The rise and dynamics of ‘conditional decision’ in Indonesian constitutional review

This research will elabourate the Constitutional Court’s ‘conditional decision’ utilization pattern, to give a better understanding of what ‘conditional decision’ is and how the dynami[r]

THE RISE AND DYNAMICS OF ‘CONDITIONAL DECISION’ IN INDONESIAN CONSTITUTIONAL REVIEW

Dian Agung Wicaksono and Faiz Rahman

Faculty of Law, Universitas Gadjah Mada, Yogyakarta

Abstract

As a newly established judicial institution, the Indonesian Constitutional Court already plays

a significant role in upholding the 1945 Constitution of the Republic of Indonesia through its authorities specifies in Article 24C of the Constitution One of the authorities which has the most case compared to others is the authority to review a Law against the Constitution, or often called a constitutional review Since the establishment of the Indonesian Constitutional Court, constitutional review cases increased considerably To date, the Constitutional Court has been deciding more than 1200 constitutional review cases Among those decisions, there are some that include new formulated norms and constitutionality requirement to the reviewed norms, which make it becomes ‘conditionally constitutional’ or ‘conditionally unconstitutional’ The Court has been using this type of decision in approximately one-tenth of all constitutional review cases Furthermore, the emergence of so-called ‘conditional decision’ gives a distinctive dynamic in the implementation of constitutional review authority It gradually shifts the paradigm of the Constitutional Court’s position as a negative legislator towards a positive legislator Moreover, the utilization of ‘conditionally constitutional’ and ‘conditionally unconstitutional’ decision also shows a unique pattern In the early years of the Constitutional Court, ‘conditionally constitutional’ decision

is more widely used than ‘conditionally unconstitutional’ decision However, since 2009, the Court seemed to prefer using ‘conditionally unconstitutional’ decision This research will elabourate the Constitutional Court’s ‘conditional decision’ utilization pattern, to give a better understanding of what ‘conditional decision’ is and how the dynamics in the constitutional review can significantly change the preference of ‘conditional decision’ type used by the Constitutional Court in deciding constitutional review cases using this approach.

Keywords: constitutional court, constitutional review, conditional decision pattern, Indonesian

judiciary.

1 Introduction

The existence of a free and impartial judiciary is related to the concept of the rule of law As stated

by Hans Kelsen, A.V Dicey, and International Commission of Jurist, the presence of an independent judiciary is one of the absolute requirements of the rule of law.1 In the Indonesian context as a state

1 Hans Kelsen states that one of the important characteristics of rechtsstaat is the guarantee of the independence of judiciary (See Hans Kelsen, Pure Theory of Law (University California Press 1978) 313) Furthermore, A.V Dicey also states that the guarantee of human rights by laws and court decisions is an important feature of the rule of law (See A.V Dicey, Introduction to the Study of the Law of the Constitution (Macmillan Press 1971) 203) Moreover,

of Law, the existence of independent judicial power has been guaranteed by the 1945 Constitution of

the Republic of Indonesia (the Constitution)1 Furthermore, Article 24(2) of the Constitution stated

that judicial power in Indonesia is held by two equal institutions, namely the Supreme Court and the

judicial bodies underneath, as well as the Constitutional Court Such construction shows that judicial

power in Indonesia adheres to a bifurcation system2

Constitutional Court as one of the judiciary branches has an important role to uphold constitutional

justice in the midst of community life through its authorities that is limitedly given by the Constitution,

namely: constitutional review, decide upon disputes over authorities of state institutions, decide upon

the dissolution of political parties, decide upon disputes of the results of general elections, as well as

giving decision on the opinion of the House of Representatives (DPR) regarding alleged violations

by the President and/or Vice President according to the Constitution Based on these authorities, the

Constitutional Court has essential functions as the guardian of the democracy), the protector of the

citizen’s constitutional rights), and the protector of human rights3

Among these authorities, constitutional review is the authority that has the greatest number of

cases By October 2019, 1266 cases have been decided4 A large number of cases is reasonable, considering that constitutional review is the only authority that allows a wider community to become

a petitioner5 It is different from other Constitutional Court’s authorities that already limit the parties

that can be a petitioner6 Apart from the limitations on who can be the petitioner, another thing that makes constitutional review has the most cases is the object of the review, which is the Law

