For decades, Indonesia's 1945 Constitution, the second shortest in the modern world, was used as an apologia by successive authoritarian regimes. A bare-bones text originally intended as a temporary measure, it did little beyond establish basic state organs, including a powerful presidency. It did not offer citizens real guarantees or protections. These weaknesses were ruthlessly exploited by the military-backed regime that President Soeharto headed from 1966 until his fall in 1998. The (first ever) amendments to the Constitution, which began the following year and were completed in 2002, changed all this. Enlarging and rethinking the Constitution, they ushered in a liberal democratic system based around human rights, an open society and separation of powers. These reforms also created a Constitutional Court that has provided Indonesia's first judicial forum for serious debate on the interpretation and application of the Constitution, as well as its first significant and easily-accessible body of detailed and reasoned judgments. Today, Indonesian constitutional law is rich, sophisticated and complex. This book surveys this remarkable constitutional transition, assessing the implementation of Indonesia's new constitutional model and identifying its weaknesses. After covering key institutions exercising executive, legislative and judicial powers, the book focuses on current constitutional debates, ranging from human rights to decentralisation, religious freedom and control of the economy.
Simon Butt is Senior Lecturer at Sydney Law School. Tim Lindsey is Malcolm Smith Professor of Asian Law and Director of the Asian Law Centre and the Centre for Islamic Law and Society at the University of Melbourne.
1 Indonesia's Constitutions Introduction Integralism in Indonesian Constitutional Thought The Pancasila The Pancasila and Integralism The Persistence of Liberal Democratic Ideas: Law as Memory 1 Dismantling Integralism Conclusion Selected Reading 2 The Presidency Introduction The Constitution and the Presidency under the New Order Amendment of Constitutional Provisions Relating to the President Presidential Powers under the Amended Constitution The Presidential Advisory Council The Cabinet and Ministers Replacement of the President Impeachment and Dismissal Conclusion Selected Reading 3 National Legislatures, Representative Assemblies and Elections Introduction The Reconstruction of Indonesia's Legislative System The Indonesian Legislative System Today General Elections The Constitutional Court's Candidacy and Electoral Jurisprudence General Electoral Commission Conclusion Selected Reading 4 Judicial Power Introduction The Lower Courts Special Courts Within the General Courts The Supreme Court Judicial Appointments and Tenure Judicial Reform The Judicial Commission The Ombudsman Conclusion Selected Reading 5 The Constitutional Court and its Jurisdiction Powers of the Constitutional Court The Constitutional Court's Composition Judicial Review Disputed Returns and Election-Related Jurisdiction Expanding its Own Jurisdiction 2011 Amendments to the Constitutional Court Law The Court Strikes Back Conclusion Selected Reading 6 Decentralisation Introduction Background Regional Government Institutions Regional Government Jurisdictions Avenues for Central Government Control? Jurisdictional Dispute Resolution Creating New Regions Special Autonomy Conclusion Selected Reading 7 Human Rights Introduction National Human Rights Commission (Komnas HAM) Part I: Express Constitutional Rights Part II: Implied Rights and the Negara hukum Part III: Obligations Conclusion Selected Reading 8 Religion, Pluralism and Pancasila Introduction The Religious Courts Case Polygamy Case The Preamble: Islam, the Pancasila and the Jakarta Charter Guarantees of Religious Freedom: Articles 29, 28E and 28I Article 28J: Restrictions on Freedom of Religion Recognition of 'Beliefs' (Kepercayaan) Conclusion Selected Reading 9 Article 33 and Economic Democracy Introduction 'State Control' Article 33(4): Principles of the National Economy Conclusion Selected Reading International Constitutional Provisions National Legislation Other National Regulations and Subordinate Laws National Decrees Subnational Regulations Table of Cases and Decisions Constitutional Court Decisions Other Decisions Bibliography