By: Dr. Hamdan Zoelva, SH., MH.
The presence of a Constitutional Court in various countries as a judiciary body which settles various constitutional problems renders important influence in the effort to actualize the rule of law and a constitutional democratic state. In this regard, the constitution occupies a central position in the life of a state. The main issue regarding the rule of law is human rights, equality before the law, limitation of power by law (due process of law) as well as an independent judiciary. Constitutions in general grant guaranty for the actualization of the rule of law and the Constitutional Court is the guard of the uprightness of the rule of law by guarding the uprightness of the constitution. Therefore, there are three important issues which are related to the constitution (constitutional issues) namely, the protection of human rights and the constitutional rights of the citizens, due process of law, the democratic process, the authority of the state institutions and organs based on the constitution.
At this occasion, I wish to convey one of the important issues which is related to the Constitutional Court, namely regarding the Constitutional Court with the authority granted to it to settle various constitutional problems in the life of a state, particularly the practice and the experience of Indonesia.
The Indonesian Constitutional Court was established in the year 2003 based on the amendment to the Constitution (Undang-Undang Dasar, UUD) of 1945 in the year 2001. Pursuant to the Constitution of Indonesia, the Constitutional Court is a judiciary institution which works based on the principles of an independent judiciary. There are five authorities of the Constitutional Court, namely:
To review laws against the constitution;
To decide on disputes regarding the authority among state institutions whose authority is granted by the constitution;
To decide on disputes regarding the result of general elections;
To decide on the dissolution of a political party, as well as
Bearing the obligation to render opinion regarding dismissal of the President.
The Indonesian Constitution divides the authority to review a norm into two judiciary institutions namely the Constitutional Court and the Supreme Court. The Constitutional Court is limited to being authorized only to review the constitutionality of act, whereas the Supreme Court reviews various regulations other than laws (act) against the laws (acts) or a regulation in the higher sequence of order of the hierarchy, for instance a government regulation (peraturan pemerintah), a regulation of the President as well as a regional regulation (peraturan daerah). Other than like the many Constitutional Courts in other countries, the Indonesian Constitutional Court is not authorized to adjudicate a constitutional complaint, neither is it authorized to render a legal opinion according to the constitution regarding a constitutional question presented by other state institutions. Only problems regarding the constitutionality of legal norms are subject to the authority of the Constitutional Court.
The review of laws is a judiciary process to review the constitutionality of a law. Perceived from the substantial aspect, there are two kinds of review of laws, namely the formal review and material review. The formal review, namely to review the constitutionality of the law making with the main question to be decided by the court is namely as to whether the process of the law making has been conducted in accordance with the provisions of the constitution. If the process of the law making is proven to be contrary to or in breach of the constitution, the Constitutional Court would decide the aforesaid law unconstitutional and having no legal binding force. To date, there are only several case review of laws petitioned to and decided by the Indonesian Constitutional Court questioning the process constitutionality of the law making (formal review) namely regarding the decision making in the approval to the endorsement of bills by the People’s Representatives Council (Dewan Perwakilan Rakyat, DPR), among others the problem of the endorsement of laws regarding the Supreme Court and laws regarding the MPR, the DPR, the Regional Representatives Council (Dewan Perwakilan Daerah, DPD) and the Regional People’s Representatives Council (Dewan Perwakilan Rakyat Daerah, DPRD). There is no single case petitioned regarding the aforesaid formal review has been granted by the Constitutional Court.
Secondly, the material review, namely to review the constitutionality norms of a law, either against a whole article, part of an article or the meaning of a certain article in a law. The principal question reviewed at the Constitutional Court is whether a norm or articles, a part of an article or the meaning of the aforesaid article is constitutional or not. If it is proven that the norm reviewed in the judiciary process at the Constitutional Court is contrary to the constitution, then the aforesaid norm will be declared unconstitutional and having no legal binding force by the Constitutional Court.
Review Procedure of Laws
Pursuant to the law of the Indonesian Constitutional Court, a petition to review a law can be petitioned by:
an individual Indonesian citizen,
public legal entities including state institutions as well as private legal entities, dan
a unity of an adat law community.
