Constitutional Dialogue in the Indonesia Election Law: Tension

between the Indonesian Constitutional Court and the Legislature

Radian Salman, and Rosa Ristawati

Faculty of Law, Universitas Airlangga, Indonesia

Keywords: Election, Judicial Review, Constitutional Court, Constitutional Dialogue.

Abstract: This paper elaborates the Indonesian Constitutional Court’s competences on specific issue of judicial review

on the Election Law and dispute settlement of election in Indonesia. It is addressed to examine relationship

between the Constitutional Court of the Republic of Indonesia and the Legislative branch on the issue of the

Election Law. The Indonesian Constitution (the Amendment) determines two important election issues, first

is the type of elections, namely the legislative election and the presidential election. Other issues is the

institutional arrangements of election and the principles of electoral administration. The Constitution gives

the legislature the power to make election law regulating the election agencies, the election systems, the

election processes and dispute settlement of the election results. With regard to the democracy, election Law

is the authority of the election agencies. However, the power to make election Law has to be check by the

Court. This paper indicates that the Indonesian Constitutional Court is an active-progressive court in dealing

with Election Law. Therefore, the Court tends to be very decisive in its decisions. While handing down strong

decisions to uphold important constitutional principles could bring great benefits to citizens, the Court is eager

to strengthen support for democracy. On the other hand, the role of the Court on special issue of judicial

review tends to encroach on the territory of the Legislative. This paper end up with the proposal of a new

approach for Indonesian Constitutional Court on the issue of Election Law. It is argued that the Court has to

prevent the characters as an “activist”, “decisive” and “reactive”. The Court has to conduct constitutional

dialogue with the Legislature specifically on the constitutional meaning in term of election.

1 INTRODUCTION

The Indonesian Constitution (the Amendment)

implies three aspects of general election, namely the

type of elections, the general election organizer, and

dispute settlement of general election. On the type of

elections, Article 22 E Section (2) stipulates that the

general election is for electing the House of

Representative member, Regional Representative

Council member, the president and the vice

president, and the House of Representative at local

level. On the head of local government, Article 18

Section (4) clarifies that the Governor, Regent, Mayor

is democratically elected. On the general election

organizer, the Indonesian Constitution confirmed that

the general election is organized by a general election

commision. Furthermore, with regards to the dispute

settlement of general election, Article 24 Section (1)

confirmed that one of the competences of the

Indonesian Constitutional Court is dispute settlement

of the general election result. To this extent, issues on

election law, namely on the general election system,

the general election procedures, and the dispute

settlement on the general election process are issues

which is delegated and futher regulated on Law. It has

the meaning that the law maker has the competences

to decide the design of general election system,

electoral proccess and dispute settlement regarding to

the process or procedural of the general election. In

this context, the law maker has broad power to decide

the election law in Indonesia.

On the other hands, the law making power has to

be balance by the judicial power, specifically the

Constitutional Court in term of judicial review on

Law including the Law on general election and other

laws relevance to the institutional arrangement as

well as the Law relevance to the electoral process.

Judicial review has its roots on the principle of

constitutional supremacy and constitutionalism.

From the constitutional supremacy perspective, any

Law under the Constitution shall not be contradictory

to the Constitution. Therefore, there should be a

156

Salman, R. and Ristawati, R.

Constitutional Dialogue in the Indonesia Election Law: Tension between the Indonesian Constitutional Court and the Legislature.

DOI: 10.5220/0010052701560162

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 156-162

ISBN: 978-989-758-482-4

mechanism to review the constitutionality of a law

(the constitutionality of legislation). In

constitutionalism perspective, the limitation of power

is imposed. The limitation means that the absence of

control mechanism on the legislature tends to abuse

of power. The situation could contribute the

possibility of law making in contrary to the norms of

the Constitution (Marzuki, 2010). On the other issues,

the constitutionalism also means the recognitions of

the human rights which have consequences for the

enforcement of those rights by an independent

judiciary, including the protection from existence of

Laws that could harm human rights. Although

judicial review stands on the principle of

constitutional supremacy and constitutionalism, in a

constitutional democracy state, the judicial review

always raises normative question of two things;

namely institutional legitimacy and how these

institutions should be run. Furthermore, in the context

of constitutional democracy, the judicial review has

placed the Constitutional Court as a superior

institution in control relations of the branches of

legislative and executive power. At the national

level, views and concerns arise as a response to some

of the Indonesian Constitutional Court decisions in

judicial review cases on electoral law such as:

Decision No. 22-24/PUU-VI/2008 on the issue of

majority vote in Electoral Constituencies

(Proportional Representation List). Decision No.

