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Indonesia: Agreement Reached to Amend Constitutional Court Legislation

(June 20, 2011) On June 15, 2011, it was reported that the Indonesian government had reached an agreement with the country's House of Representatives to amend the legislation that governs the Constitutional Court. (Anita Rachman & Ulma Haryanto, Constitutional Court's Power to Be Limited, JAKARTA GLOBE (June 15, 2011).) According to the Minister of Justice and Human Rights, Patrialis Akbar, the amendments are aimed only at ensuring that the functioning of the Constitutional Court is aligned with its original mandate. (Id.)

Under Law 24/2003 on the Constitutional Court, the Court is able to revoke laws that it finds to be in breach of the Constitution. The view expressed by the Minister is that when the Court annuls provisions or a whole law it should refer the matter to the House of Representatives, in order for the relevant law to be revised, rather than substituting the Court's own ruling to “fill in the blanks” in the legislation. The proposed bill would clarify this matter. (Id.;Dina Indrasafitri, Minister Lauds New Constitutional Court Bill, THE JAKARTA POST (June 14, 2011).)

The amendments would also make it clear that the Court does not have the power to issue verdicts that are ultra petita (i.e., “beyond the request”). This means that the Court “will be forbidden from deciding on a matter it has not been asked to make a decision on.” (Id.)

A further amendment would see the inclusion of a lawmaker and a member of the Judicial Commission on an Honorary Council for the Constitutional Court. The purpose of an Honorary Council is to oversee and inquire into the ethical conduct of officials and judges. The additional members would be included “for balancing purposes, so that there will be no elements of subjectivity regarding problems related to code of conduct,” Patrialis said. (Id.) He also said that disappointment regarding the Honorary Council has become “part of the experiences” that led to the current “improvements.” (Id.)

Former Constitutional Court Chief Justice Jimly Asshiddiqie disagreed with the proposed changes. For example, he stated that the term ultra petita is not applicable to judicial reviews involving constitutional issues, and that “[the Judicial Commission] has no business with [the Constitutional Court]. It oversees courts under the Supreme Court, and the Constitutional Court is not.” (Rachman & Haryanto, supra.)

Other related matters discussed by the government and House of Representatives include the minimum age, selection mechanisms, tenure, and pension age of judges. There have also been discussions on the current role of the Court in supervising elections, with suggestions that this could be devolved to district courts. (Anita Rachman & Camelia Pasandaran, Parties Split on Changes to Constitutional Court Law, JAKARTA GLOBE (May 30, 2011).) Media reports on the agreement reached on the Constitutional Court legislation did not state what amendments the proposed bill might make in these areas.