Indonesia’s Incredible Shrinking Constitutional Court(?)

Last week, murmurs came out of Indonesia that the House of Representatives had agreed on a bill that would significantly revise the powers and role of the Constitutional Court (Mahkamah Konstitusi). Now, Jakarta Globe reports that the House passed the bill.

Two things stand out. First, the House is warning the court not to go beyond its mandate. In particular, several representatives expressed concern that the Court sometimes “clarified” laws without expressly ruling them unconstitutional. This practice, which Simon Butt calls “conditional constitutionality,“had allowed the justices to make statements about the law’s constitutionality more broadly without finding unconstitutionality in the particular case at hand. Now the Court seems like it will be forced to rule one way or the other.

The second major change is that the Court’s role in overseeing and adjudicating elections disputes has been all but eliminated. Some legislators – perhaps not surprisingly – complained when the Court overturned elections results. Jakarta Globe mentioned the possibility of a new elections court, but so far I haven’t seen any more details on that.

The final major provision, nominally less controversial, requires all justices to possess at least a Masters in law and be between 47-65 years old when they join the bench.

Are these changes designed to weaken the Constitution Court? In a sense, it’s hard to escape that conclusion as the House bill will strip away much of the Court’s jurisdiction. However, I’d also heard criticism that the Constitutional Court had become bogged down in election cases. Of course, election cases are potentially the most dangerous to the political elite of an electoral democracy. Therefore, perhaps removing election cases to a separate court will permit smoother relations between the political elite and Constitutional Court? I can’t predict the future, but it’s that same logic which allows courts in some authoritarian regimes to survive – reduce the threat, and allow independence.

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