102/PUU-VII/2009: Decision contains norm-making

(directive) as in popular case of "the used of ID cards

in the Presidential Election". In fact that the context

of the constitutional court competence on the dispute

settlement on the general election result encourages

the Constitutional Court to act beyond its

competences by deciding the disqualification of one

of the head of local government candidate as it was

decided on the Courrt Decision No. 45/PHPU.D-

VIII/2010. On the dispute settlement of the election

result, the Constitutional Court decides the final result

of the candidates votes as on such case, the

Constitutional Court decides to disqualify the

candidate.

Such decisions generates fundamental problems

concerning on the proper role of judiciary in the

context of the framework of the institutional

relationship within the constitutional law system, in

accordance to the principle of separation of powers,

particularly the authority of the Court in conducting a

proportional judicial review in democracy. The

strengthening of the judiciary branch brings

consequences to the development of the role of

judicial power to conduct further justice that

overstepping powers and authorities, which has been

the political domain of the executive power and

legislative power (Koopmans, 2003). To response

such phenomenon, the German law Journal (2007) ,

in particular publishes a controversial provocative

issues, namely the coup on the courtroom (coup de'tat

in the courtroom), with the main article from Alec

Stone Sweet, describing the phenomenon of

widespread and more powerful judiciary. Meanwhile,

Hirschl (2004) describes such phenomon as

"juristochracy," and Schepelle calls it as a

'courtocracy' where in different countries, the

constitutional reform has transformed the power of

the representative bodies to the judicial institution by

the recognition of human rights in the Constitution

and the mechanism of judicial review. The

transformation in this case, has the meaning that the

important public policies which originally was in the

hands of the elected-agencies and made on the basis

of consensus or majority decision was to be switched

to the judiciary (Bugarij, 2001; Bell, 1983). Such

transformation was also shifting the concept of

democracy, from the 'majority rule' to the 'real-

democracy', namely, the constitutional democracy as

a shift of the "democracy governed predominantly by

the principle of parliamentary sovereignty" (Hirschl,

2004).

For such purpose, this article analyse the

institutional relation between the Constitutional

Court and the Law Maker and its implication to the

development of the election law in Indonesia. This

article also offers constitutional dialogue method on

the development of the election law.

2 JUDICIAL REVIEW OF

LEGISLATION ON ELECTION

LAW

The Judicial review by the Constitutional court which

refers to the Constitution is a constitutional

adjudication activity. The constitutional adjudication

in principle is how the court could work on the

Constitution. In different words, the adjudication is

on how the justice decides or has to decide cases on

the constitutional adjudication. In this context is the

issue of theory of judging. As the interpretation is

about an inherent activity on the judicial review, the

basic question on such constitutional interpretation is

that how the Constitution has to be interpreted. In

other words, the judicial review is not a matter of

assessing whether or not chapters, articles, or sections

in the Law are in accordance to the Constitution. The

judicial review is even more about implemented the

Constitutional Dialogue in the Indonesia Election Law: Tension between the Indonesian Constitutional Court and the Legislature

157

constitutional norms once the Justice decides the

meaning of constitutional norm. Threfore, the judicial

review has dimentions of interpretation on reviewed

Law, which is in practice known as statutory

interpretation, and the constitutional interpretation as

tool to review the Law. On the later dimension, the

judicial review is not only giving interpretation of the

constitutional text, but also how the constitutional

interpretation is implemented on the reviewed Law.

To this extent, the judicial review against the Law is

very often on the area of both activities of

interpretation and construction (Barnett, 2011).

