“With rare exceptions, such as the courts headed by John Marshall and Earl Warren, it was not common until recently to explain the work-product of consti- tutional courts by focusing on their leadership. Now, however, a number of writ- ers have begun to emphasize the importance of the chief justice in guiding courts to be bold or cautious, expansive or restrictive, in their constitutional decisions. With his extensive knowledge and with great judiciousness, Stefanus Hendrianto has examined the important role of chief justices of the Constitutional Court of Indonesia. He shows convincingly that leadership can indeed make a major dif- ference in the emergence of constitutional doctrine, as he examines the work of the Court and compares it to similar courts elsewhere. This is an important work of comparative constitutional law and politics that will repay careful study.” Donald L. Horowitz, Duke University, USA and author of Constitutional Change and Democracy in Indonesia “This book is a major contribution to comparative constitutional studies. It pro- vides a crisp and authoritative account of the early jurisprudence of the Indonesian Constitutional Court, a highly active and creative court operating in one of the world’s largest democracies. It also offers a fascinating account of the role of Chief Justice Jimly Asshiddiqie as the leader of that court, and in doing so makes an important contribution to broader debates about the role of constitutional judges—and different styles of constitutional judging—in the consolidation of constitutional democracy.” Rosalind Dixon, UNSW Sydney, Australia “This fascinating study of the Indonesian Constitutional Court introduces an entirely new concept for understanding judicial power: the judge as a heroic figure. Providing an exhaustive account of the Court’s successes and failures, Hendrianto makes a powerful case for the role of judicial leadership in new democracies.” Tom Ginsburg, University of Chicago, USA “This book provides a welcome and valuable contribution to the literature of comparative constitutional law and judicial politics. It broadens our compara- tive horizons by making the important example of the Indonesian Constitutional Court, with its distinctive history and model of constitutional review, more famil- iar and accessible to us; and at the same time it explores innovatively the connec- tions between judicial leadership and the institutional legitimacy and effectiveness of constitutional courts. Throughout, Hendrianto creatively combines a rich and helpful contextualization of Indonesian judicial politics with a theorization of judicial virtues in an Aristotelian frame.” Paolo G. Carozza, University of Notre Dame, USA This page intentionally left blank Law and Politics of Constitutional Courts This book critically evaluates different models of judicial leadership in Indonesia to examine the impact that individual chief justices can have on the development of constitutional courts. It explores the importance of this leadership as a factor explaining the dynamic of judicial power. Drawing on an Aristotelean model of heroism and the established idea of judicial heroes to explore the types of lead- ership that judges can exercise, it illustrates how Indonesia’s recent experience offers a stark contrast between the different models. First, a prudential-minimalist heroic chief justice who knows how to enhance the Court’s authority while for- tifying the Court’s status by playing a minimalist role in policy areas. Second, a bold and aggressive heroic chief justice, employing an ambitious constitutional interpretation. The third model is a soldier-type chief justice, who portrays him- self as a subordinate of the Executive and Legislature. Contrary perhaps to expec- tations, the book’s findings show a more cautious initial approach to be the most effective. The experience of Indonesia clearly illustrates the importance of heroic judicial leadership and how the approach chosen by a court can have serious consequences for its success. This book will be a valuable resource for those inter- ested in the law and politics of Indonesia, comparative constitutional law, and comparative judicial politics. Stefanus Hendrianto is a Jesuit and legal scholar. In recent years, he served as a visiting professor at Santa Clara University School of Law and a guest scholar at the Kellogg Institute for International Studies at the University of Notre Dame. Currently, he is a scholar at Boston College, School of Theology and Ministry. He holds a PhD degree from the University of Washington School of Law in Seattle and an LLM from Utrecht University in the Netherlands, in addition to his LLB degree from Gadjah Mada University, Indonesia. Comparative Constitutionalism in Muslim Majority States Series Editor: Javaid Rehman This series encourages research into all aspects of comparative constitutionalism within the Muslim-Majority States of South Asia and the Middle East. Key areas of investigation include the post 9-11 implications on constitutionalism and the consequences of the Arab Spring. The studies within the series span across all aspects of constitutionalism, including constitutional rights, constitutional prac- tices, rule of law issues, human rights, sexual rights and minorities. While the focus of the series is upon the Muslim-Majority States within the South Asia and Middle East region, the comparative critical assessment will engage a global analysis of constitutionalism and application of constitutional rights. Amidst the many cases of failed constitutionalism, there are a number of positives: this series also aims to explore and identify key successes from within the region. States of Emergency and the Law The Experience of Bangladesh M. Ehteshamul Bari Law and Politics of Constitutional Courts Indonesia and the Search for Judicial Heroes Stefanus Hendrianto First published 2018 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2018 Stefanus Hendrianto The right of Stefanus Hendrianto to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data Names: Hendrianto, Stefanus, author. Title: Law and politics of constitutional courts: Indonesia and the search for judicial heroes / Stefanus Hendrianto. Description: Abingdon, Oxon [UK]; New York, NY: Routledge, 2018. | Series: Islamic law in context | Includes bibliographical references and index. Identifiers: LCCN 2017054405 | ISBN 9781138296428 (hardback) Subjects: LCSH: Constitutional courts—Indonesia. | Constitutional law (Islamic law)–Indonesia. | Political questions and judicial power—Indonesia. Classification: LCC KNW2620 .H46 2018 | DDC 347.598/035—dc23 LC record available at https://lccn.loc.gov/2017054405 ISBN: 978-1-138-29642-8 (hbk) ISBN: 978-1-315-10004-3 (ebk) Typeset in Galliard by Deanta Global Publishing Services, Chennai, India For the many great Jesuits who have taught me how to build an intellectual and virtuous life, especially Fr. James V. Schall, SJ and Fr. Robert A. Araujo, SJ This page intentionally left blank Contents List of tables xi List of cited cases xii List of abbreviations xvi Acknowledgments xviii PART I Foundations 1 Introduction 3 1 Theorizing judicial heroes 13 PART II The first-generation court 39 2 The birth of the Constitutional Court: a joke that turned serious 41 3 A heroic intellectual leadership 74 4 (Un)heroic quasi-weak-form review 103 5 A heroic social leadership 128 PART III The second-generation court 151 6 After the heroic court: the second-generation decline? 153 7 Miscarriage of chief justices: the anti-heroes 185 8 A good hero is hard to find: toward a less heroic court? 216 x Contents PART IV Conclusions 247 9 Conclusion: the “heroic judicial leadership” and “second-generation decline” in comparative perspective 249 References 265 Index 280 Tables 3.1 Constitutional Court Justices 2003–2008 94 6.1 Constitutional Court Justices 2008 158 7.1 Constitutional Court Justices 2013 191 8.1 Constitutional Court Justices 2015 220 Cited cases The Indonesian Constitutional Court Decisions The Constitutional Court Decision No. 001-021-022/PUU-I/2003 (the Electricity Law case) The Constitutional Court Decision No. 002/PUU-I/2003 (the Oil and Gas Law I case) The Constitutional Court Decision No. 003/PUU-I/2003 (the Government Securities Law case) The Constitutional Court Decision No. 004/PUU-I/2003 (the Supreme Court Law I case) The Constitutional Court Decision No. 005/PUU-I/2003 (the Broadcasting Law case) The Constitutional Court Decision No. 011-017/PUU-I/2003 (the Communist Party case) The Constitutional Court Decision No. 013/PUU-I/2003 (the Bali Bombing case) The Constitutional Court Decision No. 014/PUU-I/2003