Based on the aforesaid provision each individual Indonesian citizen, legal entity and unity of an adat law community may file a petition to review a law at the Constitutional Court if any of them deem to have been harmed of their rights guaranteed by the constitution due to the existence of the aforesaid legal norms. The loss of the aforesaid constitutional right either in the form of a real loss having occurred or a potential loss which would certainly occur. A petitioner may appear directly on his/her own at the Constitutional Court or through his/her proxy. Prior to deciding on a case, the Constitutional Court shall open the trial to hear a testimony directly from the petitioner or his/her proxy, and may request explanation from the President, the DPR, the MPR, the DPD or other parties deemed to know the substance of the aforesaid case. In order to substantiate his/her petition, the Petitioner may file evidences in writing, propose witnesses or experts to be heard of their testimonies in the trial. The President or the DPR may also propose witnesses or experts to prove a testimony he/she submitted to the Constitutional Court. While the trial is in progress, to the extent that it has not been decided yet by the Constitutional Court, other parties who also perceives their constitutional right have been harmed by laws being under review may propose him/herself to the Constitutional Court as a related party.
In the process of reviewing a law, the Constitutional Court is not obliged to hear a testimony from the President or the DPR. If the Constitutional Court deems that review material submitted, very clear and simple, the Constitutional Court may decide on a review case without hearing a testimony of the President, the DPR, witnesses or experts proposed by the parties.
After the whole process of the examination trial of the case is conducted, the Constitutional Justices will hold a consultation to make a decision, whether the aforesaid review case be granted, be dismissed or not accepted. In this regard, each Justice conveys independently his/her opinion (legal opinion) vis-à-vis a constitutional issue in question. Each case would be sought to be decided consultative wise to achieve one single opinion, but if not, the decision is made by simple majority and the Justices in the minority may convey their dissenting opinion loaded in full in the aforesaid decision and be read out by the respective Justice in a trial open to the public. The trials of the Constitutional Court are open to the public save to consultation sessions of the Justices are held behind closed doors.
A decision of the Constitutional Court in a review of laws applies immediately following the completion of the trial pronouncing the decision in a trial open to the public, and applies as a norm of a law. For the need of publication, the aforesaid decision will be loaded in the Official Gazette of the Republic of Indonesia. In practice of the Indonesian Constitutional Court there are at least three kinds of decisions of the Constitutional Court, namely:
Firstly, a decision declaring a petition to review not acceptable, namely if a petition does not comply with the formal requirements of a petition like for instance a petition lacking a legal standing for filing a petition or an unclear petition.
Secondly, decision dismissing a petition namely in case of reasons of the petitioner stating that an article or norm being reviewed is contrary to the constitution is not reasoned, and
Thirdly; a decision granting a petition, namely in case of the reason of a petition of the petitioner is legally reasoned so that a law, an article or a norm of a law being reviewed is contrary to the Constitution and declared as having no legal binding force.
There are two kinds of decisions declaring a norm to be unconstitutional, namely:
Fully unconstitutional, namely when the aforesaid norm is contrary to the constitution unconditionally. In this regard, the Constitutional Court would purely act as a negative legislator.
Conditionally unconstitutional, namely when a norm being reviewed is declared unconstitutional subject to certain conditions in accordance with the determination of the Constitutional Court. In such a decision, the Constitutional Court acts as a negative legislator and simultaneously as a positive legislator, as beside declaring a norm to be unconstitutional and having no legal binding force, the Constitutional Court also forms a new norm in lieu of the norm declared as unconstitutional.
If a legal norm which has been decided by the Constitutional Court as a constitutional norm, in principle a petition for the same cannot be filed again for review save if there are reasons and a new reason for review which has not been brought up with the previous petition to review. There are a lot of decisions of the Constitutional Court against a norm of a law which has been subject to review and be decided by the Constitutional Court to be declared constitutional, but with the next petition to review became declared unconstitutional due to reasons and constitutional base which are different from the previous petition. If there is a new petition against a nor of a law which has been subjected to review and it turns out that it has the same constitutional reasons and base, then such a petition that follows later would be declared as ne bias in idem.
In general the decisions of the Constitutional Court are complied with and are well executed by all state institutions. There has been only one or two decisions which have not been well executed, particularly if related to the authority of the Supreme Court. There is one example of an interesting case in this matter, namely the decision of the Constitutional Court declaring the unconstitutionality of the reason of a material unlawful act in the case of a criminal corruption. However, in its various decisions the Supreme Court keeps using the reason of material unlawful act in its criminal sentences related to cases of criminal corruption.
As the Indonesian Constitutional Court is not authorized to decide on cases of constitutional complaints and constitutional questions, the number of constitutional cases petitioned at the Constitutional Court are not too many. As of its establishment in September 2013 through December 2015 there are 701 cases to review laws which have been decided by the Constitutional Court. Nevertheless, there are a lot of petitions to review a law petitioned to the Constitutional Court have been constitutional complaints or constitutional questions in their substance. In the settlement of such cases, the Constitutional Court keeps adjudicating them, which in general if a petition is granted by the Constitutional Court, the norm reviewed would be declared conditionally unconstitutional.
