The Constitutional Court: defender of Constitution or tyrant backer

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Anthony Budiawan
Anthony Budiawan, Managing Director Political Economy and Policy Studies (PEPS)

IO – The Constitutional Court of the Indonesian Republic (MK) was created during the Reformation Period, through a Third Amendment to the 1945 State Constitution in 2001. One of the duties of the MK is to test laws related to the Constitution and confirm such laws do not violate the precepts of the Constitution. 

The MK thus possesses a substantial level of authority, or in other words, absolute. Irrefutable. Just as a classical feudal king’s command, when the Kings were God’s messengers. So is MK. Their decision is final, indisputable, undeniable, either in the first-degree court or Supreme Court. 

But MK is no a state institution charged with making laws. MK is not authorized to create laws, nor are they invested with the power to change or correct a law. The Government and the House of Representatives are the only state bodies creating laws. 

The Constitutional Court (MK) can only frame constitutional matters, try and issue a statement as to whether a law runs contrary to the Constitution. The MK may only state firmly: yes or no (violation). The Constitutional Court is not allowed to interpret subjectively, let alone correct laws— which initially violate the Constitution, to be in a non-violating form. 

Correcting laws would overstep the MK’s constitutional authority, meaning: violating the Constitution. The question then is who would monitor MK should there be any indication of breaching the Constitution? Suppose no institutions are present to watch (MK), and each decision is absolute, then MK itself becomes a potential tyrant or a defender of tyranny, one who determines laws according to its interest and groups. 

As an example, related to a test of Law No 2 of 2020—PERPPU No 1 of 2020 concerning State Financial Policy and Financial System Stability— MK stated the phrase “…not a loss to the state” on Article 27 paragraph 1 to be unconstitutional. Still, the Article was corrected afterward and changed by MK to be constitutional. 

Article 27 paragraph (1) then soon states, “Costs that have been incurred by the Government and/or KSSK member institutions … are not a loss to the state as long as long as an act is carried out in good faith and in accordance with laws and regulations”. 

As stated previously, MK is not the state institution creating the laws; therefore, MK is not entitled to change and correct any. However, MK is allowed to react and provide the feedback needed for laws to be in line with the Constitution. But of course, such feedback is not intended to legalize unconstitutional laws or make them valid and subject to enforcement. 

Unconstitutional laws (and the articles included in the law) must remain stated as unconstitutional. MK is allowed to provide feedback on a Law; the Government and House of Representatives will then write and pass laws and regulations in accordance with Law No. 12 of 2011 (as amended by Law No. 15 of 2019) as currently in effect, through the Draft Law. 

In another article which is also unconstitutional, Article 27 paragraph (3); Mk has added a correcting sentence “…as long as it is related to the handling of the Covid-19 pandemic and carried out in good faith and in accordance with the laws and regulations”, then it would be valid. 

However, the mechanism to validate the unconstitutional laws above must undergo a lawful process regarding forming applicable laws and regulations. If not, then the corrections implemented by MK are not valid, nor is Law No 2 of 2020, Article 27 paragraphs (1) and (3) (PERPPU No 1 of 2020). 

The MK verdict related to the Law of Job Creation is even odder. MK has stated the Law No 11 of 2020 on Job Creation to be formally flawed, but then further released a correction on the Law to be “conditionally unconstitutional” and urged the Law to be reviewed and ameliorated in two years’ time following its verdict; if not, it would be permanently judged as unconstitutional. 

The verdict by MK violates its authority, which is limited to only state whether a law contravenes the Constitution. No law should be under any condition. Any unconstitutional law will be null and void if couched under any conditions as it creates uncertainty towards Indonesian law. Unconstitutional laws are tyrant’s laws, since MK does not annul the articles in the laws against the Constitution. Instead, MK corrected a law by adding correctional sentences to validate it. MK is not permitted to create, change, add or reduce the content of a law. That said, corrections carried out by MK are illegitimate. 

Aside from the legal material test on the Law of Corona and Law of Job Creation (see part 1), public is currently suing Article 222 of Law No. 7 of 2017 (Law of Election) regarding the 20 percent of Presidential Threshold (PT), as it is considered to be contravening the Constitution. 

First, it is considered a violation to limit the rights of citizens to run for the presidency through one or more political parties. Second, such an action also violates the rights of political parties. According to Article 6A paragraph (2) of the Constitution, political parties or coalitions of political parties can nominate presidents without any threshold requirements. 

MK rejected several legal materials on the presidential threshold as not fulfilling formal requirements or a legal standing. The Constitutional Court (MK) assumes that those with legal standing are political parties holding the right to nominate a President or Vice President, or individuals promoted as presidential candidates. 

MK is considered to have disregarded the Constitution and neglected voters’ rights; this also implies ignoring the people’s sovereignty, which lies as the foundation of the Indonesian Constitution. Constitutional rights are inherent in all elements of society, for both presidential candidates and voters. 

The Constitution of 1945, Article 1 paragraph (2) states “Sovereignty is in the hands of the people and is implemented according to this Constitution” and this cannot abrogate the people’s sovereign rights, and these rights must not be usurped by any party, either the DPR or the Constitutional Court. Therefore, as a sovereign people, voters have legal standing to oppose any law which is against the Constitution. 

Second, the main reason for MK to refuse to flatten the presidential threshold to zero is because MK pointed out that 20 percent of a presidential entry is a starting point for presidential candidates, promoted by the political party, suffices. This is considered a failed system, as actual voters and support will show from presidential elections. 

The MK opinion is incorrect, unreasonable, and contrary to the Constitution. Political party support is not the same as popular support. If nominating a president by political parties is considered “people’s support”, why bother with a Presidential Election (Pilpres)? According to this kind of thinking, a presidential candidate supported by over 50 percent of the political coalition (read: a cartel) equals the majority of people. Of course, this is misleading. 

Another reason: MK assumes the 20 percent presidential threshold is in line with the Constitution, Article 6A paragraph (5), which states, “The procedure for the holding of the election of the President and Vice-President shall be further regulated by law,” as an open legal policy. Hence, MK opined that everything regulated in the derivative law (the Election Law) is an agreement between political parties, legal, constitutional, and does not violate the Constitution. 

This opinion is incorrect, fabricated, and contravening the Constitution. First, Article 6A paragraph (5) orders regulation regarding only procedures outlined in the Election Law. However, the system must not conflict with the Constitution: zero requirements for a presidential threshold (PT), must not adopt people’s sovereign rights to become political party properties, and must not limit the (opportunity) rights of citizens to vote and be elected by one or more political parties. 

Thus, the open legal policy related to Article 222 of the Election Law with a 20 percent presidential threshold requirement conflicts with the Constitution and is unconstitutional. 

MK has no reason to reject the community lawsuit aimed at eliminating the presidential threshold. The Constitutional Court’s (MK) decision will determine whether the Constitutional Court is the defender of the Constitution or a tyrant backer.