V. The Judiciary

This past week began my time in Jakarta in the chambers of Constitutional Court Justice Saldi Isra. The Constitutional Court (Mahkamah Konstitusi, MK) is one of two high courts in Indonesia, the other being the Supreme Court (Mahkamah Agung, MA). As one of the MK’s subject matter jurisdictions is disputes over election results and constitutional law, my work has consisted of research on a mechanism called the presidential candidacy threshold, a memo on U.S. jurisprudence for accepting cases involving electoral disputes, and editing Justice Saldi’s law clerks journal articles on constitutional interpretation. It has been a wonderful opportunity to apply what I learned during my first year of legal study and go deeper on certain constitutional issues, all while navigating a new legal approach and exploring different electoral systems. 

This week’s entry is all about the Indonesian judiciary, with focus on the MK. As with most of my writings, I begin with some historical context, lay out the judicial system itself, and discuss my personal experience with the MK and its staff.

The Supreme Court and the Lower Courts

Following reforms in the post-Suharto era, the Supreme Court (MA) now oversees the entirety of the Indonesian judicial system except for the Constitutional Court. During the Sukarno and Suharto regimes, the government administered much of the MA and lower courts, controlling funding and staffing and with it much of the judicial decision-making process. So-called “telephone justice” was rampant, as judges would have to conference with the presidential palace or risk professional and personal destruction. Credit is due to the thousands of judges that worked under dictatorship, and Suharto flippancy sometimes allowed high quality decision-writing, but judicial independence during the Guided Democracy and New Order eras was always revokable by presidential whim.

These abuses were addressed during the Era Reformasi, initially by political actors exercising restraint and later through legislation moving all court administration to the MA. This shift, however, produced burdens of its own, as an already ill-equipped MA took on the thousands of staff and responsibilities previously handled by government bureaucracy. The result has been a slipshod administrative apparatus, with varying degrees of success and failure. For years there was no central repository of court decisions for public consumption, and even judges were hard-pressed to access the rulings of fellow jurists. There have been valiant efforts to improve these issues, but lack of transparency, questions of corruption, and blatant mismanagement remain persistent, and the COVID-19 pandemic has given administrators of all levers of government permission to neglect and restrict public access.

Management aside, the MA is statutorily capped at sixty members, though approximately fifty justices have served at any given time since its creation. Justices are proposed by an independent judicial commission, submitted to the DPR for approval, and then confirmed by the President. Justices are limited to five-year terms, and the chief justice and vice chief justice are elected from within the justices for five-year leadership rotations. Justices and lower court judges are overwhelmingly career judges, one of several legal tracks that Indonesian law students choose upon graduation. As a result, they rarely come from political backgrounds and often have little experience in private practice or general litigation, although these trends are changing.

The Indonesian National Monument, by which I walk daily.

The MA sits adopt a four-part court system: “general” courts, administrative courts, religious courts, and military courts. Each is divided into two tiers, with a district court of first instance and an appellate court. Unlike the federated American system, there are no state/provincial court systems, making every Indonesian court part of the national system. 

The general courts are most familiar to Americans, as they handle most matters of “ordinary” law. Criminal charges, property disputes, contract litigation, and most tort cases are settled in the general courts, and at a rapid clip. The MA has the authority to issue procedural and substantive regulations (called circular letters, or circulars) on lower courts, and one such circular requires cases to be decided within six months of filing. In addition, DPR statutes impose strict fourteen day timelines for appeals to be filed. The impact of these time limits poses questions of justice, but Indonesian courts cannot be accused of sluggishness in handing down rulings, and the public has responded well to courts’ speedy decisions.

The general courts also comprise a series of special courts with specific subject matter jurisdiction. These courts focus on specialized areas like bankruptcy, intellectual property, and maritime law, but they are sometimes tribunals to address certain events, like human rights violations during the Timor Leste breakaway movement and ongoing upheaval in West Papua. Many of these were hastily organized under pressure by the International Monetary Fund or human rights groups, and they have enjoyed neither adequate investment nor public respect. Many are now de facto disbanded, and the lack of quality judicial training and commitment to their success have resulted in proceedings characterized more by form than function. Judges in the special courts are sometimes chided as “grass judges” or working in “grass court” because vegetation has overtaken many of the courts’ parking lots.

