Indonesian Constitutional Politics 2003-2013

Abstract

In 2011, the Indonesian Parliament enacted Law 8 of 2011 amending Law 24 of 2003 on the Indonesian Constitutional Court. The amendment was intended to limit the Court’s jurisdiction after a period of sustained activism. The Court responded by declaring substantial parts of the amending law constitutionally invalid.

This dissertation examines the timing and nature of this unsuccessful ‘attack’ on the Court’s authority and the reasons behind the apparent ease with which the Court was able to thwart it. Two broad sets of theorisations of judicial power are tested: those that focus on external factors or background political conditions, and those that focus on internal factors or the issue of judicial agency. The dissertation’s central finding is that no single theorization adequately accounts for the events of 2011. Rather, a combination of theoretical perspectives is required.

From 2003-2008, the Court’s first Chief Justice, Jimly Asshiddiqie, exploited the window of opportunity provided by the groundswell of popular support for constitutionalism in Indonesia to build the Court’s public reputation. His successor, Mahfud MD, was appointed to the Court on promises of returning it to its original jurisdiction. Instead, Mahfud MD pushed the Court in an even more activist direction, dispensing with Asshiddiqie’s careful, scholarly style and introducing a ‘substantive justice’ approach that further exacerbated the Court’s relationship with the political branches.

That change explains the timing of the 2011 attack. The Court’s capacity to resist the attack, in turn, was a function of the fragmentation of Indonesian party politics. While it was one thing to construct the political coalition required to pass the 2011 reforms, it was another to amend the Constitution to counteract the Court’s decisions.

While the Court emerges from this story as an apparently strong institution, its somewhat dogmatic stance on judicial independence leaves cause for concern. Paradoxically, the Court’s very success in contributing to the strengthening of Indonesia’s constitutional democracy means that it needs to develop a new understanding of judicial independence, one that is more sensitive to democratic preferences. The thesis concludes by explaining this idea and speculating about the future trajectory of Indonesian constitutional politics.