As it is known that the nature of Law is general Therefore, if a Law comes into force, the whole

citizens considered to understand and obliged to obey the Law In fact, not necessarily a Law in force

immediately protects the public, worse, it may even violate their constitutional rights

In the development, there are dynamics in the imposition of the constitutional review decision,

namely by the emergence of conditional decision that consists of conditionally constitutional and

conditionally unconstitutional Up to 2018, the Court has imposed approximately 140 conditional

decisions, or about one-tenth of the total constitutional review decisions by 2018, even though there

are no provisions concerning conditional decision in Law No 24 of 2003 jo Law No 8 of 2011

on the Constitutional Court (Constitutional Court Law) Moreover, the Constitutional Court Law

explicitly stated that there are only three types of decisions, namely decision that granted, rejected,

According to International Commission of Jurist, the existence of a free and impartial judiciary is one of the conditions

for democratic governance under the rule of law (See Majda El-Muhtaj, Human Rights in Indonesian Constitution:

From the Original 1945 Constitution to the 2002 Amended Constitution (Kencana 2005) 20).

1 See the 1945 Constitution of the Republic of Indonesia, Article 1(3) dan Article 24(1).

2 Abdul Hakim Garuda Nusantara, “Mahkamah Konstitusi: Perspektif Politik dan Hukum”, Kompas (24 September

2002) As citated in Ni’matul Huda, the 1945 Constitution of the Republic of Indonesia and the Idea of Re-Amendment

(Rajawali Pers 2008) 252.

3 Constitutional Court of the Republic of Indonesia, Annual Report of the Constitutional Court of the Republic of

Indonesia (Secretariat General of the Constitutional Court 2006) 29.

4 Constitutional Court of the Republic of Indonesia, “Rekapitulasi Perkara Pengujian Undang-Undang” <https://mkri.

id/index.php?page=web.RekapPUU> accessed 10 October 2019.

5 Law No 24 of 2003 on Constitutional Court, Article 51(1)

6 See Law No 24 of 2003 on Constitutional Court, e.g Article 61(1), Article 80(1), and Article 174(1).

and dismissed the petition

Through conditional decision, the Court provides constitutional interpretations and requirements for the reviewed norms Thus, the validity of the norms depends on whether the conditions specified

by the Court in the decisions are fulfilled It has led to a debate among academics concerning the shift

in the function of the Constitutional Court as a negative legislator to positive legislators It stems from the fact that the Court does not only revoke the reviewed norms but indirectly seemed to form new norms through constitutional requirements given its decision

Moreover, a conditional decision is strongly linked to the concept of judicial activism As Kmiec states in its article, one of the main meanings of judicial activism is judicial “legislation”2 Additionally,

if it is contextualized in the authority of constitutional review, then the process of “legislation” is closely related to the existence of “formulation of new norms” through constitutionality requirements

in a conditional decision Therefore, a conditional decision can also be used as an indicator to measure judicial activism that occurs in the Indonesian Constitutional Court The emerging discourse regarding judicial activism practice is strongly linked to the limitations of the role of the judiciary in

a rule of law3, especially in the context of separation of powers In the case of constitutional review, the existence of “norm formulation” in the conditional decision will certainly raise the question of whether the Constitutional Court has carried out “legislation” through the Court, which supposed to

be performed by the legislative

Based on the background above, this paper discusses and elabourates on the pattern of the Constitutional Court’s conditional decision in the constitutional review Hopefully, it can give a better understanding regarding what ‘conditional decision’ is and how the dynamics in the constitutional review can significantly shift the preference of the type of conditional decision used in deciding constitutional review The discussion is divided into two parts The first part discusses the origin and type of conditional decisions in the Indonesian constitutional review The later part analyses the dynamics of the utilization of a conditional decision

A Origin and Type of Conditional Decisions in Indonesian Constitutional Review

As stipulated in Constitutional Court Law, there are three types of constitutional review verdict, namely the verdict that declare the petition granted, rejected, and dismissed4 However, dynamics in Indonesian constitutional review gave birth to a new type of decision called the conditional decision, which consists of conditionally constitutional and conditionally unconstitutional decisions These two types of decisions are discussed below

1 Conditionally Constitutional Decision

Conditionally Constitutional Decision first used in the review of Law No 7 of 2004 on Water Resource (Water Resource Law) The idea of conditionally constitutional decision arises because some Laws often have a very general wording formulation that can be broadly interpreted Further,

1 See Law No 24 of 2003 on Constitutional Court, Article 56.

2 Keenan D Kmiec, “The Origin and Current Meanings of Judicial Activism”, [2004] 92(5) California Law Review

1444.

