1 THE CONSTITUTIONAL COURT AND THE APPLICATION OF INTERNATIONAL HUMAN RIGHTS NORMS: INDONESIA S EXPERIENCE Susi Dwi Harijanti Introduction In 2002, Indonesia completed a series of constitutional amendment that marked the Indonesia s transformation to become a democratic constitutional state under the rule of law. A number of new constitutional provisions were adopted and new institutions were established, including the formation of constitutional court as well as the adoption of a bill of rights. These two new instruments have been believed as fundamental for the application of a democratic constitutional state under the rule of law. Furthermore, the principle of the rule of law was inserted into the paragraph of the Amended Constitution, which is available in Art. 1 para (3). 1 The powerful new Constitutional Court (hereafter the CC) was officially established in 2003. Art. 24C para (1) of the Amended Constitution grants it the powers to make the final decision in reviewing statutes in the light of the Constitution; to determine dispute concerning the authority of the state organs whose power is derived from the Constitution; to dissolve political parties; and to resolve disputes regarding the results of a general election. Moreover, it has the power to make decisions concerning opinion of the House of Representatives with regard to alleged violations by the President and/or the Vice President of the Constitution. In other words, it has the power to have the final legal say in any impeachment proceedings. 2 Presented at the International Short Course on The Mechanism in Conducting Constitutional Authorities in Indonesia, Jakarta, 4 th December 2015. I thank to Wicaksana Dramanda and Adnan for their research assistance. S.H. (Padjadjaran University), LLM (The Univ. of Melbourne), PhD (The Univ. of Melbourne), Senior Lecturer of Constitutional Law and Human Rights Law at Padjadjaran University, Executive Director of the Indonesian Community of Human Rights at Faculty of Law of Padjadjaran University, Associate of the Center of Indonesian Law, Islam and Society (CILIS) at Melbourne Law School. 1 Previously, this principle was available in the Elucidation of the Constitution. 2 Art. 24C para (2) of the 1945 Constitution as amended by the Third Amendment.
2 Since its inception, the CC has been regarded as a new model for judicial reform in Indonesia in particular in terms of transparency and capability. 3 It is seen as concerned with achieving a broad form of social justice and with advancing the process of democratization. 4 More significantly, the CC appears to be emerging as an effective guardian of the new Constitution, 5 particularly in relation to the human rights norms through the power of constitutional review. This paper aims to discuss the contribution of the CC in the application of international human rights norms. This paper proceeds as follows. Part A will explain human rights norms embedded in the Amended Constitution, which then be followed by Part B that will discuss some of the CC decisions in regard to human rights. Part C will provide summary of the discussion. Although I argue that the CC plays an important role in applying international human rights norms, however, the CC has not yet provided strong and solid arguments on the use of international treaties on human rights in its decisions. A. Human Rights and the Amended 1945 Constitution Although it is not expressly stated, under the Amended 1945 Constitution, the CC is the state s highest jurisdiction on constitutional matters. This is mainly because the CC is the only court to hear constitutional disputes through which it has the power to make the first and final binding decision. To understand the breadth of this mandate, in particular it relates to human rights, a brief overview of human rights provisions is important. In 2000, the People s Consultative Assembly the highest state s organ at the time agreed to adopt a bill of rights. Unlike its predecessor, human rights and liberties have been one of the main focuses of the new Constitution. It directly incorporates the Universal Declaration 3 Susi Dwi Harijanti and Tim Lindsey, Indonesia: General Elections test the amended Constitution and the new Constitutional Court, (2006) 4,1 Int t J Con Law 151. See also, Susi Dwi Harijanti, Comparative Law and Constitutional Amendment: The Case of Indonesia, Paper presented at the International Conference on Comparative Law organized by College of Comparative Law, China University of Political Science and Law, Beijing, September 25-26, 2015, p4. 4 Ibid. 5 Ibid.
