Azis Setyagama, Eko Wahyono. The Indonesian Constitutional Court’s position in keeping good governance through judicial review of legislation

УДК 342.4(594)

THE INDONESIAN CONSTITUTIONAL COURT’S POSITION 

IN KEEPING GOOD GOVERNANCE THROUGH

JUDICIAL REVIEW OF LEGISLATION

Azis Setyagama, Eko Wahyono

The creation of Constitutional Court by Indonesian Constitution of 1945 corrected state policy at the New Order era. Constitutional Court is authorized to review legislation when it in contrary to the Constitution, in principle of fairness, or general principle of truth. This paper aims to determine role and contribution of the Constitutional Court in maintaining good governance in Indonesia. This is normative legal research in relation to rule of law contained in legislation. Summing up the analysis, the authors conclude that good governance must be implemented on the basis of rule of law, and a new legal act must go through material tests by Constitutional Court. It can be concluded that Constitutional Court has an important role in maintaining good governance.

Keywords: Constitutional Court, good governance, judicial review, law, Indonesia.

ПОЗИЦИЯ КОНСТИТУЦИОННОГО СУДА ИНДОНЕЗИИ

ПО ОБЕСПЕЧЕНИЮ НАДЛЕЖАЩЕГО УПРАВЛЕНИЯ

ПОСРЕДСТВОМ СУДЕБНОГО ПЕРЕСМОТРА ЗАКОНОДАТЕЛЬСТВА

Азис Сетьягама, Эко Вахьоно

Создание Конституционного суда в соответствии с Конституцией Индонезии 1945 года внесло коррективы в государственную политику в эпоху Нового порядка. Конституционный суд уполномочен отменять законодательство, если оно противоречит Конституции, принципу справедливости или общему принципу истины. Целью статьи является определение роли и вклада Конституционного суда в поддержании надлежащего управления в Индонезии. Это нормативно-правовое исследование в отношении верховенства права, содержащегося в законодательстве. Подводя итог проведенному анализу, авторы приходят к выводу, что эффективное управление должно осуществляться на основе верховенства закона, а новый правовой акт должен проходить проверку в Конституционном суде. Можно сделать вывод, что Конституционный суд играет важную роль в поддержании надлежащего управления.

Ключевые слова: Конституционный суд, надлежащее управление, судебный надзор, законодательство, Индонезия.

Introduction

The history of Indonesia’s attempt to undergo rapid development after 1998 reforms (prior to which it had been shackled by the rulers of the New Order, who restricted freedom), suggested that more changes needed to be made to the Indonesian Constitution of 1945, which at that time was considered sacred.

In the New Order era the idea of making a new Basic Law in accordance with article 3 of the 1945 Constitution, was rejected a priory and could not be accepted. This is the New Order’s determination to “maintain the 1945 Constitution and will not and will not make changes to it, such as implementing it purely and consistently”, as stated in article 115 of Decree No 1/MPR/1978 concerning the Rules of the Order of the People’s Consultative Assembly. So, because the 1945 Constitution must be defended, it is taboo to discuss its existence, so in society, there is an assumption that the 1945 Constitution has been sacred or sacred and even idolized [1, p. 8].

In 2002 a new round took place in the history of the attempt by the Republic of Indonesia to amend the Indonesian Constitution of 1945. This Fourth Amendment was ratified on August 10, 2002. The Constitution had previously undergone several stages of the amendment, the first on October 19, 1999, the second on August 18, 2000, the third on November 9, 2001, and the final constitutional amendment on August 10, 2002.

With this Fourth Amendment there was a fundamental change in the Indonesian state administration system, affecting the legal system and the political system of the state of Indonesia. Provisions that were not found in the article governing the Constitutional Court in the Constitution of 1945 are now contained in the articles of the amended Constitution. The previously existing Supreme Advisory Council (DPA) was instituted by the Constitution of 1945, but now there is no article governing the DPA; many more changes have been made that are fundamental in the constitutional system.