There are a lot of decisions of the Indonesian Constitutional Court which bring about tremendous influence for the protection of human rights and the constitutional right of the citizens, for instance, in the frame of constitutional guaranty to equal treatment in politics as well as in government (the principle non-discrimination). For example is the decision which abolished the discrimination of political rights of former members of Indonesian Communist Party (Partai Komunis Indonesia, PKI) who as of the term of government of President Soeharto have had no political right to become a member of the parliament or state officer. Such is also in in the field of economy. The Indonesian Constitution underlined an economic system which does not embrace the principle of free market in order for the state to fulfill the principle of social justice (non-liberal economic system) and important production of the state and the management of natural resources shall be controlled by the state. There are a lot of norms of the laws which contain liberal economic system including in the management of natural resources so that there are also a lot of laws related to the field of economy and the management of natural resources that have been declared unconstitutional and having no legal binding force by the Constitutional Court. That has been conducted in the frame of the function and the responsibility of the Constitutional Court as the guard of constitutional values.
Disputes Regarding Authorities among State Institutions
The authority of the Constitutional Court to adjudicate and to decide on disputes regarding the authority among state institutions has its backdrop in the principle of checks and balances embraced by the Constitution of 1945 following its amendments. In the Constitution of 1945 following its amendments, each state institution has been granted the attribution of authority in order to achieve the objective of the state. In the execution of the aforesaid authorities, there is the high potential of mutual claim of authority among the state institutions based on the attribution of authority granted by the Constitution. Here lies the role of the Constitutional Court to decide as to which state institution has the authority over a certain matter.
A state institution having a legal standing to litigate and question a dispute regarding the authority at the Constitutional Court are only state institutions granted the attribution of authority by the constitution. Different from a review case of laws – there are no parties facing each other in a case – then in a case of dispute regarding authority there are at least two litigating parties, namely two state institutions claiming each other for the authority over a certain matter in the practice at the Indonesian Constitutional Court named the Petitioner (Claimant) and the Petitioned (Defendant). Therefore there are two requirements which shall be complied with for the filing of dispute cases among state institutions, namely:
From the aspect of the subject, the Petitioner (claimant) as well as the Petitioned (defendant) shall be state institutions as aforementioned and be granted the authority by the constitution and from the aspect of the object, and
The disputed authority is the authority granted by the constitution.
In the constitutional practice in Indonesia there are indeed two kinds of disputes regarding the authority among state institutions, namely disputes regarding the authority related to acts of state institutions based on the authority stemming directly from the Constitution and disputes regarding the authority stemming from the authority granted by the laws. The disputes on authority due to an act (matter) the authority of which stems directly from this Constitution are indeed is dispute cases regarding the authority among state institutions. Whereas disputes regarding the authority stemming from norms of laws can be petitioned through review of laws. Disputes on authority which are based on norms of laws in the form of review of laws can be petitioned by all state institutions whether state institutions whose authority is directly granted by the Constitution as well as state institutions whose authority is granted by laws.
In the practice of the Indonesian Constitutional Court, although a lot of petitions have been filed as dispute cases regarding the authority among state institutions, in reality there have been only several cases which are indeed disputes regarding the authority among state institutions. In the record of the Indonesian Constitutional Court up to the year 2014, there have been only two dispute cases among state institutions decided by the Constitutional Court as disputes regarding the authority among state institutions, namely the dispute between the DPD (the Petitioner) and the President and the DPR (the Petitioned) related to the process of stipulating the members of the Audit Board (Badan Pemeriksa Keuangan, BPK) which was decided in the year 2005. Pursuant to the Constitution of Indonesia, the candidate member of the BPK prior to his/her designation by the President shall be subject to consideration of the DPD. In the designation of several members of the BPK in the year 2004 (following the formation of the DPD in the year 2004), the designation of the members of the BPK was done without the consideration of the DPD so that the DPD sued the President and the DPR to the Constitutional Court. Following the trial process, the Constitutional Court decided to dismiss the petition of the DPD, because the process the designation of the aforesaid members of the BPK was commenced prior to the formation of the DPD and was conducted based on laws prior to the amendment to the Constitution of 1945. The second case in the year 2012 was a dispute regarding the authority between the President (the Petitioner) and the DPR and BPK (the Petitioned). In the aforesaid case the President had problems to conduct the purchase by the government of shares divested by PT Newmont by using the investment project of the government as it was hampered by the DPR. However, according to the DPR the purchase of the aforesaid divested shares shall be subject to the approval of the DPR. After a rather long process of trials examining evidences and hearing the testimony of experts, the Constitutional Court decided to dismiss the suit of the President because according to the Constitutional Court the withdrawing of money from the funds of the investment project of the government shall be subject to the approval of the DPR.