3 of Human Rights. 6 Chapter XA of the Constitution dedicates ten articles to human rights and it is the first meaningful protection of human rights in the Constitution since the Old and New Order governments. Moreover, it represents a radical shift in Indonesia s constitutional philosophy from essentially authoritarian to liberal-democratic in nature. 7 The Constitution places a heavy burden on the state to guarantee these rights, culminating in Art. 28I para (4), which declares that the protection, advancement, upholding and fulfillment of human rights are the responsibility of the state, especially the government. The original 1945 Constitution contained few articles that guaranteed civil and political rights. The absence of significant constitutional protection had been largely caused by intense philosophical debates among the founding fathers and the framers of the constitution during the preparatory process in drafting a constitution for Indonesia in 1945. There were two divided opinions in regard to human rights clause, in particular it related to freedom of expression. Soepomo strongly rejected the idea of inserting freedom of expression in a constitution given the fact that this right was closely linked to individualism and it was therefore in contravention with the philosophical ground of the constitution which was based on the integralistic staatsidee. 8 Soekarno shared similar argument with that of Soepomo. In contrast, both Mohammad Hatta and Muhammad Yamin strongly endorsed protection of freedom of expression in a constitution. Hatta argued that although Indonesia would correctly be based on collectivism, but protection of freedom of expression was essentially important in order to prevent excessive powers that might be applied by state or government. 9 The debates then resulted in a compromise provision that fully said: The freedom to associate and to assemble, to express written and oral opinions, etc., shall be regulated by law. 6 See also Tim Lindsey, Constitutional reform in Indonesia: Muddling towards democracy in Tim Lindsey (ed), Indonesia: Law and Society, 2 nd edition, Annandale, NSW: The Federation Press, 2008, p29. 7 Ross Clarke, he Bali Bombing, east Timor trials and the Aceh Human Rights Court retrospectivity, impunity and constitutionalism in Tim Lindsey (ed), Indonesia: Law and Society, 2 nd edition, Annandale, NSW: The Federation Press, 2008, p432. 8 Muhammad Yamin, Naskah Persiapan Undang-Undang Dasar 1945, Jilid Pertama, Jakarta: Prapanca, 1959, p114, 314-5. 9 Ibid, p296.
4 As mentioned above, the 2000 amendment essentially took the form of a Bill of Rights that closely modelled on the Universal Declaration of Human Rights. The Constitutional coverage of protection is arguably more extensive than those of many developed states. 10 A number of specific provisions and protections enshrined within the Amended Constitution include: Citizenship, the right to have citizenship and equality before the law. Anti-discrimination and equal opportunity. Freedom of expression, assembly and organization. The right to education, learning and access to information. The right to a healthy environment. Freedom of religious and believe and its practice. Freedom from torture and other degrading or inhumane acts. The right to adequate housing and health services. The right to state-funded social welfare services. The right to have family and to procreate. Freedom of the press and for the expression of cultural values. The right of indigenous people. The right to property Non-retrospective principle. Given such extensive constitutional coverage on the protection of human rights, it is thus essential to have a court which plays major role in enforcing these constitutional rights. The next Part deals with the application of human rights norms within the CC. B. The Substantive Human Rights Jurisprudence of the Constitutional Court The discussion on the application of international human rights norms within the CC will undoubtedly relate to the issue as whether or not international treaties have been used as main legal sources, in particular when the CC construes the constitutional provisions. In a broader sense, Simon Butt has identified three approaches to international law in the CC s 10 Tim Lindsey, above n6, p29.