According to Asshiddiqie, Indonesia’s representative system cannot be called a two-chamber (bicameral) representation system, but a three-chamber (tricameral) representation system. The basics that strengthen Jimly Asshiddiqie’s statement are:

1. The composition of the People’s Consultative Assembly (MPR) members has been structurally changed due to the absence of group delegates reflecting the principle of a functional representation of elements of MPR membership. Thus, the membership of the MPR consists of members of the People’s Representative Council (DPR), who reflect the principle of political representation and members of the Regional Representative Council (DPD), who reflect the principle of regional representation.

2. The MPR no longer functions as a “supreme body” with the highest authority and without any control from other state institutions, so its authority has undergone fundamental changes.

3. Adoption of the principle of separation of power (separation of power) firmly between the legislative and executive functions in the amendment of article 5 paragraph (1) in conjunction with article 20 paragraph (1) in the first amendment to the 1945 Constitution, which was later reaffirmed with the addition of article 20 paragraph (5) in the second amendment to the Constitution. With this change, the post-amendment 1945 Constitution no longer adheres to the principle of the MPR as “parliamentary supremacy” and the distribution of power system is no longer adopted by the highest institution of the MPR to state institutions under it [q.v.: 4].

The Constitutional Court is regulated by article 24c of the Indonesian Constitution of 1945, which in paragraph (1) contains the following provisions: the Constitutional Court has the authority to hear at the first and final level by giving a final decision examining of Law against the Indonesian Constitution of 1945, to decide upon the dispute over the authority of state institutions whose authorities are granted by the Constitution, to decide upon the dissolution of political parties and to decide disputes concerning the election results.

Paragraph (2) contains the following provisions: the Constitutional Court is obliged to give a decision on the opinion of the People’s Legislative Assembly regarding alleged violations by the President and/or Vice President under the Constitution. To implement the provisions of article 24c of the Indonesian Constitution of 1945, Law No 24 of 2003 on the Constitutional Court was issued. This Law gives detailed regulations on the processes, duties, and authority of the Constitutional Court. The recitals of Law No 24 of 2003 on the Constitutional Court include:

1. Whereas the Unitary State of the Republic of Indonesia is a constitutional state based on Pancasila and the 1945 Constitution aims to realize the orderliness of nation and state in an orderly, clean, prosperous, and just manner.

2. Whereas the Constitutional Court as one of the judicial authorities has an important role in the effort to uphold the Constitution from the principle of State Law in accordance with its duties and authorities as stipulated in the 1945 Constitution.

3. That under the provisions of article 24c paragraph (6) of the 1945 Constitution it is necessary to regulate the appointment and dismissal of constitutional judges, procedural laws, and other provisions concerning the Constitutional Court.

The authority of the Constitutional Court is regulated in article 10 and article 11 of Law No 24 of 2003 on the Constitutional Court; Article 10 contains the following provisions: The Constitutional Court has the authority to hear at the first and final level cases:

1. Testing a law against the 1945 Constitution of the State of the Republic of Indonesia.

2. Disputing the authority of a state institution whose authority is granted by the 1945 Constitution of the State of the Republic of Indonesia.

3. On the dissolution of political parties.

4. Disputing election results.

In its authority to examine Acts, the Constitutional Court looks at the content or material of the law, to decide whether it is contrary to the 1945 Constitution. The Constitutional Court also considers the general principle of universal truth when it is examining a law. This needs careful attention so that the decision of the Constitutional Court, after examining the material of law, really reflects a sense of justice and truth, so that it does not rule out laws produced by the legislature and the executive if the material does not reflect a sense of injustice or discrimination or harm the public or citizens. It is thus necessary that the state institution of the Constitutional Court examines the law on the basis that it is a product of the institutions of the executive and the legislature [q.v.: 8].

