The role of the constitutional court in securing constitutional government in Indonesia

Indonesia experienced significant constitutional and political systems transformation after fall of Soeharto’s authoritarian regime in 1998. Constitutional reform was carried out in four stages, from 1999 to 2002, to promote and protect fundamental principles of constitutional government. In order to achieve these objectives, the Constitutional Court was established in 2003 with the main function of upholding constitutional rules and values, particularly through the mechanism of constitutional review of laws. The aim of this thesis is to assess the roles and contributions of the Constitutional Court in securing constitutional government in the Republic of Indonesia over the past twelve years (2003-2015) and to propose recommendations for reform. The thesis measures performance of the Court against core values and principles of constitutional government, namely: (1) the separation of powers; (2) representative democracy; and (3) the protection of fundamental rights and freedoms. This thesis concludes that although the adoption of the centralised constitutional review model in Indonesia was based on political expediency in absence of a serious theoretical inquiry, the Constitutional Court has played a pivotal role in securing constitutional government in Indonesia. The Court has performed crucial roles in guiding constitutional transition and democratic consolidation in Indonesia. In addition, Court’s contribution in protecting fundamental rights and freedoms has been significant and progressive. While Court decisions have been relatively well accepted, its judicial activism and assumed positive legislator role have sparked controversies. This research also finds several weaknesses in the structure and performance of the Court. The quality and consistency of its decisions have come under justifiable criticism. The structural problems include its limited jurisdiction, judicial review system dualism between the Constitutional Court and the Supreme Court leading to jurisdictional uncertainty and inadequacy of the Court’s authority to enforce its decisions. In order to further strengthen constitutional government in Indonesia, this thesis recommends reform of the Constitutional Court’s jurisdiction by the vesting of jurisdiction with respect to both constitutional complaints and constitutional questions and the integration of the judicial review systems under a one-roof scheme. In addition, the thesis recommends improvements to the judicial selection mechanism and the tenure of constitutional justices as well as the reduction of the Court’s non-judicial functions in order to strengthen its independence and integrity.