On the second activity, it indicates that the

Constitution has always to be interpreted. There are

some reasons on this point. First, because the

Constitution has the characters of lasting, inclusive,

principled, and fundamental (Pitkin, 1987), therefore

the substance in the Constitution is on the basic aspect

and fundamental principles. The consequences of the

basic and fundamental principles in the Constitution

is that it needs further regulations which has to be

available because of the Constitution say or because

of the urgency of regulation which delegates to the

Law as inferior to the Constitution. On this point, the

Constitution has to be interpreted to make sure that

the Law as delegated is not contradictive to the

Constitution. Secondly, the used of language on the

Constitution has the characters of open texture.

Therefore, the meaning is often not single in term of

interpretation or construction. For example on the

general election context on the Indonesian

Constitution has the term “ democratically elected”,

“direct, general, and free, secret, honest and equal” as

principle of election. Interpretation of such words or

phrase or sentences on the Constitution depends on

the subject who do interpretation as well as the

approach which they may use. Textually, such kind

things would not be interpreted when it has no

conflict. On the constitutional adjudication, Justice

Hughes states that ‘a constitution is without meaning

until the judges pour meaning into its provisions’.

(Motala & Cyril Ramaphosa, 2003)

Third, the

Constitution making depends on the moment and

specific context. Consequently, the interpretation of

the Constitution is not the same as when it was made

and when it is developed. If the interpretation of the

Constitution has fix meaning, it needs to be

contructed once it is implemented in the judicial

review. Such third argument delivered interpretation

into two perspectives, namely orginalism dan non-

originalism.

In the context of election Law, regularly, every 4

or 5 years, the election Law could be changed. After

the first Amendment of the Indonesian Constitution

on 1999, the election law has been changed from

1999, 2008, 2013 dan 2018. From all changes there

are two significant aspects in term of institutional

power. First, the frequency of periodic changes is not

a matter of a sign that regular elections are started but

the law maker, the DPR is very powerful on

determine the substances of election law in term of

system, mechanism, and dispute settlement. Second,

after the establishement of the Constitutional Court,

the Court decisions has significantly contributed to

the development of election law. The cases below

will show us about approaches that Justices of

constitutional court argue concerning election law:

1. Case No 22 – 24/PUU – VI/2008

On the determination of the elected candidate in

the DPR, the DPD, dan the DPRD election, the

Court decision has significant impact according to

the case No 22 – 24/PUU – VI/2008. One of the

review on such case is the review on Article 214

a, b, c, d, dan e Law No. 10 Tahun 2008 on the

DPR, DPD, and DPRD election which has the

point to determine the elected candidate who gets

about 30% votes from the BPP, or below when no

one gets 30% from the BPP, or below when no

one gets 30% from the BPP more than

proportional votes for a political party participate

in the election. The Constitutional Court argues

that Article 22E ayat (1) UUD 1945 stipulates that

the election is conducted with broad participation

from people on the basis of democracy principle,

direct, general, free, secret ballot, honest, and fair.

The election of the DPR, the DPD, and the local

DPRD with the proportional system according to

Law No. 10/2008 gives more freedom to the

people in determining legislative candidate. The

Constitutional Court argues the consequences

would be easier to determine who is elected and

the legislative candidate who gets vote or more

support from the people. To this extent, Article

214a, b, c, d, and e the Law No 10/2008 is

contradictive to the Constitution. Therefore it is

decided unconstitutional.

2. Case No. 102/PUU-VII/2009

On the popular case of the usage of identity card,

the Court decided that Article 28 and Article 111

the Law No 42/2008 on the presidential election

is constitutional. The Court made legal norm on

the right to vote for those who is unlisted on the

fixed voter listed (Daftar Pemilih Tetap/DPT).

The formulation of regulation on who and how the

the voting right is implemented for the unlisted

voter is a form of law making process by the

Court. Although the regulation is just an order to

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the general election commission to make

regulation on the unlisted voter which have been

unregistered in the voter list.

3. Case No. 45/PHPU.D-VIII/2010

In general, the decision on the dispute settlement

on the result of general election, including the

election of head of local government is about the

final result of the election. Commonly, the

decision is to determine the voting result or in case

of general election violation. The Court could

order the reelection. Notwithstanding, the Court

decision on the case of Kotawaringin Barat would

be different from other cases in term that the Court

was not only disqualifying the candidates but also

to order general election commission to decide the

mayor and vice mayor is elected.