The dispute cases between an institution petitioned by a state institution whose authority is not granted by the Constitution but is only based on the authority granted by laws have all been declared unacceptable by the Constitutional Court as they have not complied with the formal requirements of the subject and object of the petition to disputes among state institutions.
Disputes Regarding the Result of General Elections
The Indonesian Constitution rendered the authority to decide on disputes regarding the result of general elections to the Constitutional Court and not to the Supreme Court. At least, there are two reasons for placing the aforesaid authority under the Constitutional Court, namely a substantial reason and a technical reason. Substantially disputes on the result of general elections are constitutional disputes as they are linked to the guaranty and the protection of rights and political process having their source in the Constitution. The Indonesian Constitution (the Constitution of 1945 after its amendments) regulated general elections in one separate chapter, which at least contains five important principles, namely:
General elections are executed periodically once in every five years;
General elections shall be executed by respecting principles of being direct, public, confidential, free, honest and equitable;
The organizers of general elections shall be independent, and
General elections are conducted to elect members of the DPR, the DPD, the DPRD, the President and the Vice President.
Violations against the aforesaid principles are violations against the Constitution. As a state embracing the constitutional system and having the Constitutional Court to settle constitutional matters, then disputes on the result of general elections become the authority of the Constitutional Court to decide thereon.
Secondly, a technical problem. Decisions regarding disputes on the result of general elections requires quick and final decisions as well as achieving full legitimacy as well, because it is related to the constitutional agenda which shall not pass the term of offices of the state institutions. That is fulfilled if that authority is given to the Constitutional Court. A decision of the Constitutional Court is conducted based on the principle of full bar, namely all the Constitutional Justices participate in the decision making of a case, so that it closes the possibility of efforts to appeal against a decision as it will be decided by the same tribunal of Justices. With such a decision mechanism two objectives are achieved, namely the speed and finality in the settlement of disputes and strong legitimacy.
There have been three general elections following the amendments to the Constitution of 1945 and following the formation of the Constitutional Court. There have been three times as well that the Constitutional Court decided on various disputes on the result of general elections, regarding disputes on the result of the election of members of the DPR, members of the DPD, members of the DPRD, and the election of the President and the Vice President. The decision of the Constitutional Court regarding disputes on the result of the election of members of the DPR, the DPD and the DPRD has tremendously changed the composition of members of the DPR, the DPD and the DPRD which has been stipulated by the Commission of General Elections, as there have been a lot of stipulations on the result of general elections by the Commission of General Elections which contained mistakes or errors that became corrected at the Constitutional Court. All the result of the election of the President and the Vice President who are directly elected by the people in Indonesia (as of the year 2004) have always been petitioned to the Constitutional Court as dispute cases on the result of general elections. From all the aforesaid cases there has been no single case granted by the Constitutional Court.
Besides, as of the year 2008, the Constitutional Court has been granted the authority to decide on disputes on the result of the election of regional heads in all over Indonesia (in the provinces as well as in the regencies (kabupaten) and cities (kota). In deciding on various disputes on the result of elections of the aforesaid regional heads, there have been a lot of types of decision of the Constitutional Court cancelling the result of the stipulation of the Commission of General Elections (Komisi Pemilihan Umum, KPU), among others the cancellation of the result of the election of stipulated by the KPU and deciding:
To correct the result of the stipulation of the ballot counting leading to the change of the candidate winner;
To order the KPU to repeat the ballot counting in parts as well in the whole constituency;
To order the KPU to repeat voting in parts as well in the whole constituency;
To order the KPU to disqualify (to strike) the participation of candidates who do not comply with the requirements and ordering the repeat of voting;
To order the KPU to include the names of the candidates qualified by the KPU and ordering the repeat of voting.
In deciding on disputes on the result of the election of regional heads, the Constitutional Court discovered various forms of norm violations against the Constitution including violations against the right to be elected and to elect, violations against the election process which shall be free and fair, violations against the rights of candidates as well as violations against the principle of independency of the organizers of general elections. From all the kinds of the aforesaid violations there are three groups of violations, namely violations in ballot counting, violations in the election process that are systematic, structured and massive in nature as well as violations in the process of determining candidates, so that the Constitutional Court had to cancel the election results. Violations that are systematic, structured and massive in nature namely violations in the election process involving the government structure namely the organizers of the elections, the candidates and their campaign teams either jointly as well as severally. They have been systematic as the aforesaid violations have been prepared and planned to win the election unfairly and they have been massive in terms that the aforesaid violations have not been sporadic or have been only several violations.
