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Protecting Economic and Social Rights in a Constitutionally Strong Form of Judicial Review: the Case of Constitutional Review by the Indonesian Constitutional Court

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Protecting Economic and Social Rights in a Constitutionally Strong Form of Judicial Review: the Case of Constitutional Review by the Indonesian Constitutional Court Protecting Economic and Social Rights in a Constitutionally Strong Form of Judicial Review: The Case of Constitutional Review by the Indonesian Constitutional Court Andy Omara A dissertation submitted in partial fulfillment of the requirement for the degree of Doctor of Philosophy University of Washington 2017 Reading Committee: Beth E. Rivin, Chair Hugh D. Spitzer, Co-Chair Walter J. Walsh Mark E. Cammack Program Authorized to Offer Degree: School of Law ©Copyright 2017 Andy Omara University of Washington Abstract Protecting Economic and Social Rights in a Constitutionally Strong form of Judicial Review: The Case of Constitutional Review by the Indonesian Constitutional Court Andy Omara Chair and Co-Chair of the Supervisory Committee Professor Beth E. Rivin and Professor Hugh D. Spitzer School of Law The 1999-2002 constitutional amendments to Indonesia’s Constitution inserted some important features of a modern constitution. These include the introduction of a comprehensive human rights provision and a new constitutional court. This dissertation focuses on these two features and aims to understand the roles of this new court in protecting economic and social rights (ES rights). It primarily analyzes (1) factors that explain the introduction of a constitutional court in Indonesia, (2) the Court’s approaches in conducting judicial review of ES rights cases, (3) Factors that were taken into account by the Court when it decided cases on ES rights, and (4) the lawmakers’ response toward the Court’s rulings on ES rights. This dissertation reveals that, first, the introduction of a constitutional court in Indonesia can be best explained by multiple contributing factors –not a single factor. These factors include the history of judicial review in Indonesia, the impeachment of President Abdurrahman Wahid, the fragmentation of political powers and the influence of other countries experiences. Second, Tushnet’s and Young’s typologies are actually quite helpful in conceptualizing and understanding the Indonesian Constitutional Court’s approach to judicial review. Like most constitutional courts, Indonesia’s Court has certainly not limited itself to a legal or doctrinal approach to decisions, but has taken many other factors into account in its decisions. The Court has developed several approaches to judicial review other than the approach that is expressly stated in the Constitution and the Constitutional Court Act. In general, the Court has been fairly strong in its approach to judicial review, and has not been afraid of declaring that statutes are inconsistent with the Constitution. At the same time, the Court has not consistently applied a “strong form “of judicial review in Tushnet’s concept, but has moved back and forth among different approaches depending on the nature of the case, the complexity, the financial impact, and other factors. Third, while the Court largely adopted a peremptory stance, in Young’s typology, this has also not been consistent. In some instances, the Court has entered in a more interactive discourse with the government and the legislature, also depending on the nature of the case, the impact of the decision, and the concern about leaving a legal vacuum by simply rendering an important statute void. Finally, this dissertation found that the lawmakers’ response toward the Court rulings has partly depended on what the Court wrote in its decisions. The Court has developed some techniques to anticipate the lawmaker’s response. These techniques include null-and-void decisions, declaration of incompatibility (suspension of invalidation), judicial order directed to the lawmakers, a statement upholding a statute but requiring the lawmakers to interpret the law in conformity with the court’s interpretation (conditional decision), and the invalidation of a statute in its entirety. These techniques can be explained using the five stances of Katharine G. Young’s judicial review ranging from deferential, conversational, experimental, managerial, to peremptory stances. This dissertation shows that the effect of judicial review differs across issues. Judicial review may not be likely to generate the same effective implementation in all situations. From a comparative perspective, this dissertation provides significant confirmation that the Indonesian Constitutional Court’s approaches in deciding cases on economic and social rights can be analyzed through Tushnet’s weak form and strong form of judicial review. It also contributes ample evidence that the relationship between the Indonesian Constitutional Court, the