The Constitutional Court and Democracy in Indonesia

Copyright

Contents

About this 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 1: Introduction to the Indonesian Constitutional Court

2: Establishment of the Constitutional Court

1 The Introduction of Constitutional Courts and Judicial Review

2 The Need for a Constitutional Court

3 International Influences

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 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 Government Resistance

5.2 Explaining Government Compliance

PART 2: Constraints on the Constitutional Court’s Decision-making and Jurisdiction

4: External Constraints: 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 Constraints Imposed by 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 Critique of the Bibit and Chandra Injunction case (2009)

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 3: Constitutional Challenges to Electoral Statutes

7: Indonesian Elections: Systems, Laws and Scope for Challenge

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)

5 Electoral Districts and Seat Allocation

5.1 Seat Allocation

5.2 Sisa Suara Case (2009)

5.3 Third-Round Allocation Dispute (2009)

6 The People versus the Parties

6.1 The List Cases

6.2 Affirmative Action

6.3 Removal from Parliament

6.4 Other Types of Removal

6.5 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 4: 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 Leading to Court-ordered Recounts or Revotes

3.3 Assessing the Scope of Electoral Process Breaches

4 2009 Elections

4.1 Legislative Elections

4.2 Presidential

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

7 The End of Pemilukada in the Constitutional Court

11: Conclusions

Bibliography

Index