The constitutional reform started in 1998 with a regime change from an authoritarian state to a democratic state. The 1945 Constitution was extensively amended where protection of citizens’ rights and democracy became two of the main objectives of constitutional reform. The separation of power was also strengthened, particularly to reduce the powers of the President, which had been too dominant.
In 2000, the Ad Hoc Committee of the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat, or MPR) was assigned to amend the 1945 Constitution, following a brief discussion about how to improve judicial power and judicial review. This decision was in line with the recommendations issued by the International Commission of Jurists in October 1999. The first recommendation given by the Commission, with respect to the creation of an independent and effective judiciary, was the creation of a Constitutional Court of Indonesia. According to the Commission, the Court should be given powers to review the constitutionality of legislations, regulations, other sub-ordinate legislation and executive actions and the Court should act as the final forum for human rights complaints resolution.122
Furthermore, the first proposal to establish a new Constitutional Court appeared after members of the MPR Working Committee conducted comparative studies in several countries and invited various scholars to hearing sessions. The main reason which arose during the constitutional amendment discussion was the importance of creating a constitutional review mechanism. In a hearing session on
122 See International Commission of Jurists, The Report of the International Commission of Jurists: Mission to Indonesia (International Commission of Jurists, 1999) 55-6.
28 21 February 2000, Bambang Widjojanto, representing the Indonesian Legal Aid Foundation, addressed the importance of constitutional review.
We do not have any state institution that can review a product of laws which conflict with the Constitution. I agree that legislations can be contested through judicial reviews, whether they are contrary to the Constitution or not. That is the reason why there should be an additional role to the Supreme Court, which is called the Constitutional Court.123
According to academics, including Ramlan Surbakti and Fajrul Falaakh, the creation of the Constitutional Court was also to prevent tyranny by the majority of legislative members in the parliament.
This is important in order to avoid the tyranny of the majority by the legislature. For example, the parliament can be controlled by a particular party which having majority members. The decisions made by the parliament could violate the Constitution, although supported by majority members.124
There was no rejection to proposal to give Constitutional Court the power to review constitutionality of legislations. Lengthy debates occurred when the MPR Ad Hoc Committee members discussed the Constitutional Court position in the Indonesian constitutional structure. There were three opinions emerged in the meeting. First, the Constitutional Court should be a part of the MPR. Second, the Constitutional Court should be created under the Supreme Court. Third, the Constitutional Court should be established as a separate judicial institution.
In the initial draft, most of the Ad Hoc Committee members agreed that the Constitutional Court should be formed under the Supreme Court. However, there was no agreement among members regarding position, jurisdiction and judges’ selection mechanism of the Constitutional Court. Finally, the MPR expanded its own power to review the constitutionality of laws based on MPR Decree No.
III/MPR/2000 on the Source of Law and Hierarchy of Legislations.125
In 2001, discussion for establishing the Constitutional Court continued. The Ad Hoc Committee formed an expert team consisting of 30 people with different backgrounds and expertise to give comments on the existing draft of the constitutional amendment. Among those were senior
123 Majelis Permusyawaratan Rakyat Republik Indonesia, Risalah Perubahan Undang-Undang Dasar Negara RI Tahun 1945 (1999-2002) Tahun Sidang 2000 [Minutes of the Amendment of the 1945 Constitution (1999-2002) Year of Session 2000] (Sekretariat Jenderal MPR RI, 2008) 265.
124 Ibid 613.
125 Mahkamah Konstitusi Republik Indonesia, above n 19, 488.
29 constitutional experts, such as Sri Soemantri, Bagir Manan, Philipus M. Hadjon and Jimly Asshiddiqie. A report prepared by the expert team was delivered before the Ad Hoc Committee by Asshiddiqie; who later became the first Constitutional Court Chief Justice (2003-2008). They proposed that the Constitutional Court should be established as an independent court, separate from the Supreme Court. Furthermore, they also suggested to give Constitutional Court three powers: (1) to review the constitutionality of laws and regulations; (2) to settle disputes between state institutions in implementing legislations; and (3) other powers granted specifically by law. These other powers were proposed to accommodate, for instance, the possibility of election law granting power to the Constitutional Court to resolved electoral disputes.126
The Ad Hoc Committee received expert team recommendations, and responses varied. Pataniari Siahaan from the Indonesian Democratic Party of Struggle (PDI-P) commented that the Constitutional Court powers should be stated specifically in the Constitution. According to him, a legislature is not mandated to decide the vesting of other powers through a law. Pataniari also asked the expert team’s opinions concerning the powers of political party dissolution and impeachment of the President and/or the Vice President exercised by the Constitutional Court in other countries.127 Hamdan Zoelva from the Crescent Star Party (PBB), who later became the fourth Constitutional Court Chief Justice (2013-2015), rejected a proposal by the expert team concerning the constitutional review power for all laws and regulations. Zoelva suggested that the Constitutional Court should only be given a power to review the constitutionality of laws, not other types of laws below the level of national laws falling under the jurisdiction of the Supreme Court.128
One of the historical events that triggered the establishment of the Constitutional Court in Indonesia was the impeachment of President Abdurrahman Wahid in 2000. The impeachment against Wahid was based solely on political grounds. It was conducted through majority voting in a political forum in the Assembly.129 In the midst of this political controversy, the idea to develop an impeachment mechanism through a court, based on legal and constitutional reasons, arose during the constitutional amendment process. Based on that motivation, the Constitutional Court was given a power to be involved in the impeachment process of the President and/or the Vice President. This proposal was fully supported by the PDI-P because they were concerned that the impeachment experienced by
126 Majelis Permusyawaratan Rakyat Republik Indonesia, above n 123, 457-65.
127 Ibid 630-1, 687-9.
128 Majelis Permusyawaratan Rakyat Republik Indonesia, Risalah Perubahan Undang-Undang Dasar Negara RI Tahun 1945 (1999-2002) Tahun Sidang 2001 [Minutes of the Amendment of the 1945 Constitution (1999-2002) Year of Session 2001] (Sekretariat Jenderal MPR RI, 2009) 299-300.
129Asshiddiqie, above n 54, 7.
30 Wahid might also occur to Megawati Soekarnoputri, the Chairwoman of the PDI-P, who replaced Wahid as the fourth President (2001-2004).130
After a lengthy debate and discussion, two options remained on the position of Constitutional Court.
Either it should become part of the Supreme Court, as proposed by the majority factions in the MPR, or it should be established as an independent and separate court from the Supreme Court, as suggested by the expert team and supported by small factions in the MPR. Hendriarto pointed out that the factions - particularly the Golkar and Army/Police factions - who wanted to form the Constitutional Court under the Supreme Court had an interest in establishing a weak court, so that they could avoid consequences of their past actions.131
A decision regarding the Constitutional Court’s position, was made after the draft had been commented on by the MPR members during the General Session held on November 2001. A political compromise was made between factions in the MPR to establish the Constitutional Court separately from the Supreme Court. This decision was also taken after the Supreme Court Justices indirectly refused to be given additional of judicial review powers as they had thousands of pending cases to be resolved.132 However, the Constitutional Court was given a power only to review the constitutionality of national laws, while the Supreme Court retained the power to review laws and regulations under national laws. This means that the proposal submitted by the expert team, where all laws and regulations can be reviewed by the Constitutional Court, was not accepted by the MPR.