THE PROTECTION OF CIVIL AND POLITICAL RIGHTS BY THE CONSTITUTIONAL COURT OF INDONESIA
* Published in Indonesia Law Review, Vol 6, No. 2, August 2016, pp. 159-179
Abstract: One of important mechanisms considered effective to protect civil and political rights of the citizens in Indonesia is constitutional review. This mechanism was created after the constitutional reform by establishing the new Constitutional Court in 2003 as an independent and separate court from the Supreme Court. This article examines the development of human rights guaranteed in the Indonesian Constitution. It also provides a critical analysis of the Constitutional Court’s role in protecting civil and political rights in Indonesia through its landmark decisions on five categories, namely: (1) freedom of assembly and association; (2) freedom of opinion, speech and expression; (3) freedom of religion; (4) right to life; and (5) due process of law. This research was conducted based on qualitative research methodology. It used a non-doctrinal approach by researching the socio-political impacts of the Constitutional Court’s decisions. Although there are still inconsistencies in its decisions, the research concludes that the Constitutional Court has taken a step forward for a better protection of civil and political rights in Indonesia that never existed prior to the reform.
Keywords: Civil and Political Rights, Constitutional Court, Human Rights, Indonesian Constitution
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Abstract: A jurisdiction of the Indonesian Constitutional Court concerning constitutional adjudication is only limited to review the constitutionality of national law. There is no mechanism for challenging any decision or action made by public authorities that violate fundamental rights enshrined in the Indonesian Constitution. This article argues that constitutional complaint and constitutional question might be adopted as new jurisdictions of the Indonesian Constitutional Court in order to strengthen the protection of fundamental rights of its citizen. It also identifies main problems that will be faced by the Constitutional Court in exercising constitutional complaint and constitutional question. For instance, the Court will be burdened with too many cases as experienced by other countries. A clear mechanism for filtering applications lodged to the Constitutional Court and the time limit for deciding cases are important elements that have to be regulated to overcome the problems. In addition, the institutional structure of the Constitutional Court has to be improved, particularly to support its decision-making process.
Pan Mohamad Faiz, S.H., M.C.L., Ph.D. 