The Court contribution in election system is not

only from its decision but also in the context of

dispute settlement of the election result, specifically

on the head of local government election. On the case

of head of local government elections, the object

(objectum litis) is the result of the calculation process

as it is regulated on Article 106 Section (2) the local

government Law, which state that “ any objections as

mention in Section (1) is only in terms of the result of

votes calculation which influence the elected

candidate.” Notwithstanding when the constitutional

court conducts trial and decide the dispute settlement

of the result of Eeast Java head of local government,

the Court was not only deciding the dispute

settlement with regards to the vote calculation, but

also conduct trial on the violation which significantly

influenced on the result of vote calculation. On its

consideration on Decision No 41/PHPU.D-VI/2008

on the dispute settlement of the election result of the

Eat Java head of local government, the Court

conducted judicial review on Article 106 Section (2)

of the Law on the local government against the

Constitution. The output of the judicial review is the

interpretation of Article 106 Section (2) the local

government Law. In such case, the case was actually

not about judicial review but on the dispute settlement

of the election result. The judicial review which

conducted by the Court was a pseudo judicial review.

In 2010, when the court decided case No 45/PHPU.D-

VIII/2010 on the dispute settlement of the head of

local government of Municipality Kotawaringin

Barat and other cases, the Court has the same

argument to conduct not only dispute settlement on

the election results, but also violation which

structured, sistematically, and has significant impact

to the votes.

On some arguments, the Court in the context of

judicial review and the dispute settlement of the

election results and response implication to the law

maker, could be implied that the judicial review, the

relationship between the Court and the law maker is

representative of two tension which has dichotomy

character, namely constitutionalism and democracy

with the single question on who the supreme power

on upholding the Constitution (Van Hoecke : 2001).

In some perspectives, the Constitutional Court is

assumed to be beyond its competences. The

Constitutional Court has tendency to be more

activism. The response against such perspective could

be seen in the amendment of the Constitutional Court

Law (Law No. 8 Year 2011). On Article 57 Paragraph

2 (a) of the Law, it is stipulated that in order to limit

the model of the Court decision, the Court Decision

has to be not in the form of ultra petita. Furthermore,

the Court’s Decision has not to be made as norms

since the DPR is the law maker.

On the constitutional perspective, with one of the

characters that the guaranteee and the protection of

human rights, the Court is the guardian to the

constitutional rights of citizens by make sure that Law

is not contradictive to the constitutional norms and

against the constitutional rights.On the other hands,

the representative bodies with the legislative function

is a institution which is elected by the people within

the democratic representative system who has the

authority to determine the public policies. The

product of such institution is Law. The judicial review

which is conducted by the Court is according to the

mechanism of ‘counter majoritarian’ since the Court

in this term annuls Law which had been made on the

basis of majority agreement within the representative

body. In the context of presidentialism, the President

of Republic Indonesia is elected by the people is also

an institution which has the competence as law

maker. Therefore, the judicial review by the Court is

not only as a mechanism of ‘counter-majoritarian’

against the representative body, but also agaisnt the

executive power of the President.

According to democracy perspective, there are

arguments which identified that the judicial review is

against the democracy principle and vice versa.

(Bickel, 1986; Waldron, 2003; Kramer: 2007).

Moreover, on the issue of people soverignty in the

general election as the instrument of the democracy,

in democracy principle (demos and kratia), the

definition of government from and by the people has

the meaning of “rule of the people” which fully

influenced and controlled by the people. Such

concept contains basic idea that the people has the

supreme power to direct within the public domain and

Constitutional Dialogue in the Indonesia Election Law: Tension between the Indonesian Constitutional Court and the Legislature

159

that is being the basic concept which is called

‘responsive rule’or ‘popular rule’, ‘popular

government’ or ‘populer sovereignty’ or people

sovereignty which strictly mentioned in the

Constitution. as a consequence of the people

sovereignty principle, the majority of citizens who

participate in the general election have to hold the

basic power for any policies decisions in the

representative government system (Zurn, 2007;

Hardiman, 2013) . On the concept of people

sovereignty which is identically as the democracy

principle, the judicial institution reviews the

constitutionality of the Law is assumed to be

contradictive to the democracy since the law maker

has more legitimacy and participatory characters than

the judicial institution.

