Category Archives: Simon Butt

Simon Butt on MK Elections Jurisprudence (Indonesia)

The Centre for Democratic Institutions commissioned Prof. Simon Butt, probably the foremost Western expert on Indonesia’s Constitutional Court (Mahkamah Konstitusi) jurisprudence, to assess the MK’s handling of local elections cases in this report. In particular, Butt worries that the court had not adequately defined its standard for overturning an election (a “structured, systematic, and massive” breach) and does not rigorously evaluate evidence.

This report was published in March, so long before Akil-gate, but it still provides invaluable to the MK’s elections cases and some of the problems that plagued the system even before this October. One has to wonder now how much of the MK’s fuzziness on these matters was deliberate.

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Filed under elections, indonesia, Mahkamah Konstitusi, Simon Butt

Another commission for Indonesian legal reform?

With the brewing scandal over the Indonesian police’s ham-handed efforts to blackball the Corruption Commission (KPK), it appears there is talk once again of a commission to reform Indonesia’s legal system. According to Reuters, Adnan Buyung Nasution, recently appointed by President Yudhoyono to a task force to respond to the scandal, has proposed a new state commission to oversee and enforce legal reforms:

I would like to see the whole case [the recent scandal] as an entry point to reform the legal institutions in Indonesia,’ Mr Nasution, 75, said in a telephone interview. With enough evidence, ‘we might make a recommendation to establish a state commission to reform the legal institutions so that we have rule of law in Indonesia.

Nasution also warned that corruption in the country has deterred foreign investors. Read the entire story here.
My own thoughts – this is probably a temporary balm on a much deeper problem. Nasution cites the example of Hong Kong’s Independence Commission Against Corruption, but studies suggest that political willpower was the most important factor in ICAC’s success. By contrast, recent reports implicate SBY in the conspiracy caught on tape. Indeed, the KPK indicted SBY’s son’s father-in-law, and, according to The Jakarta Post, was said to be preparing indictments against more members of his inner circle. While there is no evidence directly tying SBY to the conspiracy, so far Indonesians do not see him as a profile in courage, according to new polls.
Another concern is the fate of the last Indonesian commission established to reform the legal sector – namely the Judicial Commission. Several years ago, when the Judicial Commission accused several Supreme Court justices of corruption, the Supreme Court turned around and sued the commission in the Constitutional Court. The Constitutional Court accepted the Supreme Court’s arguments and stripped the Judicial Commission of its enforcement powers. [Simon Butt recently published a paper on the case]. 
This case dramatically shows just how vigorously Indonesia’s judges will protect their vested interests. Judges have tended to rally around accused colleagues rather than assist reformers, even if it damages the credibility of both themselves and their court. More ominously, the case also showed just how uncoordinated and disunited stakeholders in the legal sectors have been. Successful legal reform needs committed stakeholders, but so far it seems corruption runs throughout the entire legal system – judges, police, prosecutors, even the bar associations. Whenever one legal institution tries to reform part of the system, another simply undercuts it. In this case, the Judicial Commission and Constitutional Court, both post-Suharto reform institutions, interpreted judicial independence and the rule of law differently. 
Maybe a commission with full presidential backing and oversight over the entire system will fare better than the Judicial Commission. However, the late Indonesian legal scholar Daniel Lev predicted that it would take a generation to achieve meaningful legal reforms. Ten years after the fall of Suharto, Nasution claimed the new legal commission would need 10-20 years to complete its work. Sadly, I fear this predictions are correct and that Indonesian legal reform will only succeed with the arrival of a new generation of Indonesian government officials. 

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Filed under corruption, indonesia, KPK, Mahkamah Konstitusi, Simon Butt

Literature Review: Indonesia’s Constitutional Rights: Strong or Conditional?

Citation: Simon Butt, Conditional Constitutionality, Pragmatism, and the Rule of Law, Sydney Law School Research Paper No. 09/28 (May 2008)

Philippa Venning, Determination of Economic, Social, and Cultural Rights by the Indonesian Constitutional Court, 10 Australian J. Asian L. 100 (2008)

How has Indonesia’s Constitutional Court, the Mahkamah Konstitusi (MK), balanced constitutional rights with the country’s other economic and social goals? Simon Butt of Sydney Law School and Philippa Venning of AusAID propose two ways of understanding the MK’s approach to constitutional interpretation.
Butt discusses the Mahkamah Agung’s reluctance to strike down certain laws despite acknowledging that they might be applied unconstitutionally in some instances (a practice he calls “conditional constitutionality”). For example, in a case decided last year, the MK decided not to strike down a pre-reformasi censorship law, but did admonish the Censorship Board to administer it in the new spirit of “democracy and human rights.” (Decision No. 29 of 2007). Likewise, the court decided to not strike down the national budget for failing to allocate the constitutionally-mandated 20% of funds for education. Rather, it required the legislature to progressively increase funding for education from year to year (Decision No. 26 of 2005). Butt acknowledges “conditional constitutionality” is not uniquely Indonesian, but worries that the MK has not provided enough guidance on how government agencies should treat laws deemed “conditionality constitutional.”