3 Robert Shenton French, “Judicial Activism – The Boundaries of the Judicial Role”, Paper, Lawasia Conference, Ho

Chi Minh City, 10 November 2009, p 1.

4 Law No 24 of 2003 on Constitutional Court, Arts 56 and 57.

that formulation is not yet known whether the implementation contradicts the Constitutional Law

Harjono, a Constitutional Judge, states his argument on the idea of conditionally constitutional decision as follow2:

[…] Therefore, we create by proposing a condition: if a provision whose formulation is too general and in the future is implemented in the form of A, then it is not contrary to the Constitution

However, if the implementation is B, hence it will conflict with the Constitution Thus, the provision

can be reviewed again

Accordingly, a reviewed provision will be declared constitutional, but regarding the constitutionality of the norm, there are conditions that should be fulfilled Then, the provision can

be re-reviewed if the implementation is not in accordance with the conditions specified by the

Constitutional Court in the decision

Furthermore, the Constitutional Court stated that conditionally constitutional decision is imposed

if the reviewed provision can be interpreted differently Moreover, the difference could lead to legal

uncertainty which violated the constitutional rights of the citizen3 The conditionally constitutional

decision imposed to give specific interpretations to prevent the uncertainty or the violation of citizen’s

rights4

There are five characteristics of conditionally constitutional decision as follow5:

First, there are certain interpretations or requirements, so a norm that is reviewed remains constitutional if it is carried out following the interpretation or conditions specified Second, based

on a verdict that rejected the petition Third, conditional clauses can be found in legal consideration

only, or both in consideration and verdict Fourth, it requires re-review if the implementation is not

according to the constitutionality requirements specified in the previous decision Fifth, both explicitly

and implicitly encourage legislative review by the legislative

In general, the most apparent characteristics is the first, second, and third ones, which is related

to the constitutional interpretation or requirements for the reviewed norms, decision that based on the

verdict that rejected the petition, and the location of the conditional clause These three characteristics

can be found in all conditionally constitutional decisions Further, for the second characteristic, there

is an exception if the petitioner requests the Court to interpret the reviewed article in a conditionally

constitutional manner6 As for the fourth and fifth characteristics, only several conditionally

constitutional explicitly stated that the reviewed provision can be re-review, or the Court order the

legislative to perform a legislative review to the norms reviewed7

1 Harjono, Constitution as a Nation’s House: Legal Thought of Dr Harjono, S.H., M.C.L., Deputy Chairman of the

Constitutional Court (Secretariat General and Registrar of the Constitutional Court 2008) 178.

2 Tim Penyusun Hukum Acara Mahkamah Konstitusi, Constitutional Court Procedural Law (Secretariat General and

Registrar of the Constitutional Court 2010) 142.

3 Constitutional Court Decision No 19/PUU-VII/2010 on the Review of Law No 36 of 2009 on Health against the

Constitution [1 November 2011] 137.

4 Ibid.

5 Faiz Rahman and Dian Agung Wicaksono, “Existence and Characteristics of Constitutional Court’s Conditional

Decision” [2016] 13(2) Jurnal Konstitusi 348, 361-363.

6 Ibid., 362.

7 Ibid., 362-363.

2 Conditionally Unconstitutional Decision

The emergence of conditionally constitutional decision is based on the argument that, if it only refers to the type of verdicts regulated in Article 56 of the Constitutional Court Law (granted, rejected, and dismissed the petition), it will be difficult to review a Law which has a very general formulation but it is not yet known whether the implementation contradicts the Constitution1

Furthermore, the conditionally unconstitutional decision also arises because the Constitutional Court considers that conditionally constitutional decisions are often ineffective because of the failure

of the subject of the decision to understand the conditionally constitutional decision.2 It is related to the conditionally constitutional decision that based on the verdict that rejects the petition Therefore, the subject of the decision assumes that there are no constitutional obligations that need to be followed up3 Conditionally Unconstitutional Decision is the opposite of conditionally constitutional decision Thus, the reviewed provisions are declared contrary to the Constitution, if the constitutional requirements are not fulfilled in the implementation of the Law