Similarly troubled are the administrative courts. Sharing jurisdictional boundaries with both the general courts and the Constitutional Court, administrative courts have a relatively light caseload and are distrusted for their lack of substantive consideration of cases. This is especially problematic because it is the primary venue for citizens to bring claims against the government for regulatory violations. Their uncertain jurisdictional territory means they often dismiss cases for being filed incorrectly or with the wrong system, but the general courts will often do the same, leaving citizens navigating a crushing bureaucracy by ping ponging between two systems reluctant to wade into governmental affairs. Serious investment by the DPR and the MA is needed to make the administrative courts more than slot machine justice.

Even worse are the military courts, which often operate as an unaccountable parallel system for military personnel. Though nominally limited to violations of military law by military members, the general courts gladly allow the military courts to try both current and former branch members for military and civil breaches. Here, as always, the dead hand of former president Suharto hangs heavy. Military and military court staff remain populated by New Order regime officials and their progeny, and they maintain their preference for autonomy from democratic governance. Legislative leaders have embarrassed themselves repeatedly by calling for reforms and passing actual laws that have led nowhere, as military leaders routinely flout attempts to reduce their legal authority.  

This is perhaps not without some justification, as factions of the military politicked desperately to avoid a legislature dominated by Suharto’s party and being made examples of by New Order politicians in need of scalps to save face with the public. But as a system of justice, the military jealously guards its members and court system. Political and social change will need to proceed sorely needed legal reform.   

In stark contrast are the religious courts, who have often led in efficiency and transparency. These are restricted to Muslim citizens filing claims related to marriage, succession, charitable gifts and bequests, and payment of alms. In reality, most litigation revolves around divorce, and they are remarkably friendly to women litigants seeking to end their marriages, so much so that the courts have received the moniker as “divorce on demand” courts. They are popular with the public, routinely being rated the most trustworthy and fair of all the courts, and even the government as a whole. Of course, given their heavy focus on divorce, they are functionally a specialized divorce court, making subject matter expertise and legal certainty easier to develop.

All told, the MA and its body of lower courts have endured enormous transitions and workloads, and newer generations of Indonesians entering the legal field are increasingly more educated and determined to eradicate dysfunction and corruption. Still, a powerful and ingrained judicial bureaucracy continues to stifle deep reform, and current political priorities tend toward infrastructure, energy development, and regional influence rather than judicial restructuring.

The Constitutional Court

A key provision of the Era Reformasi was the establishment of the Constitutional Court (MK). Installed with the power of judicial review, the MK contrasts the civil law tradition of the Supreme Court (MA) and its courts, relying instead on a developing body of jurisprudence to adjudicate constitutional and other specific subject matter claims. The MK has been largely successful since its creation in 2002, though more recent scandals have damaged its legitimacy, including the arrest of the third Chief Justice on corruption charges. Modeled on both the U.S. Supreme Court and Austrian Constitutional Court, it is composed of nine justices, three appointed by the president, three by the DPR, and three by the MA. Originally limited to five year terms, a 2018 law extended terms to fifteen years but mandated retirement at age seventy. A few days ago, at time of writing, the MK ruled that this law applied to sitting justices as well. Kudos to the Court for their self promotion.

The Constitutional Court at night. "Nine columns for nine justices." Photographing the building in the morning is difficult because the sun overtakes the shot.

The MK has first and final jurisdiction over five areas:

  1. the dissolution of political parties
  2. the validity of articles of impeachment against the president or vice president
  3. the jurisdiction of constitutionally mandated state institutions
  4. the resolution of electoral disputes
  5. the constitutional review of national legislation

The first two have never been used, and the third has been tested rarely. The MK has, however, heard thousands of electoral dispute cases and reviewed the constitutionality of hundreds of laws.

With a relatively young jurisprudence, the MK does not yet have a sophisticated body of standards for reviewing the constitutionality of laws, relying often on scholarly arguments and looking to peer institutions handling of similar cases. Nonetheless, the MK has been a pioneer in quickly publishing its opinions digitally and organizing decisions in a legible way for public consumption. Tensions familiar to Americans – restraint versus activism, stare decisis versus novel arguments, conservative outlook versus liberal worldview – play out in the halls of the MK, but its tri-furcated appointment process channels an additional battleground: competing views on which branch deserves deference. It would be wrong to label any of the justices as hacks for their nominating institution, but their viewpoints are no doubt colored by their relative experiences with the executive, legislative, and judicial departments, and constitutional review is routinely predicated less on individual rights guarantees and more on whether the offending institution overstepped its authority. As mentioned, express cases of separation of power have been rare, but when laws have been invalidated it has tended to be on the grounds of an individual institution’s overreach, not the government as a whole.