Courts in developing countries find it particularly challenging to enforce economic and social constitutional rights. Philippa Venning, a senior policy analyst with AusAID, compares the Mahkamah Agung’s approach to economic and social rights with that of other developing countries. In South Africa v. Grootbom, the South African Constitutional Court applied a reasonableness test to assess whether the government fulfilled the constitutional right to housing. The court acknowledged that South Africa could not afford to provide quality housing for everybody immediately, but judged the government on whether its policies progressively realized that goal. However, Venning claims Indonesia’s Mahkamah Konstitusi has adopted an even stronger form of judicial review (appropriately named “strong-form,” based on Tushnet’s framework) in which the court directly makes policy determinations about social and economic rights. For example, the the court invalidated a law to privatize the electricity sector because it found that the government had a positive duty to manage the industry under article 33 of the constitution (Decision No. 21, 22 of 2003). Thus, unlike Butt, she claims the MK has not deferred to the other branches of government or imposed conditionality in its constitutional jurisprudence.

So, what’s actually going on with the Mahkamah Agung? Is it exercising “conditional” or “strong-form” judicial review over constitutional rights?

Without reading all of the court’s decisions myself, I cannot say anything definitively. I suspect we may not fully understand the court’s jurisprudence until we see more cases. I also do not think the difference simply stems from the cases or time periods each author used – after all, both articles were published last year. However, I have a few thoughts that might explain this contradiction:

  • Both Butt and Venning probably overstate their analyses of the MK’s jurisprudence. With regard to “conditional constitutionality,” judges facing outside political pressure are often reluctant to make sweeping statements about the constitutionality of laws. Many courts, including the U.S. Supreme Court, often rule that a law might be unconstitutional in certain circumstances, but not as applied to the parties in the case at hand. In one case I read recently, the 7th Circuit decided that a registration requirement for sex offenders was applied constitutionally for one defendant but not the other, the difference between the two being a matter of a few months (U.S. v. Dixon, 551 F.3d 578 (7th Cir. 2008)). On the other hand, while the Mahkamah Agung has delved into intensive policy discussions, I don’t think this is quite the global abnormality that Venning portrays. While Venning classifies India as having a “weak-form” of constitutional review, the Indian Supreme Court has actively taken cases in order to rewrite policy directly from the bench.

  • The MK could be adopting different standards of review for different rights. Most constitutional courts use a generic proportionality test for all constitutional rights. However, some, such as the U.S. Supreme Court, have different levels of review depending upon the right at stake. For example, racial discrimination is reviewed more strictly than gender discrimination. The MK could be adopting a stricter standard of review for article 33, allowing it to engage in thorough policy analysis, than the education budget. However, I doubt that the justices are consciously “tiering” rights.

  • I think the most likely explanation is that the Mahkamah Agung uses policy determinations and pragmatism to substitute for the lack of a coherent constitutional theory of interpretation. In other words, there are no debates between “originalism” or “proportionality” or “active liberty.” I have yet to see anything akin to an Indonesian constitutional “test.” One advisor to the court even told me that the justices decide cases based upon their intuition and life experiences. Furthermore, the justices do not have much jurisprudence from which to develop legal analogies (only 6 years of case law). When this happens, courts often understandably look to other factors that can help them decide a case. Hopefully, in the future the MK justices will rely upon constitutional jurisprudence from other countries for ideas and inspiration.

I do agree with both authors that Indonesian legislators and judges sometimes use vague terms such as “human rights” or “democracy” without defining them. When I was in Indonesia, I was struck by the fact that the Foreign Investment Law contained so many requirements for corporate social responsibility projects without defining how much companies must engage in or what qualified as CSR. Some of this has probably been addressed in administrative regulations, but this leaves the executive with significant discretion. Likewise, returning to the MK’s censorship decision, would suppressing Mein Kampf (which is on sale in some Indonesian bookstores) promote or violate “human rights”? France and the U.S. have taken very different stances on this question, but the MK provides no guidance on how we should interpret “human rights.”

In short, neither “conditional constitutionality” nor “strong-form” review are particularly extreme at this point in the country’s constitutional history, but rather appear to represent the normal growing pains associated with constitutional review (as opposed to more insidious ones). I suspect that as the court develops its jurisprudence, we will see a more systematic theory of constitutional interpretation and fewer outright policy determinations.

If you’re interested in how Indonesia’s Mahkamah Konstitusi interprets other constitutional rights, here are a few more articles to read:

Simon Butt and Tim Lindsey, Economic Reform When the Constitution Matters: Indonesia’sConstitutional Court and Article 33 of the Constitution, Sydney Law School Research Paper No. 09/29 (2009)

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Filed under economic and social rights, indonesia, Mahkamah Konstitusi, Philippa Venning, Simon Butt