There are four characteristics of conditionally unconstitutional decision, namely4:

First, there is a conditionally unconstitutional clause in the verdict Second, it is based on the verdict that granted the petition Third, the verdict can be in the form of meaning or giving requirements of unconstitutionality to the norm being reviewed Fourth, it is substantially the same as the conditionally constitutional decision

In regards to the second characteristic, there is an exception in several decisions that declared the petition rejected, in which the petitioner requests the Court to interpret the provisions conditionally constitutional5 Furthermore, concerning the fourth characteristic, it can be seen in the Decision No

54/PUU-VI/2008 which the Court states that “[…] Article a quo at present is unconstitutional and

will become constitutional if the conditions above are fulfilled […]”6 Based on the Court above, it implicitly shows that both types of conditional decisions are basically the same, as in both types, the Court provides requirements that should be obeyed in the implementation, so that the provision will

be constitutional Otherwise, the norm becomes unconstitutional

B The Pattern of Conditional Decisions’ Imposition in Constitutional Review Cases in the Constitutional Court of the Republic of Indonesia

Tracing back to the establishment of the Constitutional Court, the purpose of the Constitutional Court is to uphold the supremacy of the Constitution The purpose can be described in five “functions” attached to the existence of the Court, namely as the guardian of the Constitution, the final interpreter

1 Tim Penyusun Hukum Acara Mahkamah Konstitusi, Op.cit., 144.

2 Constitutional Court Decision No 54/PUU-VI/2008 on the Review of Law No 39 of 2007 on the Amendment of Law

No 11 of 1995 on Excise against the Constitution [14 April 2009] 61.

3 Syukri Asy’ari, Meyrinda Rahmawaty Hilipito, and Mohammad Mahrus Ali, “Model and Implementation of

Constitutional Court’s Constitutional Review Decision (Case Studies of 2003-2012)” [2013] 10(4) Jurnal Konstitusi

675, 687.

4 Faiz Rahman and Dian Agung Wicaksono, Op.cit., 374-376.

5 Ibid., 375.

6 Constitutional Court Decision No 54/PUU-VI/2008 on the Review of Law No 39 of 2007 on the Amendment of Law

No 11 of 1995 on Excise against the Constitution [14 April 2009] 61.

of the Constitution, the protector of human rights, the protector of citizen’s constitutional rights, and

the protector of democracy1 These five functions are embodied into the authorities possessed by the

Constitutional Court, namely to examine, hear, and decide upon certain cases based on constitutional

considerations The establishment of the Constitutional Court as a special tribunal separately from the

Supreme Court is a concept that can be traced long before the modern nation-state, which basically

reviewed the harmony of lower legal norms with higher ones2

Based on Article 24C(1) of the Constitution, the Constitutional Court has four authorities and

one obligation as follow: (1) to adjudicate at the first and last stage, in which the decision is final,

to review a Law against the Constitution; (2) decide upon authority disputes of state institutions whose authority is granted by the Constitution; (3) decide upon the dissolution of political parties; (4)

decide upon disputes over the results of general elections; and (5) obliged to impose a decision on the

opinion of the House of Representative on alleged violations by the President and/or Vice President

according to the Constitution3

Moreover, constitutional review decision balances the interest of the State that could potentially

restrict the constitutional rights of citizens, and safeguard the constitutional rights from being reduced, restricted, or even violated4 Along the way, a constitutional review performed by the Court

undergoing a paradigm shift from a negative legislator position towards positive legislator It can

be seen, for instance, from the cancellation of several Articles regarding the prohibition of ultra

petita in Constitutional Court Law 20115 It implies that the Court can impose a verdict exceeding

what is requested by the petitioner, as well as formulate a norm in lieu of the norm that is declared

contrary to the Constitution6 Furthermore, the Constitutional Court in its development can also provide constitutional requirements for the reviewed norm to make it constitutional as long as the

requirements given by the Court are fulfilled in the form of conditional decision

