Constitutional complaint:
A privilege Indonesia’s
democracy should enjoy

Indonesia’s democracy is flourishing more than ever. With a decision to have parliamentary candidates elected by way of majority vote, the Constitutional Court has elevated Indonesia’s democracy to a whole new level.

Sure, this creates a lot of technical confusion, but it is outweighed by the invaluable contribution to democracy it lays.

Majority vote means reducing the political parties’ intervention in the general elections, thereby providing further assurance that the elected members of the parliament truly represent the people.

At this point, Indonesia’s democracy has technically matched that of other more developed countries. The amendments of the 1945 Constitution have made sure the government is established based on democratic principles, i.e. that the government shall be commanded by the will of the people and not have a government that takes away the fundamental rights of the people. In this regard, unfortunately, one crucial element of democracy is still being held back by the Constitution. That element is the constitutional complaint.

A constitutional complaint is generally defined as request made by citizens to the court for adjudication on infringements of their fundamental rights guaranteed by the Constitution, due to the exercise of public power or state action.

The need for the constitutional complaint in Indonesia surfaces in particular due to constitutional rights infringements occurring last year.

According to Report of Freedom of Religion/Belief in Indonesia 2008, issued by the Jakarta-based SETARA Institute on Jan. 13, 2009, there were 367 violations of freedom of religion/belief in 265 incidents in 2008, which included 188 violations involving the state as the actor. 

The incidents peaked in June (103 incidents), most of which were closely related to aggressive actions by certain groups against the Ahmadiyah community, and then between the defenders and opposition to Ahmadiyah’s religious belief rights.

The government’s reaction to these hostilities, i.e. the issuance of a decree banning the sect’s activities and spread, is regarded as creating even more incidents.

Unfortunately for the victims under this survey, there are no direct legal remedies for them to complain about infringements of their religious freedom rights guaranteed by the Constitution.
Another more recent sample of constitutional rights issue is the seizure by the police of sound systems to be used during a pro-Gaza demonstration in Jakarta.

People knew there was a constitutional rights issue in this case, particularly free speech rights under Article 28E(3) of the 1945 Constitution, which says, “Each person has the right to freely associate, assemble and express their opinions,” and strengthened by Article 28F stating, “Each person has the right to… spread information via all kinds of medium available.” It could be classified as a case of infringement through physical state action (seizure).

Regrettably, the lack of direct legal recourse prevents efforts to resolve this type of constitutional rights issue, which in no way can be directly remedied by a mere judicial review.

The availability of the constitutional complaint in the US allows direct perseverance to all types of state action, including seizures, arrests or a mere hanging of a crucifix on public school walls.
Other than the US, with a slight difference in practice, most democratic countries provide for the constitutional complaint within their legal systems.

This includes Germany, Poland, South Korea and Spain. The need for a constitutional complaint brings us way back to John Rawls’ original position theory (John Rawls, 1971). It supposes that a veil of ignorance (causing subjectivity) is lifted and all citizens are returned to their original position, i.e. prior to the making of a social contract to form the state.

In their original position, would Indonesian people including the minorities agree to the formation of a government that takes away their liberty and freedom to exercise their rights agreed upon as the most fundamental and guaranteed by the Constitution? I think not.

Would these people agree to have to go through the wearisome procedure of constitutional review to the Constitutional Court, and then to the Supreme Court, just to assert these constitutionally guaranteed fundamental rights? I think not.

My proposition therefore, is to allow the Constitutional Court to adjudicate the constitutional complaint. After all, one of the main tasks of most constitutional courts in other countries is actually adjudicating constitutional complaints. The obvious way to realize this of course is to amend the 1945 Constitution, which would undoubtedly be a tedious process.

Having said that, one of the justices of the Constitutional Court has interestingly expressed that a constitutional complaint could be commenced if the Constitutional Court makes a dynamic and expansive interpretation of the constitutional rights and legal standing of the petitioner as stipulated in Article 51 of the Law on Constitutional Court (Maruarar Siahaan, 2005).

This would not be the first time the Constitutional Court has extended its authority. The decision to have parliamentary candidates elected by way of a majority vote is actually a dynamic interpretation of its authority from declaring law to be unconstitutional and not binding into making law itself.

The greatest concern over a constitutional complaint is the amount of work it would create for the Constitutional Court.

Nevertheless, this could be mitigated through the adoption of either the German way of exhaustion of other legal remedies prior to filing a constitutional complaint, or more favorably, the US way of giving the court the authority to select, at its own discretion, which cases to adjudicate, preferably based on the constitutional significance of the complaint.

Indeed, the realization of the constitutional complaint in Indonesia could be a long and winding road, yet every step toward it is a worthy effort, for it is one of the pinnacles of democracy.

The writer is studying for his master’s in law at the Cardozo School of Law’s Comparative Legal Thought program in New York, US.

Post Your Say

Selected comments will be published in the Readers’ Forum page of our print newspaper.