Bickel argues that the prior argument to such

objection for this mechanism of judcial review is

because the argument of ‘counter majoritarian

difficulty’ (Bickel: 1986), meanwhile, a German

Jurist, Schmitt states that the objection of judicial

review is beacuse the fear of the consequence which

is called judicialization of politic and the judicial

institution which tend to have more politic character

rather than judicial character (Boix and Stokes, 2013

). Marmor, argues that the judicial review is not easy

to adjust with the democracy principle since the

commitment against the procedural decision making

on the democracy and judicial power on the

annulment of the legislative decision which has been

elected by the people. (Marmor: 2005). The argument

which mentioned that the judicial review mechanism

is not against the democracy, is argued by Eisgruber

(Eisgruber, 2006) . Accordingly, the judicial review

gains justification in the democracy principle, namely

that the judcial institution upholds democracy values.

Dworkin on his work (Dworkin, 1990) “Bill of Rights

for Britain”, states that the judicial review is needed

since democracy has to be protected from the

majority tyranny. Siahaan (2010), on the same

context as Dworkin, states:

“It is true that the duties to review the

constitutionality of Laws is better to be separately

attached to the law maker (the legislative and the

executive). The internal review (legislative review

atau executive review) is assumed has subjective

character.”

Besides democracy arguments, the debate on the

judicial review is also based on the argument of the

separation of powers which implemented in the form

of separation and division of powers. The separation

of powers is by power limits power on the basis of

different function of power. To this extent,

eventhough there are arguments mentioning that the

judicial review is about check and balances against

legislative products, and conducted by the

independent and impartial power, it does not mean

that it could be justified to be taken over by the

judicial institution. Grabenwater (2011), Austrian

Constitutional Court Justice, on his keynote speech

on 2nd Congress of the World Conference on

Constitutional Justice, stated that:

“The constitutional judge who respects the

separation of powers between legislation and the

judicial control of legislation will take due account of

the margin of appreciation, of political questions and

of the democratic legitimacy of decisions of

Parliament.”

3 CONSTITUTIONAL

DIALOGUE AND

PROPORTIONAL ROLE OF

CONSTITUTIONAL COURT

The relationship between the Constitutional Court

and the law maker in the context of the electoral law

making could be seen within the constitutional

Dialague. Constitutional dialogue is about descriptive

concept and normative concept (Dawson, 2013) . The

descriptive concept of constitutional dialogue refers

to the practice of interaction and deliberation between

legislature and the judiciary over how constitutional

commitment should be applied, whereas, in

normative concept, constitutional dialogue is more

than an observation but a means of defending judicial

review (Grabenwater, 2011). Refering tp the three

decisions on the electoral law, the Court seemingly

applied “judicial activism”. It has the meaning that on

the constitutional dialogue framework between the

law maker and the constitutioal court in term of

judicial review shows the domination that the Court

has judiciary supremacy. In general, Butt (2006)

considers that the Indonesian Constitutional Court

could be categorized as adherents of judicial activism

under the first two periods of court leadership.

Furthermore, Butt refers the Court’s activism to

South Korean Constitutional Court. According to his

perspectives, there are two aspects that could indicate

judicial activism, namely the first "active in the sense

that it actually performs its function and invalidates

statutory provisions - or even entire statutes.-as it

deems necessary ". Secondly, it is shown from the

consistency of "rejection of legislative attepts to

restrict what it believes to be its constitutionally

mandated constitutional review of jurisdiction and its

theories at its boundaries of its jurisdiction".

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Referring to the opinion of the Butt, the issue of

judicial activism and the restriction of the judiciary

must depart from the concept of originalism and non

originalism. Since 1990 the term "judicial activism"

and "judicial activist" has been discussed in 3,815

articles and reviews in various journals of law.

Judicial activism and judicial restraint, relating to

"how well they realize the judicial role of bridging the

gap between law and society's changing reality and

the role of protecting the constitution and its values

The term judicial activism was first introduced by

Arthur Schlesinger in January 1947 in Fortune

magazine. Black's Law Dictionary defines judicial

activism as follows:

A philosophy of judicial decision-making whereby

judges allow their personal views about public

policy, among other factors, to guide their

decisions, usually with the suggestion that adherents

of this philosophy tend to find constitutional

violations and are willing to ignore precedent.