If we examine this in-depth, an Act is a will or desire of the ruler embodied in the form of legislation: as a consequence, legislation passed by a state is based on the law and is not based on mere power (machstaats). In addition, in the administration of the state, the government must act on the basis of the constitutional system (the Basic Law) and not on absolutism (unlimited power), so government officials must not act arbitrarily in organizing the state administration. There must be a rule of law that can be used as a foundation for organizing a country so that the citizens of the country and society can prosper. This is urged in the Preamble of the 1945 Constitution, which states that Indonesia is a just and prosperous society based on Pancasila.

For the administration of government, the general principle of good governance must be held firm by state officials. In the State Administration Law there are thirteen General Good Principles of Government that can be used as a benchmark for the state in maintaining good government. The principles are as follows:

1. The principle of legal security;

2. The principle of proportionality;

3. The principle of equality in government decisions;

4. The principle of acting scrupulously and taking heart;

5. The principle of motivation for government decisions (the principle of motivation);

6. The principle of competence;

7. The principle of fair play;

8. The principle of fairness (the principle of acting reasonably, or the prohibition of arbitrariness);

9. The principle of responding to a reasonable expectation;

10. The principle of eliminating the consequences of a decision that is cancelled;

11. The principle of protecting personal ways of life;

12. The principle of wisdom;

13. The principle of the public interest (principle of public service) [12, p. 28].

In a democratic state, citizens’ rights, including their rights to express opinions and their privacy rights, should be protected and guaranteed by the state. The administration of the state, conducted by the government, does not make it impossible that a government might follow government policy in a certain matter and act against the interests or the rights of the citizens, even though the policy is based on the law [3, p. 57].

If this happens then the citizen has the right, through judicial review, to fight against the law that forms the basis for the government policy, and this is where the Constitutional Court has a role in examining the material of the law that is the basis of the government policy. Therefore, the Constitutional Court has an important position in maintaining good governance so that it is able to test the content of the law.

Methodology

The research method for this scientific paper is normative research that is based on juridical analysis of Law No 12 of 2003 on General Elections. In this Law there is a provision stating that candidates for the People’s Legislative Assembly, the Provincial House of Representatives, the Regional/Municipal People’s Representatives Councils, and the Regional Representatives Council must not belong to the former prohibited Indonesian Communist Party (PKI) or have been part of its organization and must not be directly or indirectly involved in “30 September Movement” – G30S/PKI or other prohibited organizations. This provision is intended to restrict the rights of citizens who have been involved, either directly or indirectly, in the prohibited PKI or other forbidden organizations.

This study also contains a sociological analysis of the response of the public, especially the former political prisoners of the PKI, to these provisions, and analyses the view of the majority of the Indonesian people, who agreed to the provisions of the ban set forth in Law No 12 of 2003 on General Elections.

Results and discussion

Background: the emergence of the Constitutional Court of Indonesia as a state institution

During the New Order era, the 1945 Constitution tended to be regarded as sacred, which meant that political and security matters could be guaranteed and the course of development programmed by the New Order could run smoothly without obstacles. It was evident that, during the New Order period, the pace of economic growth and development was in accordance with the program. Indonesia’s economic growth was quite high for Asia, and Indonesia was self-sufficient in food, especially as it produced enough rice without needing to import it from abroad.

At the beginning of 1998 the world experienced a monetary crisis that also affected Indonesia. The real impact of the crisis was that Indonesia experienced a very deep downturn, people’s purchasing power went down sharply, and prices soared because of the depreciation in the value of the rupiah against the US Dollar. This had a political impact, in which continuing massive student demonstrations resulted in the fall of President Suharto and his New Order, which had been in power for 32 years. In the Reformation era that followed, the changes in the lines of state administration that were made in the 1945 Constitution amendment of the New Order era were difficult to implement.

The existence of the Constitutional Court is a result of a political process that occurred in Indonesia to correct the articles of the 1945 Constitution to accommodate the wishes of the community; as an example, the first President directly elected by the MPR, President Abdurachman Wachid (Gus Dur), was dismissed by the MPR. But it could not be proven by the MPR that Gus Dur had made a mistake, and so forth. As a result of the example mentioned above, there were thoughts that there should be a state institution, the Constitutional Court, whose duties and authority are as described above.