Of primary interest to me is the MK’s electoral dispute resolution function, which is rather alien to the American judicial system. Political parties and individual candidates regularly claim fraud or mismanagement of elections, and because elections are organized by a single general election commission (KPU), all of these cases are litigated between a participating party or candidate and the KPU. Petitioners often lose, but the MK has taken seriously their role in shoring up electoral confidence by granting most applications and issuing thorough rulings.

Most election disputes are directed at the results themselves, and the MK generally reviews these by examining the body of evidence for clear mathematical error or blatant maladministration, such as vote buying or total disregard for election law. The burden of proof is always on the challenger, and they are often hard-pressed to produce data sufficient to overcome the KPU’s extensive record. However, in instances of “systemic, structured, and massive” error, wherein mistakes are proven to have influenced or likely influenced the outcome, recounts and even new elections have been ordered.

Jurisdictional Glitches

There are two noteworthy jurisdictional issues with the MK: the lack of a constitutional complaint mechanism and a split judicial review of laws and regulations.

In conversations with MK clerks and Justice Saldi, they repeatedly fret over the absence of a constitutional complaint mechanism, whereby citizens can challenge the government’s enforcement of a law as infringing on their constitutional rights. At risk of oversimplifying, in the United States a citizen does not need to show that a law itself is unconstitutional for it to have been applied in a way that hinders their rights. For instance, police departments erected according to a state statute do not violate any constitutional provisions, but the ways in which police officers enforce crimes can (and often do) trample on individual rights. A citizen can, at least in theory, challenge the policy of the department or actions of an officer on constitutional grounds without needing to demonstrate that the existence of the department or the specific law they were enforcing is unconstitutional. Indonesians have no such ability before the MK despite robust rights guarantees in the Indonesian Constitution.

Even more troubling is a jurisdictional glitch between different "levels" of law and between the MK and the MA.

As with much of Indonesia governance, courts adhere to a rigid hierarchy of law. They are as follows:

  1. The Constitution
  2. Decisions by the MPR
  3. Laws passed by the legislature, or DPR (national statutes)
  4. Regulations in lieu of law (executive order; equal to statute, but subject to later DPR approval)
  5. Ministry/agency regulations
  6. Presidential regulations
  7. Provincial regulations (state laws)
  8. City/regent regulations (municipal and county laws)

The glitch emerges because the MK is only granted authority to review laws against the Constitution, where law is defined as a national statute. Looking back at the hierarchy, that means only 3 and 4 are subject to judicial review against the Constitution.

The first gap this creates is theoretical, but it could upend Indonesian democracy if the right pieces fell into place. To understand it requires, of course, a touch of history. During and before the Era Reformasi, all legislative power technically resided in the MPR. In a crude form semi-parliamentarism, the MPR elected the president and issued “decisions” for the DPR to then fashion into statutes. As modern dictatorships usually operate, a portion of MPR seats were reserved for the military, and the rest belonged to “democratically” elected members, which were always split between the Golkar party and a handful of sanctioned opposition parties. President Suharto controlled the military and varied between Golkar party head and puppet-master, leaving the MPR an extension of Suharto’s New Order regime.

When Suharto was finally pushed out, Reformasi leaders began a four year process of amending the Constitution, which produced the current Constitution. During that time, the MPR was the vehicle of reform, but the regular order of governing still required the MPR to render decisions while the amendment process unfolded. By the time the MPR’s constitutional powers were revised, there was a body of law consisting of MPR decisions from the Suharto era plus the four reform years.

This body of law is essentially untouchable because the MK does not have jurisdiction to review it, the modern DPR cannot alter it, and the MPR (now a joint sitting of the DPR and the Indonesian senate, the DPD) lacks constitutional authority to erase it. Fortunately, during the Reformasi, the MPR reviewed the Suharto era decisions and largely, but not completely, overturned them. However, it is widely speculated that the method the MPR used was unconstitutional, but since even that review process is protected by this constitutional glitch, there is no legal way to reach a final conclusion on that question. Moreover, there is political consensus to let that sleeping dog lie. Mostly.

While this jurisdictional paradox has been well documented, I have not seen any scholarship addressing what could happen if the MPR were to regain its decision-making ability. The threat is quite real. Two-time presidential candidate Prabowo Subianto openly campaigned on the “excesses” of democracy, vowing to return the MPR to its original power by amending the Constitution. Prabowo is suspected of human rights abuses and the kidnapping of anti-Suharto activists during the New Order, and he is no fringe candidate: in 2014 he nearly defeated the current president, Jokowi, and in 2019 he was again nominated by a coalition of parties to challenge the incumbent Jokowi. Following a stunning display of broken party politics, Prabowo was appointed defense minister by Jokowi in exchange for several parties in Prabowo’s coalition to join Jokowi’s governing coalition in the DPR. As a former son-in-law to Suharto, he enjoys ongoing support among the military and some hardline Muslim clerics, and he very well could run for the open presidency in 2024. Even if Prabowo chooses the sidelines, adventuresome young authoritarians are not hard to come by these days, whether in Jakarta or Washington.

