emergency decree to be approved by the House of Representative during its next

predecessor, and, therefore, his administration immediately proposed an

7 Manan, M. (2011). Review of The Constitutional Law of Indonesia: A Comprehensive

Faiz, Sweet & Maxwell Asia, Nov. 2009.

of serious constitutional litigation in Indonesia.9

satu Kali Jabatan).10

The claimant, Adnan Purichta Ichsan, is a member of an influential political dynasty

9 The Constitutional Law of Indonesia: A Comprehensive Overview. Edited by Pan Mohamad

House of Representatives (DPR). Adnan Ichsan was considering running in the

rights of citizens to obtain equal opportunities in government. Moreover, the Court

new rule by adding a nonconsecutive terms clause. The Court ruled a

cannot be a basis for further regulation on the regional election.12

The Constitutional Court Decision No. 42/PUU-XIII/2015 ( the Ex-Convict case)

11 The Constitutional Law of Indonesia: A Comprehensive Overview. Edited by Pan

respective regency. They retained a prominent constitutional lawyer and former

public office is contrary to the equal protection clause of the Constitution.

morality, religious values, security, and public order, in a democratic society.”

of morality, religious values, security, and public order, in a democratic society.14

13 The Constitutional Law of Indonesia: A Comprehensive Overview. Edited by Pan

Year 2015 in Review, Int’l J. Const. L. Blog, Nov. 25, 2016,

and honestly acknowledge their status. If former convicts have publicly

necessary. Nevertheless, if former convicts fail to acknowledge their backgrounds

Court held that “the provision is conditionally unconstitutional as long as it excluded

who have confessed publicly and honestly to run a public office.17

15 The Democratic Constitutional State of Indonesia (PDF Download Available). Available

Overview - The Constitutional Law of Indonesia: A Comprehensive Overview by Asshiddiqie

Civil Administration (Undang – Undang tentang Aparatur Sipil Negara). The

the designated Head of Election Commission to the lowest level of a Voter

Registration Committee (Panitia Pendaftaran Pemilih) in every village, chaired by the

Mohamad Faiz, Sweet & Maxwell Asia, Nov. 2009.

want to run for public office.