A legal state has the following characteristics by Kusnardi and Ibrahim:

1. The recognition and protection of human rights, ensuring equality in the political, legal, socioeconomic, and cultural fields;

2. A free and impartial judiciary that is not influenced by any force whatsoever;

3. Legality in all its forms;

4. A democratic government [9, p. 75].

The concept of a legal state is always associated with the principles of government and must be based on the law and the constitution, the division or separation of state power into different functions, and the recognition of the protection of human rights and guarantees for their implementation.

In every legal state, the punishment is relied upon by the holder of the highest power, therefore the preferred is the norm or the rule/value so that it is known as a “normocracy” while in the ideology of the people they are sovereign over all things so that the state is called a democracy. The first term emphasizes the values that are reflected in the rules system, while the second gives priority to the people, on the assumption that the more people who are involved or the wider the participation of people in taking a decision about power, the better the constitutional system [q.v.: 5].

With the development of the Indonesian state administration system, following the amendment of the 1945 Constitution, many citizens were involved in the administration of the state, as evidenced by elections for regional heads, regional elections, gubernatorial elections, and presidential elections, indicating that in the organization of the state, citizens are entitled to choose leaders directly who are considered to hold the mandate of government. If there are unfavourable things in the administration of the state, citizens and communities cannot blame their leaders alone, because it was the people who chose the leader. In addition, if the people feel that their privacy rights are violated through legislation implemented by state officials, citizens may apply for a judicial review of laws that affect the rights of citizens.

Control of the implementation of Good Governance through the judicial review of laws

In the Preamble of the 1945 Constitution it was proposed that it should protect the entire Indonesian nation and the whole of Indonesia’s peoples, promote the general welfare of the nation’s intellectual life, and allow the country to participate in the implementation of a world order based on eternal peace and social justice for all.

Starting from the mandate of this Preamble of the 1945 Constitution the actions of the state implemented by the government should seek to create a prosperous and just society. In order for this to happen, officials who carry out the mandate of the people must be able to examine things that interfere with the implementation of good government, especially concerning actions that are counter to this, such as corruption, collusion, nepotism, and the abuse of authority.

Besides, it is equally important for the good administration of the state that the state administration policy is based on the law. It is important that government officials do not stumble over legal problems, which can lead to delays in state administration, which in turn will hamper the welfare of society or citizens [6, p. 104].

What we need to examine is the law itself, and whether it reflects the general principles of a good state administration so that it can be used as the basis for good state administration. This needs a deep understanding for lawyers and politicians.

If we examine an actual Act in-depth, it shows the wishes or desires of the ruler or the regime, as outlined in the form of the legislation, and this can be seen in how the legislation is made. We know that a law is laden with norms and rules set forth in each of its articles. Although the rules should reflect principles of truth and justice that are universally acceptable, this does not rule out the legal possibility that a state official can be formally justified in implementing an Act when it does not reflect the principles of truth and justice, or the rules in the Act are not in accordance with truth and justice.

Under these conditions the Constitutional Court has the role of testing the material content of the Law, even though the Law is the product of cooperation between the legislature and the executive body. Once the Constitutional Court has examined a Law, then if it has passed the test of its contents the Law can be used as the legal basis for state administration by state officials, so the Law contains material and formal truths and state officials are able to follow the wisdom of the state administration [13, p. 16].

According to Manan and Magnar the representation system restricted people’s chance to participate in the administration of the state and the government [q.v.: 10].

 The administration of the state and the government consisted of limited elite. The nature of the elite has certain aspects of an oligarchic nature so the system could be called an oligarchic democracy. The only difference is that democracy has an open recruitment system whereas recruitment in an oligarchy is closed.