5 decisions. 11 First is the weak-use approach by which the CC refuses to use international law as a reference point and ignores or dismisses arguments based on international law from the parties. 12 Surprisingly, in some cases, the CC has rejected the use of international norms, although the CC may have been influenced by the norms. This is evident, for example, in its decision on Children s Court Law Case. 13 The applicant raised some international law argument challenging the validity of several provisions that made the age of criminal culpability eight years old for some offenses. The CC changed that age to twelve, which was in fact in line with the UN Committee on the Rights of the Child. In its decision, however, the CC clearly stated that it was not using these instruments and recommendations... [as] a gauge to assess the constitutionality of the age of responsibility for children. 14 Second approach is that the CC gives more credence to international law, but attributes no real influence to it. 15 This means that the CC refers to international law aiming to merely support a decision in a way it has already arrived at, based on an interpretation of the Constitution and Indonesian law that the Court claims as its own. The final approach shows that the CC relying quite heavily on international legal principles and interpretations from international bodies to help it construe the Indonesian Constitution, the statute being reviewed in the case, or both. 16 According to Butt, this approach is evident in the CC s Decision that reviewing Law 23 of 2003 on General Election of President and Vice President, which is also known as Abdurrahman Wahid Case (Constitutional Court No. 008/PUU-II/2004). 17 In addition, it is well-expressed by one judge in a case involving employment rights: [I]n order to understand the right to work in 11 Simon Butt, The Position of International Law Within the Indonesian Legal System, (2014) 28 Emory International Law Review, 15 12 Ibid. 13 Decision Reviewing Law No. 3 of 1997 on Children s Courts (Children s Court Law Case) (Constitutional Court 1/PUU-VIII/2010). 14 Ibid, p151. 15 Simon Butt, above n11, p16. 16 Ibid. 17 Ibid.
6 the Constitution, it is best to carefully study various rights in international labour conventions. 18 In what follows, I provide selected case example of the Court s decision that apply international human rights norms. It is important to note, however, that since the CC does not have power to hear constitutional complaint, all constitutional rights enforcement have been done through the power of constitutional review. 1. The PKI Case or the Communist Party Case 19 The applicants of this case consisted of two groups. The first was filed in Case No. 011/PUU-I/2003, and the second was Case No. 017/PUU-I/2003. According to the CC Rules of Procedure, these two petitions are allowed to hear simultaneously. The applicants sought to review the constitutionality of Art. 60g of Law No. 12 of 2003 concerning General Election, which limited the rights of citizens to stand for election. This article specifically prohibited former members of the banned Indonesian Communist Party, including its mass organizations and any person directly or indirectly involved in the G30S/PKI or any other illegal organization to be elected for members of the House of Representatives both at the national and regional and local levels. They argued that Art. 60g breached their constitutional rights as regulated by Art. 27 para (1), Art. 28D para (1) and Art. 28I para (2) of the Amended Constitution. The Court s judgment handed down on February 24, 2004, struck down Art. 60 g, although one judge dissented. 20 In its decision, interestingly, the CC referred to Art. 21 of the UDHR and Art. 25 of the ICCPR despite the absent argument on the reason why it used such international legal instruments. The Court recognized that individual rights could be limited by a statute but it found that those limitations must be based on strong, reasonable, proportional and not extreme ground. However, in its examination, the Court further 18 Ibid. 19 See also, Susi Dwi Harijanti and Tim Lindsey, above n3, p149. 20 Summary of the Court s Decision No. 011-017/PUU-I/2003.
7 found that the ban on communist-linked candidates in Art. 60g was based solely on political grounds, and that these were neither reasonable nor strong. It, thus, decided that Art. 60g was in contradiction of the Constitution. In particular, the article breached the following constitutional provisions: a. Art. 27: equality before the law and government. b. Art. 28D para (1): equal rights to recognition, security protection, and certainty of just laws and equal treatment before the law. c. Art. 28D para (3): right to equal opportunity in government. d. Art. 28I para (2): rights to freedom from discriminatory treatment. Accordingly, Art. 60g was not legally binding and former communists and those suspected of being communists or linked to them, were entitled to stand for election. The Court further said that this decision was intended as a step toward national reconciliation and justice for the future. 2. The Bali Bombing Case The applicant, Masykur Abdul Kadir, had been convicted in Indonesia s general courts of involvement in the 2002 Bali Bombings and sentenced to 15 years imprisonment under an anti-terrorism law that was enacted after the bombings took place (Law No. 16 of 2003). He argued that this anti-terrorism law, which was applied retrospectively to pursue him and other perpetrators, breached his constitutional right regulated in Article 28(1) that prohibit the use of retrospective law. By majority of five judges to four, the CC handed down decision that declared the disputed statute was unconstitutional. In making judgment, the majority refered to some of international legal instruments, including Art. 11 (2) UDHR, Art. 4 (2) ICCPR, and Rome Statute. Moreover, they cited the US Constitution that prohibits the use retrospective law as well as regional legal instruments, such as European Convention for the Protection of Human Rights and Fundamental Freedom as well as American Convention on Human Rights. 21 21 Summary of the Court s Decision No. 013/PUU-I/2003, p4-5.