Looking at the various characteristics of conditional decision as explained in the previous section, conditional decisions essentially attach a set of verdicts containing the contents of the “new

norms” and it has a regulating nature It shows that the Constitutional Court is no longer just serves

as a negative legislator, but indirectly also become a positive legislator Moreover, based on various

theories as proposed by Arthur Schlesinger Jr., and Keenan D Kmiec, the efforts of the Constitutional

Court in “formulating new norms” by providing constitutionality requirements in the decisions be

a form of judicial activism As mentioned above, a judge can be labeled “judicial activists” if they

legislate from the bench7

1 Tim Penyusun Hukum Acara Mahkamah Konstitusi, Op.cit., 10.

2 Maruarar Siahaan, Procedural Law of the Constitutional Court of the Republic of Indonesia (Konstitusi Press 2006) 5.

3 See the 1945 Constitution of the Republic of Indonesia, Arts 24C(1) and 24C(2).

4 Constitutional Court of the Republic of Indonesia, Upholding Constitutionalism in the Political Dynamics, Annual

Report of the Indonesian Constitutional Court Year 2014 (Secretariat General and Registrar of Constitutional Court

2014) 12.

5 See Constitutional Court Decision No 48/PUU-IX/2011 on the Review of Law No 35 of 2009 on Narcotics and Law

No 8 of 2011 on the Amendment of Law No 24 of 2003 on Constitutional Court against the Constitution [18 October

2011]

6 See Law No 8 of 2011 on the Amendment of Law No 24 of 2003 on Constitutional Court, Arts 45A and 57(2a).

7 Keenan D Kmiec, Op.cit., 1471.

Since the establishment of the Constitutional Court in 2003, the number of constitutional review decisions has a significant increase Constitutional review is the authority of the Constitutional Court which has the highest number of cases compared to the other Constitutional Court’s authorities1 As of October 2019, 1266 cases have been decided, where 262 petitions are granted, 456 are rejected, 397 are dismissed, 120 are withdrawn, 22 are aborted, and 9 are not the competence of the Constitutional Court See the table below for detailed statistics of constitutional review cases from 2003 to 2018

Table 1 Summary of Constitutional Review Cases (2003-2018)

No Year

from Previous Year

Registered Total Verdict DecisionTotal al Decision

Condition-Granted Rejected Dismissed Withdrawn

Source: Prepared by Author, 2019.

The table above shows the upward trend in constitutional review cases in the Constitutional Court, followed by the increasing number of the decision Further, concerning the conditional decision, it illustrates that the conditional decision has been used since the initial period of the Constitutional Court establishment Specifically, it began in 2005 in the era of Jimly Asshiddiqie Constitutional Judge’s leadership

As seen in the table above, there are 140 conditional decisions imposed until 2018 To classify the constitutional review decisions into a conditional and non-conditional decision, the Author analyses each of the constitutional review decisions handed down by the Constitutional Court from 2003

1 Constitutional Court of the Republic of Indonesia, “Rekapitulasi Perkara Pengujian Undang-Undang” <https://mkri id/index.php?page=web.RekapPUU> accessed 10 October 2019.

to 2018 Specifically, the Author examines constitutional review decisions with the “granted” and

“rejected” verdict The decisions that have “dismissed” verdict are not considered because this type

of decision has not yet entered the subject matter, as the Court decided that the petitioner does not

have legal standing and/or the case is not the competence of the Constitutional Court Thus, it does

not have a substantial impact on the reviewed norms Below is the elabourated list of conditional

decisions imposed by Constitutional Court up to 2018

Table 2 List of Conditional Decision of the Constitutional Court (2003-2018)

