Category Archives: constitutional review

The Court judges itself

A few times this fall I’ve reported that the Indonesian DPR passed legislation stripping the Mahkamah Konstitusi of much of its jurisdiction. Well, it turns out that the Court ruled the law unconstitutional and returned those powers to itself. It’s a fascinating case of constitutional courts expanding their own jurisdiction, arguably much bolder than Marbury v. Madison because the Court’s jurisdiction is nominally based on the 2003 Constitutional Court Law, not the 1945 Constitution itself. I’ve reposted The Jakarta Post article below because it’s worth reading in full:

Justices restore court’s power

Ina Parlina, The Jakarta Post, Jakarta | Wed, 10/19/2011 8:10 AM*

The Constitutional Court revived its authority on Tuesday after annulling the latest additions in the newly revised law that had limited its powers of judicial review.

The court annulled 16 clauses in 10 articles from the 2011 Constitutional Court Law on Tuesday, including a controversial article that had stripped its authority to issue ultra petita verdicts — those that are beyond requests in a review case.

“If it concerns public interests, Constitutional Court justices should not only be fixated on a petition,” justice Akil Mochtar said during the hearing, adding that ultra petita was commonly used by constitutional courts in many countries.

He added that the argument claiming the bench had abused its power by delivering an ultra petita ruling was wrong.

“Institution of constitutional review, first born in the United States in 1803, was beyond what was requested by the plaintiff,” said Akil.

The House passed a second revision of the Constitutional Court Law in late June that includes significant changes to the court’s authority. The revision has widely been perceived as significantly limiting the bench’s authority and posing a potential threat to the court’s independence in handling future cases.

Aside from barring the court from delivering the ultra petita verdicts, the revisions also did not allow the court to change articles in a law and also put the court under the oversight of the House of Representatives, the government and the Corruption Eradication Commission (KPK).

Petitioned by a coalition of NGOs, a judicial review concerning the controversial articles was filed a week after the law’s enactment.

An individual named Fauzan also filed another judicial review against the ultra petita and the authority to change articles in a law.

Akil said the absence of the authority to change articles in a law would reduce the court’s flexibility in a review case.

“[The article] constraints the court to test the constitutionalism of norms,” he said.

He further argued that in cases that the court had annulled legal articles, there would be “an absence of law” if such arrangements are not available.

With Tuesday’s verdicts, the court has regained all of its authority prior to the second legal revision.

The court only rejected an article concerning the maximum age of a court justice.

It has kept the article that rules that court justices must be 47 at the youngest and 65 at the oldest.

Wahyudi Djafar from the Institute for Policy Research and Advocacy (Elsam), which is also a member of the coalition, said that Tuesday’s ruling was not only a victory for Indonesian democracy, but also proof of how poorly the House had performed in carrying out its legislative function.

“It is obvious that the House never tried to draft an appropriate regulation,” Wahyudi told The Jakarta Post after the hearing.

“Since the reformation era, they always try to hinder our democratic process in terms of establishing a good law as its foundation, including stripping citizens’ constitutional rights in the revision of law.”

Wahyudi admitted, however, that ultra petita authority had both positive and negative attributes.

“But you must see the bigger picture. Most of the cases concern public interests. It is for the greater public good not to harm or benefit only one side.”

The court’s recent ruling, which stated that Busyro Muqoddas should retain the position of chairman of the Corruption Eradication Commission (KPK) for the next four years, is an ultra petita ruling from a review of the 2002 KPK Law.

The plaintiff asked the court to clarify the definition of the KPK leaders’ four-year tenure and whether it is possible to replace someone such as Busyro.

The court also restored its authority to use laws other than the Constitution in their consideration in delivering a ruling.

“However, in certain cases the bench must see all laws as one system where laws should never overlap each other,” Akil said, adding that the new provision would only be an obstacle.

* Wow, I’m surprised I missed this article! Actually, I’m not because I was at an all-day conference on October 19, but still it’s an important one.

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Filed under constitutional review, indonesia, Mahkamah Konstitusi

(Dissolve) Party Time

A few weeks ago, I’d mentioned a report about changes to Indonesia’s Mahkamah Konstitusi. In particular, the legislature passed a law stripping the court of its jurisdiction over election disputes, particularly dissolution of political parties. (Of course, this very function has been at the heart of Thailand’s constitutional politics recently). Now, some Indonesians seem to be rallying in support of the court. According to The Jakarta Post, Pong Harjatmo, a former actor, has asked the Constitutional Court to strike the law down. Pong alleges that, “The people vote for a political party during elections. But after the party wins and gains political control, the people seem to lose the right to control the parties”

This presents an interesting question about the relationship between democracy and judicial review. Many Western scholars bemoan judicial review as an undemocratic constraint on the popular will. However, in many cases, courts have acted to enforce rights that elected governments chose to ignore. Of course, one such case is the U.S. Supreme Court’s decision in Brown v. Board of Education to abolish segregation. Now, it seems some Indonesians hope their Constitutional Court can play a similar role, protecting them from the corruption and abuses so prevalent in Indonesian politics.

We’ll see whether these efforts are successful. The biggest question is whether Pong and his fellow protestors gather more support. So far, while Indonesians have complained about corruption, the Constitutional Court has been viewed as a minor player. It seems citizens would have to believe that the Court would play a larger role in enforcing fundamental rights in return for public support.

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Filed under constitutional review, elections, indonesia

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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Filed under constitutional review, indonesia, Mahkamah Konstitusi

Book Review: Towards Juristocracy

I’m back from Asia! I’ll have more pictures on my photo website soon. In the meantime, here is a short book review of a book I finished on my flight:

In Towards Juristocracy: The Origins and Consequences of the New Constitutionalism, Hirscl tries to explain not just why countries adopt judicial review, but also when. This is important, because a sufficient theory about the adoption of judicial review must account for the timing. As such, he selects three countries (Canada, New Zealand, and Israel) that did not undergo an obvious political revolution or regime change at the time of their constitutionalisation (a fourth, South Africa, fits the more common pattern of constitutionalism following a democratic transition).

 Hirschl’s thesis – the hegemonic preservation theory – is that political, economic, and judicial elites adopt constitutional review in order to preserve their (often neoliberal) policy preferences in the face of mounting opposition. He analyzes the history of constitutionalisation in his sample countries and shows how changing political and demographic domestic trends, such as immigration, threatened the policies of current elites. He also scrutinizes court opinions, particularly on criminal procedure, privacy, and socio-economic rights, to show how they better match elite neoliberal policy preferences than notions of “progressive” jurisprudence.

I found the hegemonic preservation theory compelling, but felt Towards Juristocracy left a few questions open. First, it does not explain variations between elite policy preferences and the final outcome of constitutions. For example, the Canadian Charter does not provide strong protection for property rights, a key element of neoliberal thought. Likewise, the South African Supreme Court has adjudicated socio-economic rights, albeit to a limited degree. To what extent do the negotiations and power dynamics amongst elites and rising political forces affect hegemonic preservation theory? Is there a theory to predict how much of the elite’s preferences will be preserved through the process of constitutionalization?

This is a good book to read alongside Tom Ginsburg Judicial Review in New Democracies: Constitutional Courts in Asian Cases. It provides plenty to ponder. I’d be interested in more studies of hegemonic preservation theory in developing countries outside the commonwealth/British legal family.

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Filed under constitutional review, Ran Hirschl