Since its inception, the CC has been regarded as a new model for judicial reform in Indonesia in particular in terms of transparency and capability.
3
It is seen as concerned with achieving a broad form of social justice and with advancing the process of
democratization .
4
More significantly, the CC appears to be emerging as an effective
guardian of the new Constitution ,
5
particularly in relation to the human rights norms through the power of constitutional review.
This paper aims to discuss the contribution of the CC in the application of international human rights norms. This paper proceeds as follows. Part A will explain human rights
norms embedded in the Amended Constitution, which then be followed by Part B that will discuss some of the CC decisions in regard to human rights. Part C will provide summary of
the discussion. Although I argue that the CC plays an important role in applying international human rights norms, however, the CC has not yet provided strong and solid
arguments on the use of international treaties on human rights in its decisions.
A. Human Rights and the Amended 1945 Constitution
Although it is not expressly stated, under the Amended 1945 Constitution, the CC is the state
s highest jurisdiction on constitutional matters. This is mainly because the CC is the only court to hear constitutional disputes through which it has the power to make the first
and final binding decision. To understand the breadth of this mandate, in particular it relates to human rights, a brief overview of human rights provisions is important.
n , the People s Consultative Assembly – the highest state s organ at the time – agreed
to adopt a bill of rights. Unlike its predecessor, human rights and liberties have been one of the main focuses of the new Constitution. It directly incorporates the Universal Declaration
3
Susi Dwi arijanti and Tim Lindsey, ndonesia: General Elections test the amended Constitution and the new Constitutional Court ,
, nt t J Con Law . See also, Susi Dwi arijanti, Comparative Law and
Constit utional Amendment: The Case of ndonesia , Paper presented at the International Conference on
Comparative Law organized by College of Comparative Law, China University of Political Science and Law, Beijing, September 25-26, 2015, p4.
4
Ibid.
5
Ibid.
of Human Rights.
6
Chapter XA of the Constitution dedicates ten articles to human rights and it is the first meaningful protection of human rights in the Constitution since the Old and
New Order governments. Moreover, it represents a radical shift in ndonesia s constitutional philosophy from essentially authoritarian to liberal-
democratic in nature .
7
The Constitution places a heavy burden on the state to guarantee these rights, culminating in Art. para
, which declares that the protection, advancement, upholding and fulfillment of human
rights are the responsibility of the state, especially the government .
The original 1945 Constitution contained few articles that guaranteed civil and political rights. The absence of significant constitutional protection had been largely caused by
intense philosophical debates among the founding fathers and the framers of the constitution during the preparatory process in drafting a constitution for Indonesia in
1945. There were two divided opinions in regard to human rights clause, in particular it related to freedom of expression. Soepomo strongly rejected the idea of inserting freedom
of expression in a constitution given the fact that this right was closely linked to individualism and it was therefore in contravention with the philosophical ground of the
constitution which was based on the integralistic staatsidee.
8
Soekarno shared similar argument with that of Soepomo. In contrast, both Mohammad Hatta and Muhammad Yamin
strongly endorsed protection of freedom of expression in a constitution. Hatta argued that although Indonesia would correctly be based on collectivism, but protection of freedom of
expression was essentially important in order to prevent excessive powers that might be applied by state or government.
9
The debates then resulted in a compromise provision that fully said:
The freedom to associate and to assemble, to express written and oral opinions, etc., shall be regulated by law.
6
See also Tim Lindsey, Constitutional reform in ndonesia: Muddling towards democracy in Tim Lindsey ed, Indonesia: Law and Society, 2
nd
edition, Annandale, NSW: The Federation Press, 2008, p29.
7
Ross Clarke, he Bali Bombing, east Timor trials and the Aceh Human Rights Court – retrospectivity, impunity and constitutionalism in Tim Lindsey ed , Indonesia: Law and Society, 2
nd
edition, Annandale, NSW: The Federation Press, 2008, p432.
8
Muhammad Yamin, Naskah Persiapan Undang-Undang Dasar 1945, Jilid Pertama, Jakarta: Prapanca, 1959, p114, 314-5.
9
Ibid, p296.
As mentioned above, the 2000 amendment essentially took the form of a Bill of Rights that closely modelled on the Universal Declaration of Human Rights. The Constitutional
coverage of protection is arguably more extensive than those of many developed states.
10
A number of specific provisions and protections enshrined within the Amended Constitution
include: Citizenship, the right to have citizenship and equality before the law.
Anti-discrimination and equal opportunity. Freedom of expression, assembly and organization.
The right to education, learning and access to information. The right to a healthy environment.
Freedom of religious and believe and its practice. Freedom from torture and other degrading or inhumane acts.
The right to adequate housing and health services. The right to state-funded social welfare services.
The right to have family and to procreate. Freedom of the press and for the expression of cultural values.
The right of indigenous people. The right to property
Non-retrospective principle.
Given such extensive constitutional coverage on the protection of human rights, it is thus essential to have a court which plays major role in enforcing these constitutional rights.
The next Part deals with the application of human rights norms within the CC.
B. The Substantive Human Rights Jurisprudence of the Constitutional Court