In the conduct of its authority to decide on various disputes on the result of general elections, the Indonesian Constitutional Court has been present as a judiciary that can be said to be rather respected, credible and all of its decisions regarding disputes on the election results have been respected. The Constitutional Court has guarded the democratic process di Indonesia peacefully up to the third direct elections in the era of the Reformasi in the year 2014. The Indonesian journey as a constitutional democratic state in the last 15 years has gone through a correct path. The Constitutional Court is one of the state institutions which guards and ensures that that process proceeds correctly.
Dissolution of a Political Party
One of the authorities of the Constitutional Court according to the Indonesian Constitution is to decide on the dissolution of political parties. The granting of the aforesaid authority was based on the consideration that political parties are one of the very important pillars for democracy, so that the dissolution of political parties cannot be conducted easily but shall be through judiciary process particularly the judiciary of the Constitution. In Indonesia‘s political experience, there had been a time when the dissolution of political parties was conducted only by virtue of a decision of the President, when the first President of Indonesia (Mr. Soekarno) dissolved ones of the strongest parties in Indonesia at the time namely the Masyumi Party and the Indonesian Socialist Party (Partai Sosialis Indonesia) in the year 1960. That experience has inspired the formulation of the amendment to the Constitution of 1945 to regulate the dissolution of a political party shall be by virtue of a decision of the Constitutional Court.
In the process of the dissolution of a political party as regulated in the Law on the Constitutional Court, the filing of a petition to the dissolution of a political party to the Constitutional Court can only be made by the government. The only reason for a dissolution shall be only that a political party has conducted activities or proclaims its activity program which violates and undermines the state ideology of Pancasila. Up to the end of the year 2015, there have not been a case of the dissolution of a political party petitioned by the government and adjudicated by the Constitutional Court. There have been several cases petitioned by a group of individuals, but declared not acceptable by the Constitutional Court, as they did not comply with requirements namely not fulfilling legal standing.
Dismissal of the President
The dismissal of the President in Indonesia is conducted by the MPR (having members consisting of all the members of the DPR and members of the DPD) after receiving a proposal from the DPR. Prior to submitting a proposal to the MPR the DPR shall first conduct an investigation and search to substantiate that the President has committed a violation against the law in the form of treason against the state, corruption, bribery and other felonies or irreproachable act as well as if he/she is proven to be no longer qualify as President and/or Vice President.
If the result of the aforesaid investigation substantiated that the President has committed a violation against the Constitution and became a decision of the DPR, the DPR would file a petition to the Constitutional Court to decide on the truth of the aforesaid opinion of the DPR according to the law and the Constitution. In this regard the Constitutional Court would only render a kind of legal opinion to be conducted through a trial process by hearing a testimony of the DPR, a testimony of the President, examining evidences, witnesses and the testimony of experts up to the decision confirming the opinion of the DPR or not confirming the opinion of the DPR. In deciding on the aforesaid petition of the DPR, the Constitutional Court would examine various testimonies and evidences to respond to the subject matter in a petition of the DPR namely whether the opinion of the DPR has been conducted in accordance with the correct decision making process according to the law and whether the reasons for dismissal according to the law and the Constitution.
If the decision of the Constitutional Court confirmed the opinion of the DPR, then the DPR would propose the dismissal of the President to the MPR. It is fully the authority of the MPR whether the President be dismissed or not be dismissed. Otherwise, if the decision of the Constitutional Court dismissed the opinion of the DPR, then the dismissal process would stop at the decision of the Constitutional Court and the President would be safe and would remain in his/her office. There have not been a case of dismissal of the President in Indonesia following the establishment of the Constitutional Court.
At the end of this presentation, I could conclude that the Indonesian Constitutional Court has the authority limited to handle and adjudicate all constitutional problems. That said, not all constitutional problems can be brought to be decided by the Constitutional Court. A review of a norm which is not a norm of laws although related to a constitutional issue is not the authority of the Constitutional Court. Such is also with real violations of constitutional rights caused by a state organ harming the constitutional rights of the citizens, which also cannot be petitioned to be decided by the Constitutional Court.
Nevertheless with the authority possessed now, the Indonesian Constitutional Court has made an important contribution and motivation for the upholding of the principles of a state of law, the rule of law and a constitutional democratic state. The Indonesian Constitutional Court has become a place for the people to obtain guaranty of their rights as citizens against various violations against constitutional rights thanks to the existence of laws applied by the state. State institutions have therefore also obtained means towards equitable settlement according to the Constitution if there occur disputes regarding the authority among state institutions. The role of the Indonesian Constitutional Court has obtained a good appreciation from the people.