Melbourne Law School - Theses
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ItemThe use and misuse of foreign materials by the Indonesian Constitutional Court: a study of constitutional court decisions 2003-2008( 2010)This thesis examines the Indonesian Constitutional Court's (MK) use of foreign and international sources of law in constitutional adjudication. Specifically, I seek to address three questions, each of which represent the main criticisms of the practice. First, is the MK's use of foreign materials in constitutional adjudication legitimate? Or is it undemocratic and an excessive exercise of the Court's judicial authority? Second, does the MK demonstrate a sufficient level of understanding of the contextual background from which the transnational principle derives, needed to evaluate whether the transplanted principle is suitable to the Indonesian context? Third, does the MK selectively use foreign materials only when the adopted principle supports an already identified position and ignores the sources that oppose the outcome sought by the Court? On the first question, the MK derives legitimacy from its adoption of a `universalist' interpretive theory. Under this approach, all courts are assumed to be identifying and interpreting the same set of constitutional norms thus providing the theoretical basis to use foreign materials to interpret those norms. However, the adoption of principles from transnational sources of law by the MK are generally not accompanied with clear reasons that justify why the principles it selects are relevant to the Indonesian context and why those it ignores are irrelevant. As a result, the Court does not demonstrate whether it has sufficient knowledge of the context from which the transplanted law derives. A lack of contextual knowledge gives rise to the risk that the court applying the laws may do so inappropriately or even incorrectly. The lack of transparency on the manner in which the foreign materials are selected; and quantitative evidence showing that the overwhelming majority of citations, in fact, did support the MK's decisions; exposes the Court to the third criticism, that it `cheery picks' foreign materials only when a supporting principle can be found to lend legitimacy to a preferred policy position or result.
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ItemJudicial review in Indonesia: between civil law and accountability?: a study of constitutional court decisions 2003-2005( 2006)This thesis assesses Indonesia's new Constitutional Court (Mahkamah Konstitusi, MK) through an analysis of the decisions it handed down in 2003-2005. Established in 2003, the MK has jurisdiction to resolve jurisdictional disputes between state institutions; to rule on disputed electoral returns and motions to impeach the President or VicePresident; and to review statutes. It is the first Indonesian court to have jurisdiction over these matters. In some of its decisions, the Court has exercised its judicial review powers vigorously. It has struck down unconstitutional statutes, discovered and enforced implied rights and government obligations, and assessed government policy. Its decision-writing style, however, reflects traditional French civil law influence, providing little transparency in its decision-making process. This raises questions about the level of accountability to which the Court exposes itself. Its accountability is brought further into question by some of its institutional characteristics, such as its lack of external supervision, the dearth of judicial training for its judges and the absence of performance-based career incentives. I show that the government is prepared to ignore, or circumvent, decisions of the Court. I argue that to command more respect, the Court could increase the transparency and accountability it provides, by writing decisions that are better reasoned. Alternatively or additionally, it could reduce its activism so as to reduce the level of accountability it should provide. The Court has already begun doing this - notably by declaring that its decisions operate only prospectively and by allowing unconstitutional statutes to stand in the 2005 and 2006 Budget cases. This thesis argues that, although these cases are a good start, the Court could further improve the level of accountability it provides. Unless the Court issues better reasoned decisions, or less political dramatic decisions, or both, the Indonesian government might not comply with the Court's decisions. The government might claim that it does not understand the Court's decisions or the rationale for them, or might be unwilling or unable to comply. Unless the Court succeeds in achieving compliance with its decisions, it may end up being counted in the long list of failed attempts at Indonesian judicial reform.
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ItemIndonesian constitutional reform 1999-2002: an evaluation of constitution-making in transition( 2005)In 1999, the MPR (Majelis Permusyawaratan Rakyat, the People's Consultative Assembly) enacted the First Amendment to the 1945 Constitution of Indonesia. Over each of the next three years, it passed a further amendment. Despite their important contribution to Indonesia's transition from Soeharto's authoritarian regime, no comprehensive study has been made of these four amendments, and the process by which they were produced. This thesis is an attempt to fill this gap, by critically evaluating the process and outcomes of these amendments, in the context of constitutional theory and the experience of other countries, in particular, South Africa and Thailand. This thesis argues that the 1999-2002 constitutional amendments lacked what have widely been accepted as key features of a democratic constitution-making process: (i) there was no clear plan for determining the key elements of the process, such as when the amendment would occur, how it would be conducted, and what the outcomes would be; (ii) the MPR failed to win the people's trust in its capacity as a constitution-making body; and (iii) public participation was limited and badly organized. Many of these problems with the reform process, however, related to fundamental issues within the Constitution itself. It contained two aspects seen as crucial to the identity and survival of the country by most nationalists, including the military: the rejection of an Islamic state and the imposition in its place of a nationalist state ideology, the Pancasila, contained in the preamble to the Constitution. Many nationalists feared that opening the Constitution to real change would jeopardize these positions, which they saw, and still see, as non-negotiable. The result was a slow, patchy and tentative process marked by constant negotiation and deal-making as most stakeholders sought a way to dismantle Soeharto's dictatorship without disturbing these twin nationalist principles. Despite these problems, at the end of the process, the Constitution was more democratic in form. In particular, the amendments established a clearer separation of powers between the executive, legislature and judiciary; and more impressive human rights protections. This is because the euphoric transitional period provided a setting that encouraged open constitutional debates in the MPR and allowed public participation in these debates, despite the flaws in the MPR's system for public engagement. The amended Constitution remains, however, far from perfect. This thesis recommends further amendments to, first, strengthen the system of checks and balances introduced between 1999 - 2002; and, second, to entrench the preamble and guarantee the difficult relationship between Islam and state in their current form.