V. Era Reformasi, The Constitutional Court, and Judicial Independence
Era Reformasi
The Constitutional Court of Indonesia is celebrating its 20th anniversary this year. To explain what this event means, I must give some background on the Court’s special place in Indonesian constitutional reform at the beginning of the 21st century.
Indonesia was governed from 1966 to 1998 under the New Order of General Suharto. Suharto took power following a bloody power struggle that brought down the Guided Democracy of revolutionary father Sukarno and destroyed the Communist Party of Indonesia. Suharto consolidated power by dissolving political parties, neutralizing the opposition through intimidation and corruption, maintaining support of Western powers while remaining officially non-aligned, and engineering favorable legislative election results. There were three allowed political parties. Before constitutional reform, the President was elected by the People’s Consultative Assembly (MPR). Assuming the President could stage elections to stack the MPR with enough of his allies, which he had plenty of tools to do since there was no independent election oversight, then he could get himself re-elected.
One of the keys to Suharto’s grip on power is that economic growth was strong during much of the New Order. Along with the other Association of Southeast Asian Nations (ASEAN) economies, Indonesia experienced a boom in foreign investment from the 70s to 90s, the manufacturing sector grew, the government profited from high prices for oil exports, and the pace of natural resource exploitation accelerated. GDP per capita was growing quickly, although the benefits of growth disproportionately flowed to those with connections to the government.
What was called by optimistic foreign economists the “Asian Economic Miracle” took a dive in 1997. I cannot really explain the causes except to say that a lot of the boom years was ascending on generous foreign credit, that financing was very speculative, and those investors suddenly panicked when the Thai government de-pegged the baht from the US dollar in July 1997. The financial ripples spread quickly, soon the Indonesian rupiah also came unglued, the Jakarta Stock Exchange reached new lows, and the government was failing to shore up confidence and humbling itself for emergency IMF loans.
None of that stopped the MPR from perfunctorily re-electing Suharto as President while this was all unfolding. Student protests started materializing at the beginning of 1998, and four students were killed by at one protest in Trisakti University that May while Suharto was at a summit in Egypt. The police killing resulted in rioting across Jakarta, which spread to other parts of the country, with many taking advantage of the situation to target Chinese-owned businesses.
The government’s response to the unrest was perceived as ineffectual. In some instances, the military was accused of participating in or encouraging rioting. Suharto made a return from his trip abroad to take control of this situation, but his closest allies finally turned against him. The speaker of the House of Representatives (DPR) called for him to resign and the influential leader of the Muhhamadiya religious organization was calling for massive demonstrations. Suharto resigned under pressure, handing the Presidency over to Vice President Habibie.
President Habibie loosened the reigns enough to make an opening for reform, allowing for growth in political parties and a new independent election commission (KPU) to oversee legislative elections in 1999. The MPR ratified the first constitutional amendment in 1999, which dramatically changed the political landscape by providing for the direct election of the President and Vice President to 5-year terms, which could be renewed once. The second amendment, among other things, introduced direct elections for regional governors, established that the government must recognize the customary status of regions, and established articles recognizing human rights.
The Third Amendment established the Constitutional Court. Article 24C of the Constitution gives the
Constitutional Court the power to review laws against the Constitution, adjudicate disputes over the authority of state institutions, dissolve political parties, resolve election result disputes, and recommend impeachment. The Article also describes to composition of the Court: nine justices, three appointed by the President, three by the Supreme Court, and three by the People’s Representative Council (DPR).
The Fourth Amendment abolished something called the Supreme Advisory Council. These reforms were targeted at the abuses of the New Order and sought to strengthen separation of powers, which were hopelessly confused under the New Order and Guided Democracy. The establishment of judicial review by the Constitutional Court was an important constitutional check on the other branches, whereas previously the law and authority of state institutions were constitutional if the legislature, heavily embedded with the executive, and the President in their judgement decided they were constitutional. Human rights protections, which previously did not exist all in the constitution, would be similarly weak if the legislature were left to itself to interpret whether the laws it passed were constitutional. Generally, the legislature believes that all the laws it passes are constitutional.