legislature, and the executive can be understood using Young’s typology of judicial review. Table of Contents Acknowledgments i List of Tables iii List of Abbreviations iv List of Judicial Review Cases vi Chapter 1: The Indonesian Constitutional Court, Judicial Review, and the Protection of Economic and Social Rights 1 Introduction 1 Research Questions 5 A. Working Hypotheses 5 Literature Review 7 Literature on adoption of constitutional review in Indonesia 7 Literature on models of judicial review 11 Literature on judicial decision-making process 18 Literature on judicial enforcement of court decisions on economic and social rights 21 Theoretical framework and relevance to the literature 30 Research Methodology 32 Chapter 2: Judicial Review and Human Rights Provisions in the Old Constitutions: From Resistance to Acceptance of Both Judicial Review and Human Rights Provisions 39 Drafting human rights provisions in the first constitution: The fight between the integrated state idea and liberal democracy 43 Drafting of judicial review provisions in the first constitution: Another example of resistance to liberal democracy principles 53 Drafting human rights provisions and judicial review in the 1949 Federal Constitution: More coherent ideologies among the constitutional drafters and external influence 56 Drafting human rights and judicial review provisions in the 1950 Provisional Constitution: advancing human rights provisions yet rejecting judicial review 62 Drafting human rights and judicial review provisions: Post 1950 Constitution 66 Conclusion 75 Chapter 3: The Constitutional Court, Judicial Review, and Human Rights in the Updated Constitution 79 Reasons to establish a constitutional court: A comparative perspective 84 Reasons to introduce a new constitutional court, judicial review and human rights in the new Constitution 88 A. Historical Account Regarding the Need of Constitutional Court 89 B. President Wahid – The DPR Disputes 92 C. International Influence 96 Why establish a new, separate court? 100 Institutional design of the new constitutional court: The new court and standing 108 The introduction of human rights provisions in the updated constitution 117 The updated human rights provisions: detailed or general? 119 What should be inserted in the new human rights provisions? 125 The MPR’s views 126 Civil Society’s view 128 Conclusion 132 Chapter 4: The Indonesian Constitutional Court’s Approaches to Judicial Review on Cases Related to Economic and Social Rights 136 An explanation of two models 138 Model 1: Strong form and weak form of judicial review 138 Model 2: Legal and extralegal model 139 The nature of the Indonesian Constitutional Court decisions 143 Applying theories to practice: The Constitutional Court’s approaches in judicial review of Laws related to economic and social rights 146 The back and forth of the Court’s approaches on right to education: From a strong, to a weak, to a stronger form of judicial review 147 A. Budget for Education cases 147 The Educational Legal Entities (BHP) cases: Another example of the Court’s inconsistent approach 167 A. National Education System Law case: a strong form of judicial review in disguise. 167 B. The Educational Legal Entity Law (the BHP-Badan Hukum Pendidikan) case:a weak form of judicial review? 170 C. Higher Education Law case 173 Analysis 176 The Court’s approach on right to social welfare cases: a weak form, a strong form, and a super strong form of judicial review 178 A. Electricity Law case: Super strong form of judicial review? 179 B. Water Resource Law I case: A weak form of judicial review? 182 C. Oil and Natural Gas Law I case: A strong form of judicial review? 186 D. Oil and Natural Gas law II case: A strong form of judicial review? 188 E. Water Resources Law II case:From a weak to a strong form of judicial review 191 Analysis 193 Conclusion 194 Chapter 5: Implementation of the Constitutional Court Decisions on Judicial Review Cases Related to Economic and Social Rights and the Reactions from the Other Branches 199 Introduction 199 Factors that may influence the implementation of court decisions 204 The relationship between the Constitutional Court, the government, and the legislature in judicial review 207 Legislation on the implementation of the Constitutional Court rulings 209 Some challenges in enforcing the Constitutional Court decisions 212 The Constitutional Court techniques in dealing with economic and social rights cases 214 The implementation of the Constitutional Court rulings on judicial review cases related to economic and social rights 220 Judicial Implementation on the right to education 221 Budget for Education case: From conversational to managerial 221 The BHP case: Peremptory stance? 227 The Education right cases: Analysis and conclusion 230 Judicial implementation of the constitutional right to social welfare in the national resources context 232 The Electricity Law case: A peremptory stance 232 Judicial implementation
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