This is a threat to democracy, but it is also a constitutional concern because if the MPR were to regain its prior authority, the government would not need to abolish the MK to avoid constitutional review, a move that might otherwise trigger public alarm bells. Given how steep the competition is for a DPR majority, it is unclear how a president and party could assemble the coalition needed to amend the Constitution since sitting members of the legislature would be voting to remove their own authority, but in a democracy as young and fragile as this, once one is asking these sorts of questions it is probably too late.

The second gap is a live issue. All sources of law below executive orders, referred to as regulations, cannot be reviewed by the MK. Instead, they must be reviewed against the statute from which they draw their authority. For example, in the American context, if the Environmental Protection Agency issued a regulation that unjustly restricted Native American land use, a challenge to that regulation would have to be reviewed against its enabling legislation, the National Environmental Protection Act. While that act almost certainly does not provide for discriminatory regulations, it also probably does not include specific statutory language that prohibits constitutional violations. The result is that, in Indonesia, a regulation is as valid as the law that allows for its promulgation. And in modern democracies, the vast majority of government-citizen interactions comes from agency actions, not national legislation.

The problem gets worse. Presidential regulations, which are derived from DPR legislation granting specific responsibilities to the office of the president, fly under the radar as well. As do provincial and local regulations, since, unlike an American state, they are all statutorily based in national law. Such regulations are not a perfect comparison to state law, since the Indonesian national government creates most substantive law, but the potential for constitutional abuse are obvious, and the closer authorities reside to real citizens, the higher the chances for violation become.

To add to the distress, because these regulations are being reviewed against a law, the MA must handle these cases, creating what scholars have referred to as judicial review dualism. And because the MA reviews laws in the civil tradition, it does not produce a body of jurisprudence that can then be applied to similar regulatory cases. This is especially troubling because the fifty-person MA does not hear cases as a full body, meaning that not only is each case decided in a jurisprudential vacuum, they are also often heard by completely different judges. The result is a disjointed and byzantine set of legal decisions, none of which are necessarily binding outside of the facts of a particular case.

This dualism creates a significant procedural hurdle as well. Citizens must pursue two cases concurrently, one claiming that the regulation violates the law, the second claiming that the enabling law is itself unconstitutional. To do this, petitioners must submit two separate claims in two different judicial systems, which is costly, daunting, and required if the claimant wants to be able to resolve either claim. Because the MK requires that all other sources of relief be sought before bringing a constitutional review case before it, litigants must seek their remedy before the general courts first. If they are able to appeal the case through to the MA, the MA will then withhold their ruling until the law against which they, the MA, is reviewing the regulation is determined to be constitutional or not. The MK will then make their ruling on its validity (assuming it is not dismissed for a different procedural issue), and then the MA will either review the regulation against the law or find that the regulation is no longer in force. To say this creates a barrier to justice is an understatement.

Calls to amend the MK’s jurisdiction are growing, and several MK justices and clerks have written about the need for reform. One concern, echoing the past administrative handoff from the government to the MA, is the deluge of cases the MK would be responsible for their jurisdiction were expanded to regulatory disputes. It is feared such enlargement, coupled with additional demands for a constitutional complaint mechanism, could break the MK’s docket if the DPR failed to supplement with added funding and staff. When considering the DPR’s lack of support for the KPU, hesitancy among some jurists is understandable.

Working for the Constitutional Court

As mentioned, I am engaged in research on Indonesian election law and their electoral system. I plan to write more on it here later, but between my research and supporting the clerks with various judicial tasks, it’s been a fascinating window into how the system actually works.

I haven't yet asked to take a picture with Justice Saldi, but here is his court portrait in his judicial dress.I meet regularly with Justice Saldi in his chambers, and we begin with his battery of questions on American politics and law, always in short, direct sentences. Adjectives are rare; adverbs absent. It’s partly the language barrier – he’s embarrassed about his English, though I’ve never heard him misspeak – but it’s partly a method. Without stereotyping, Indonesians are very expressive speakers, especially to foreigners. Ordinarily a jocular man, Saldi doesn’t do this when questioning me: his eyes say little and he listens with his whole face.