The Constitutional Court
Last week I had the opportunity to tour some of the different bureaus of the Constitutional Court, meet with staff, and get a feeling for court operations. I met with the Human Resources bureau and discussed the court’s relationship to the executive agencies overseeing the Court’s budget and finances. I also met with the Legal Affairs Bureau, which with a staff of 52 advises the registrar and deputy registrars assigned to each phase of a proceeding, responds to inquiries related to court business not dealing with a particular petition, and prepares the hearing transcripts. I think I talked here last week about a meeting with Information Services.
On Thursday, I was able to attend a hearing on Law. No. 6 of 2023, a re-initiated version of the omnibus Job Creation Law. The proceedings were in bahasa Indonesia, so I struggled to keep up, and I was not able to use my phone as a linguistic aid, but I appreciated getting a feeling for how the court manages proceedings. Unlike our Supreme Court with tables for petitioners and respondents, there are three in the Constitutional Court. One table for the petitioner, one for the DPR, and one for the President.
Outside of these pleasant and very educational meetings, I have mostly been steadily working on my research for the ICCIS symposium deadline.
Judicial Independence
We usually assume that after judges hear arguments and read briefs that they are going to write some kind of opinion. That opinion is going to explain their legal reasoning and at the end of it they are going to issue some kind of order. We should give them clerks, Westlaw licenses, computers, air-conditioned chambers, and so on to help perform this task.
What requires this? It is a provision of some state constitutions outlining judicial power, but there is nothing in Article III of the US Constitution about it, and you can imagine a system where judges just kind of enter orders. Maybe the Supreme Court just says “affirmed” or “reversed.” There has been controversy about this with regards to their emergency/shadow docket. I do not know how a person could assume in that scenario that a judge’s opinion is based on the law as opposed to something else entirely. Maybe they flipped a coin for whether to affirm or reverse.
That would certainly considerably speed up their docket: it would also be cartoonishly arbitrary. It happens from time to time. That vast majority of complaints received by state judicial conduct commissions are dismissed as not bringing any issue other than legal error. State judicial conduct commissions are not a court of appeals and will almost never review abuse of discretion. But they will review failure to exercise discretion.
Still, another frightening question is, “How do you know that a judge was relying on the law even if there is a written opinion?” There could be all kinds of factors and relationships weighing on their decision-making basically external to everything in the briefs, in the record, and on Westlaw. None of those things are likely to appear in the judge’s reasoning. But they could be important. We usually allow them to the extent we trust judges to compartmentalize them.
I think the only way to answer that with satisfaction is to evaluate the judiciary as a system, what internal controls it has, and the relationship of the courts to the other branches. Surely if we had a system where judges were terrified based on their opinions of salary decreases, insecure tenure, the threat of being stripped of staff support and having their chambers moved to a basement cubicle in the post office, or even arbitrary arrest and harassment, then it would be difficult to have much confidence in their decisions. Their decisions would look subservient to the other branches.
On the other hand, even assuming no interference whatsoever from the other branches, how do we know that judges are relying on the law if there are no internal controls of the judiciary? Writing opinions is one internal control of the judiciary: a good practice for many reasons. There are provisions in state codes of judicial conduct that talk about campaign endorsements and party affiliations for America’s mostly elected judges. There are also plenty of things talking about ex parte communications, relationships with parties, using social media, independent research, misusing court resources, and so on. First, how do we know what it looks like to be on “team judiciary”? How do judges know that for themselves? Second, what stops judges from betraying the judiciary?
What the judiciary wants is for us to take seriously that they are committed to the constitutional role of providing fair, impartial, and reasonably speedy adjudication of legal disputes. For constitutional courts, we must trust them to declare our fundamental rights and define the limits of the power of the other branches. They do not create public confidence just by explaining their reasoning in written opinions. Credibility requires both independence and accountability, which you evaluate by looking at the strengths and weaknesses of governance structures and the environment in which judges make decisions.