No No of Case Case Leadership Period Type of

Decision

1 058-059-060-063/

PUU-II/2004 and

008/PUU-III/2005

Law No 7 of 2004 on Water Resources Jimly Asshiddiqie CC

2 026/PUU-III/2005 Law No 13 of 2005 on State Budget Year

4 003/PUU-IV/2006 Law No 31 of 1999 jo Law No 20 of

2001 on the Eradication of Corruption

7 14-17/PUU-V/2007 Law No 23 of 2003 on General Election of

President and Vice President, Law No 24

of 2003 on Constitutional Court, Law No 5

of 2004 on Supreme Court, Law No 32 of

2004 on Regional Government, Law No

15 of 2006 on Supreme Audit Board

Jimly Asshiddiqie CC

8 21-22/PUU-V/2007 Law No 25 of 2007 on Investment Jimly Asshiddiqie CC

9 29/PUU-V/2007 Law No 8 of 1992 on Film Jimly Asshiddiqie CC

10 10/PUU-VI/2008 Law No 10 of 2008 on General Elections

Moh Mahfud MD CU

13 54/PUU-VI/2008 Law No 39 of 2007 on the Amendment to

Law No 11 of 1995 on Excise

Moh Mahfud MD CU

14 102/PUU-VII/2009 Law No 42 of 2008 on General Election

of President and Vice President

Moh Mahfud MD CC

No No of Case Case Leadership Period Type of

19 101/PUU-VII/2009 Law No 18 of 2003 on Advocates Moh Mahfud MD CU

20 127/PUU-VII/2009 Law No 56 of 2008 on the Establishment

of Tambrauw Regency in West Papua Province

Moh Mahfud MD CU

21 116/PUU-VII/2009 Law No 21 of 2001 on Special Autonomy

for the Province of Papua as amended

by Law No 35 of 2008 on the Stipulation

of Government Regulation in Lieu of Law

No 1 of 2008 on the Amendment of Law

No 21 of 2001 on Special Autonomy for the Province of Papua to become a Law

26 49/PUU-VIII/2010 Law No 16 of 2004 on Attorney General

Office of the Republic of Indonesia

Moh Mahfud MD CC

27 115/PUU-VII/2009 Law No 13 of 2003 on Manpower Moh Mahfud MD CC

28 1/PUU-VIII/2010 Law No 3 of 1997 on Youth Court Moh Mahfud MD CU

29 5/PUU-IX/2011 Law No 30 of 2002 on Corruption

Eradication Commission

Moh Mahfud MD CU

30 12/PUU-VIII/2010 Law No 36 of 2009 on Health Moh Mahfud MD CU

31 35/PUU-IX/2011 Law No 2 of 2011 on the Amendment to

Law No 2 of 2008 on Political Parties

Moh Mahfud MD CU

32 65/PUU-VIII/2010 Law No 8 of 1981 on Criminal Procedure

Law

Moh Mahfud MD CU

33 37/PUU-IX/2011 Law No 13 of 2003 on Manpower Moh Mahfud MD CU

34 58/PUU-VIII/2010 Law No 20 of 2003 on National

Education System

Moh Mahfud MD CU

No No of Case Case Leadership Period Type of

Decision

35 29/PUU-IX/2011 Law No 21 of 2001 on Special Autonomy

for the Province of Papua as amended

by Law No 35 of 2008 on the Stipulation

of Government Regulation in Lieu of Law

No 1 of 2008 on the Amendment of Law

No 21 of 2001 on Special Autonomy for the Province of Papua to become a Law

38 27/PUU-IX/2011 Law No 13 of 2003 on Manpower Moh Mahfud MD CU

39 46/PUU-VIII/2010 Law No 1 of 1974 on Marriage Moh Mahfud MD CU

40 17/PUU-X/2012 Law No 32 of 2004 on Regional

43 19/PUU-IX/2011 Law No 13 of 2003 on Manpower Moh Mahfud MD CU

44 34/PUU-IX/2011 Law No 41 of 1999 on Forestry Moh Mahfud MD CU

45 58/PUU-IX/2011 Law No 13 of 2003 on Manpower Moh Mahfud MD CU

46 37/PUU-X/2012 Law No 51 of 2009 on the Second

Amendment of Law No 5 of 1986 on State Administrative Court, Law No 50 of 2009

on the Second Amendment to Law No 7

of 1980 on Religious Court, and Law No

49 of 2009 on the Second Amendment on Law No 2 of 1986 on General Court

Moh Mahfud MD CU

47 70/PUU-IX/2011 Law No 3 of 1992 on Workers’ Social

Security, Law No 40 of 2004 on National Social Security System

Moh Mahfud MD CU

48 61/PUU-IX/2011 Law No 20 of 2009 on Title, Orders, and

Honours

Moh Mahfud MD CU

49 34/PUU-X/2012 Law No 8 of 2011 on the Amendment

to Law No 24 of 2003 on Constitutional Court

Moh Mahfud MD CC

50 73/PUU-IX/2011 Law No 32 of 2004 on Regional

Government as Amended Lastly by Law