8 According to Butt, from these conventions and examples, the majority reasoned: [T]he essence of the principle of non-retroactivity is to protect against the criminalisation of an act that was not considered a crime when the act was perpetrated... Also prohibited are new laws which stipulate a harsher penalty or punishment than the penalty or punishment applicable at the time the act was committed... [Retrospective legislation is justified provided that] it does not violate the two prohibitions mentioned above. 22 Despite the significant use of international legal instruments, in particular which take the form as international covenant or treaty, it is important to note that at the time Indonesia was not a party to both the ICCPR and the ICC. Like the PKI Case mentioned above, the question is, then, under what circumstances does the CC use such a covenant or treaty? Sadly, however, in its decision, the CC did not again explain further the reason why it used the international instruments. It is my opinion that in the future, the CC should provide solid reason that can enrich discussion regarding the position of international law within the Indonesian legal system. 3. The Abdurahman Wahid Case The applicant was the former President who challenged the constitutional validity of Art. 6 para (1) of the 2003 General Election Law, which required candidates to be spiritually and physically capable of performing the duties and responsibilities of President or Vice President. He argued that this article breached his constitutional rights, in particular Art. 27 para (1) of the Amended Constitution. He further argued that Art. 6 para (1) breached Indonesia s international legal obligation stemming from the ICCPR to which Indonesia had been a party. In examining the case, the CC observed that the applicant should have refered to Art 2 of the ICCPR that prohibit discrimination based on race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Following this, the Court argued that Art. 6 para (1) of Law on General Election did not, in fact, apply discrimination based on any of these grounds. 22 Simon Butt, above n11, p21.
9 Surprisingly, the Court cited the 1975 Declaration on the Rights of Disabled Persons as the international instrument most relevant to the case. 23 Art. 4 of the Declaration stated by the CC, says: Disabled persons have the same civil and political rights as other human beings; paragraph 7 of the Declaration on the Rights of Mentally Retarded Persons applies to any possible limitation or suppression of those rights for mentally disabled persons. Article 7 of the 1971 Declaration on the Rights of Mentally Retarded Persons states: Whenever mentally retarded persons are unable, because of the severity of their handicap, to exercise all their rights in a meaningful way or it should become necessary to restrict or deny some or all of these rights, the procedure used for that restriction or denial of rights must contain proper legal safeguard against every form of abuse. (emphasis in original Court citation). 24 Simon Butt argues that the reference to these two Declarations was problematic as the character of the Declaration is non-binding resolution of the UN General Assembly. 25 Furthermore, Butt questions on the use of the Declaration on the Rights of Mentally Retarded Persons for this case in a way that the Court applies broader interpretation to the phrase of spiritual and physical capability in Art. 6 para (1) of the disputed law to include mentally retarded persons. In this context, I share the same view with that of Butt. C. Conclusion The fact that the CC has played major role in upholding and enforcing international human rights norms is undisputable. This is evident from some of the selected cases that already heard by the CC, including the PKI Case and the Bali Bombing Case regardless Indonesia was not a party to the ICCPR when the CC handed down its decisions. However, given the fact that the CC often refers to international human rights treaties in order to interpret disputed statutes, it is important to consider that the Court should develop practice that will show the position of international law within the Indonesian 23 Indonesia is now a party to the Convention on Person with Disabilities. 24 Simon Butt, above n11, p18. 25 Ibid.
10 legal system. It, thus, should provide clear arguments on the use of particular international legal instruments.