Justice Barak (2006), defines judicial activism as

follows:

is the judicial tendency — conscious or

unconscious - to achieve the proper balance

between conflicting social values (such as

individual rights against the needs of the

collective, the liberty of one person against

that of another, the authority of one branch

of government against another) through

change in the existing law (invalidating an

unconstitutional statute, invalidating

secondary legislation that conflicts with a

statute, reversing a judicial precedent) or

through creating new law that did not

previously exist (through interpreting the

constitution or legislation, through

developing the common law).

Criticism or a negative view upon judicial

activism is because judges are deemed to use their

judicial discretion contrary to general principles, such

as the principle that judges only exercise the function

of applying laws made by legislators. Conversely the

judge positioned himself to give consideration to the

political, social, and economic policies even replace

the position of legislator. Judges decide cases or legal

disputes so that they do not become policy-makers,

because "Judges are well versed in the law but they

are manifestly not the best equipped" to translate

"community values into constitutional policies ...”.

To this extent, in terms of building an equal

relationship on the constitutional dialogue, the role of

the Constitutional Court in judicial review is needed,

specifically on the issue of election Law for particular

issue of election system. Such mechanism of dialogue

could be achieved by:

First, on the constitutional issues that clearly

delegated entirely to the legislator, which is often

referred to as an open legal policy, the Constitutional

Court should not overstep the legislative-regulatory

zone as a result of the annulment. This means that the

Constitutional Court retains the power to annul, but

the Constitutional Court has no right to regulate

(making law), since the constitution clearly grants the

power to the legislator. If the Constitutional Court is

oriented to make Laws, it is not necessary to make a

decision with a conditional interpretation model or

the formulation of new norms, but the Court may only

provide sufficient guidance on certain constitutional

issues in the consideration of its decision. Moreover,

the lawmakers will refine or make a new law with the

suggestions according to the Court's decision. As a

consequence of the third point, in the decision, the

Constitutional Court shall explicitly submit its

suggestions to the legislator.

Second, as a consequence of the hierarchy of

Laws and the consequences of the separation of

powers, the Constitutional Court’s decisions may not

contain imperative order to lawmakers to enact law

and to make a law with any substances determined by

the Constitutional Court. However, this is different

from the South African Constitutional Court which

indeed in the Constitution authorizes the

Constitutional Court to review the bill so that the

Constitutional Court's decision becomes the basis of

consideration of the substance of the law in the law

making process. Similarly to the South African Court,

the Hungarian Constitutional Court's authority is ex

officio authorized initiating a case in situation of

omission by the legislature. Therefore, its decision

enforce the legislator to apply the decision in the law

making process. The 1945 Constitution has separated

powers to each of power holders, so the order to make

law is directly derived from the Constitution and not

from the Constitutional Court decision. The

Constitutional Court's decision only resulted to be

followed-up, but not an order for the legislator.

Third, the legitimacy process in the separation

power schemes should be part of the Constitutional

Court's procedures. Especially if the judicial review

of the law is a form of deliberative democracy

conducted by the Constitutional Court, then the

principle of all parties’ views and opinions must be

heard shall be actually done. This principle takes

precedence over the legislators, so it is not

appropriate to review legislation without hearing any

statements from the legislator even though by reason

of urgency. In the cases referred to as the use of the

Constitutional Dialogue in the Indonesia Election Law: Tension between the Indonesian Constitutional Court and the Legislature

161

ID cards and in any similar cases such as the use of

the right to vote, without hearing the statements of the

legislator is a violation of the principle of the audi et

altera partem.

4 CONCLUSIONS

The Indonesian Constitutional Court is the Court

which has the character of judicial activism in judicial

review on the Election Law. Such character of

judicial activism, in this sense, empowers the

principles of fair and democratic election in

Indonesia. However, the design of election in

Indonesia is within political area. At this point, the

Indonesian Parliament has the authority to make

Laws in particular issue of elections. In practice, the

Court’s decisions on the judicial review of the

Election Laws is often being resistence from the

Parliament. Therefore, the Court has to make the

decision more proportionally on the basis of the

principle of separation of powers.

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