In Manan and Magnar’s opinion the system of representation will limit the chance for people to participate in the administration of the state, and this means that people’s access to the making of the law is limited: people do not make the law directly but are represented by their representatives in the House of Representatives, in accordance with the democratic system. Today it is impossible to apply direct democracy, in view of the vastness of the Indonesian population and territory. According to the authors, important laws produced by the legislature and the executive reflect universal aspects of truth and justice.

Besides this, citizens have the right to reject the provisions of Law: if they feel that their privacy rights are violated by an Act then they have the right to file for a judicial review of the Act, and the Constitutional Court judge has authority to reject or accept the submission of the citizens by testing the material of the Law. Of course, the Constitutional Court makes its own considerations on both the material and the formal aspects, applying the general principles of universal truth and justice contained in the law.

Analysis of several decisions of the Constitutional Court in decisions following the judicial review of laws

After the 1945 Constitution was amended and the Indonesian state administration system changed as a result of the 1998 reform, many laws have been scrutinized by the Constitutional Court, especially laws for which members of the public have requested a judicial review of their contents.

Prior to the existence of the Constitutional Court, the test of the content of legislation was limited to certain Acts, such as Regional Regulations, Ministerial Regulations, and Ministerial Instructions. A request for a test could be submitted by parties who felt their rights were violated or restricted, and they submitted their request for a test of the content to the Supreme Court [2, p. 367].

Now the test of the content of a Law is not limited to laws and regulations made under an Act, but the content of an Act itself can be submitted to the Constitutional Court. This institution will examine the Act to decide whether the norm and the rules contained in the Act violate the 1945 Constitution or are contrary to the general principles of truth and justice.

According to Oemar Senoadji the rule of law should be adequately safeguarded against the use of power by the executive and the legislature [q.v.: 14]. If the rule of law is exercised, it can be understood to mean that the people have the right to the protection of the state, and the ruler is not omnipotent.

It is known that man needs the implementation of the order, to give everybody a chance to achieve prosperity and to fulfil the community’s sense of justice. It is impossible to achieve righteous order if the rules of positive law that control the intentions of the people contradict each other and mutually exclude each other’s influence in society. Therefore, the overall positive rules of law covering all written law must be arranged in a legal system. The consequence of questioning the rules of law through the system will be seen if the entire legal norm is sourced or radiates from, and therefore can be restored by, certain higher and more general principles [q.v.: 7].

Below, the author describes several cases in which norms and rules of Acts were abrogated by the Constitutional Court, acting with the authority to examine the contents and norms of Acts.

Judicial review of article 6(d) of Law No 23 of 2003 on the election of the President and Vice President by Abdurachman Wachid and Alwi Shihab

Article 5(d) contains the following provisions: Candidates for President and Vice President must be able spiritually and physically to perform their duties and obligations as President and Vice President.

In bringing the judicial review, the Petitioner stated his opinion that article 6(d) is contradictory to the 1945 Constitution, namely Article 27 of the 1945 Constitution, which provides as follows: all citizens shall be at the same time in law and government and shall enter into law and government without exceptions.

According to the petitioner if a physically unhealthy person cannot run for President, this is contrary to the person’s personal basic rights and is, therefore, a violation of his or her human rights. The petitioner, therefore, requested that article 6(d) be stated to be invalid and of no legal force.

In the Constitutional Court’s decision, the Constitutional Court rejected the Petitioner’s request for the following reasons:

1. Article 6(d) of the Presidential and Vice-Presidential Election Law is a constitutional order that is set forth in the 1945 Constitution, at article 6(2).

2. The Petitioner could not be referred to as an applicant whose constitutional rights were factually impaired by the provisions of that Article.

3. The Petitioner could not claim that his rights were impaired by this provision because the Petitioner had not registered as a Presidential Candidate [11].

Review of article 60(g) of Law No 12 of 2003 on General Elections

This article contains provisions prohibiting former members of the prohibited Indonesian Communist Party, including those who were part of its organization or who were directly or indirectly involved in G30S/PKI or other prohibited organizations from standing as candidates for the People’s Legislative Assembly, the Regional Representative Council, the Provincial House of Representatives or the District/City People’s Representative Council.