One recent meeting began with him pausing a YouTube video of Justices Antonin Scalia and Stephen Breyer speaking at Mount Olympus (Harvard). Mr. Faiz, his main clerk, sits quietly across from me at the long table where we eat, discuss, and plan. Saldi glides across the room, shoeless. He’s neither tall nor short, but he’s lean and nimble. Saldi returns home to his native Padang every Friday to play badminton with students and professors at Andalas University, his alma mater where he taught constitutional law and helped found the Center for Constitutional Studies (PUSaKO). To my knowledge he’s never been to Morton’s.

“I met him. Breyer.”

I smile. Saldi’s demeanor actually reminds me of Breyer. I tell him so. He doesn’t know what to make of that. I tell him I thought Breyer was a thoughtful and kind man. That makes him smile back.

“Scalia was a good writer.”

I nod in agreement.

“You like Scalia?”

A beat. “I thought he was a good writer.” He smiles at that too.

“Kamala will be the next president, yeah?”

I grin, frown, and grown at the same time.

“Biden will run then?”

“That is the assumption, yes.”

“Is he not too old?” The Indonesian Constitution includes a provision that the president be “physically and mentally capable” of performing presidential duties. It’s never been tested legally, but it’s routinely referenced in political culture.

I laugh again. “A lot of that is overhyped, but he is certainly older. The oldest one in fact. The second oldest was Trump.”

Trump. In my experience its Indonesians’ favorite topic that they think I don’t want to talk about.

“Those…” He pauses to translate the Bahasa in his head. “Hearings?”

“About January 6?”

“Yes. Those are bad for Trump.” It’s half declarative, half interrogative. He gets it.

I hesitate. “I think so. They are very troubling. I hope Americans are listening.”

He gives me nothing. He wants an answer, and he knows I’m dodging.

I look at him for a moment and sigh. “I think he’d be Suharto if we let him.”

That does it. He raises his brow and leans back in his chair. “Not good,” he says. “I think he and Biden should both agree to not run and allow new people to come forward.” It’s the type of thing that could actually happen in Indonesia’s transactional politics. I’ve yet to convince anyone of just how bad the situation is in the States.

I tell him I would take that deal in a heartbeat. He laughs.

“You told me last meeting you had a president that became a chief justice.”

“Yes, William Howard Taft.”

“Could never happen here.” I ask why. “Presidents don’t want to become judges.” He motions to his bookshelf. Center stage is a massive two-volume set you could kill someone with. It’s a single opinion written in response to then-candidate Prabowo’s attempt to overturn the 2019 election. The majority ruled against him, but it wasn’t unanimous.

“In Indonesia,” he says, “judges want to become president.”   

The questioning is over. Judge Saldi is replaced by Professor Saldi, with warm eyes and easy laughs. We turn to work.

Mr. Faiz comes to life and begins explaining what we need to do. He fulfills the function of a clerk, but the term is slightly misleading. He’s technically a “researcher,” but researchers work directly with an assigned justice, present their views, and write draft opinions. They differ from their American counterpart because they’re civil service employees in a permanent job. Faiz has served as a clerk since 2017, beginning as a junior researcher and inched his way up to senior researcher. He’s worked in different chambers, but he’s landed with Saldi and seems to enjoy the position. While I’d rather not be before an Indonesian court, its comforting to know generational decisions aren’t written by twenty-something-year-olds plucked from fourteen schools in a papal-like process with significant signing bonuses on the other end of their twelve month tenure.    

Indonesian clerks are also granted considerable liberty to publish and critique the court and its decisions. Faiz has written extensively about the need for reform, often with Saldi joining. Justices aren’t allowed to ridicule MK opinions, but the structure and function are fair game, and clerks have an even longer leash. It’s a far cry from the fealty expected of U.S. clerks who owe their position and future not to the court but to the justice who hired them.

Faiz has been indispensable in his knowledge and support as I navigate a novel legal system without the benefits of Westlaw or Lexis (or even Bloomberg!). As mentioned, the MK publishes cases on their website, and it includes a search function to generate the necessary PDFs, but that’s the extent of it. Some days I fantasize about the State Department forgoing one arms deal and contracting Thomas Reuters to map the Indonesian casefiles and call it Eastlaw. It’s the least we could do given the coup we definitely didn’t instigate.

At any rate, it’s been an adventure. Explaining Dobbs to Saldi, Faiz, and the rest of the court crew tomorrow is going to be a doozy. Histories and traditions abound.