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

Thesis (Ph.D.)--University of Washington, 2017Abstract Protecting Economic and Social Rights in a Constitutionally Strong form of Judicial Review: The Case of Constitutional Review by the Indonesian Constitutional Court 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