The petition for judicial review was filed by petitioners named Samaun Utomo, Achmad Soebarto and Mulyono. They argued that their legal status was violated and/or the Act was outside the constitutional authority. As regards the enactment of the Act, the Petitioners argued as follows in their submission for a judicial review: Membership of a prohibited organization before it is prohibited is not a defect in law or constitution so that a ban based purely on it and not supported by a valid legal reason (legality) through the courts is discrimination based on political views and a violation of human rights.

If the provisions of article 60(g) are applied and implemented effectively, this will directly or indirectly cause the stigmatization of an individual, so their reintegration within the body of the nation, which is a moral requirement, is officially curtailed. The supreme political body of the country should support reconciliation and not complicate it.

The petitioners argued that excluding certain persons on the basis of the untested grounds of enjoying their political rights was discrimination and a violation of their human rights. The Constitutional Court accepted the petitioner’s petition and annulled article 60(g) of Law No 12 of 2003 of General Elections, with the following considerations:

1. Constitutionally, article 27(1) of the 1945 Constitution stipulates that everyone is entitled to the recognition, guarantee, protection, and legal certainty of justice and equal treatment before the law. Also, article 28(2) of the 1945 Constitution stipulates that every person is entitled to protection against discriminatory treatment.

2. Criminal liability can only be accorded to a perpetrator (dader) of a crime or someone who participates (mededer) or helps (medeplechtege) in a crime. Thus, it is an act contrary to law, the sense of justice, the principle of the certainty of the law and the rule of law if responsibility is imposed on a person who is not directly involved.

3. Since citizens’ constitutional rights to vote and to be elected are guaranteed by the Constitution, international law, and convention, the limitation of irregularities and omissions and the abolition of those rights constitute a violation of the human rights of citizens.

On the basis of the considerations mentioned above, the Constitutional Court cancelled article 60(g) of Law No 12 of 2003 on General Elections.

According to Henry Steiner, a human rights expert from Harvard University, article 25 of the Universal Declaration of Human Rights implies that every person in society has the right to take part in community affairs that are directly conducted by representatives freely chosen by the people [q.v.: 14].

One of the two examples of the decisions of the Constitutional Court that the authors mention above is a correction of the norms and rules contained in legislation made by the state executive and legislative institutions. There are many other decisions of the Constitutional Court that the authors have not mentioned here, such as the decisions following a judicial review of the Draft Regional Revenue and Expenditure Budget (RAPBN) Law, the Oil and Gas Law, the Labour Law, the Corruption Eradication Commission Law, the Law on Higher Education Institutions and so on.

Conclusion

With the institution of the Constitutional Court being listed in the 1945 Constitution of the Republic of Indonesia, it has significance in the political system and the state administration in Indonesia. In the administration of a country in which the government and the executive are based on law, government policy must be based on legislation. In a case when the law concerns the public interest, if there is no institution that can test the Act, it is likely that legislation will be used as a tool by the authorities to act authoritatively or arbitrarily. Herein lies the position of the Constitutional Court in maintaining good governance through the judicial review of the law, so that the executive can run the government in accordance with the general principle of good governance, which is expected to bring prosperity to the people of Indonesia.

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Data about the authors:

Azis Setyagama – Doctor of Law, Associate Professor of Law Faculty, Panca Marga University (Probolinggo, Indonesia).

Eko Wahyono – Lecture of Law Faculty, Panca Marga University (Probolinggo, Indonesia).

Сведения об авторах:

Азис Сетьягама – доктор права, доцент юридического факультета Университета Панча Марга (Проболинго, Индонезия).

Эко Вахьоно – преподаватель юридического факультета Университета Панча Марга (Проболинго, Индонезия).

E-mail: setyagama.azis@gmail.com.

E-mail: eko.wahyono@upm.ac.id.