Indonesia: Complaint paves way for court review of bylaws

The call for the provision of constitutional complaint in Indonesia mounted especially in 2008 after repeated violence levelled against members of the Ahmadiyah religious sect. Many have argued that the state had allowed for such incidents to occur by taking limited and even no action against those responsible.

Ahmadiyya Times | News Staff | Int'l Desk
Source & Credit: The Jakarta Post
By Arghea Desafti Hapsari | July 7, 2010

An authority to adjudicate constitutional complaints will open the Constitutional Court’s door for those wanting to contest rights-breaching regulations, including discriminative bylaws adopted in regions, an expert says.

A constitutional complaint is generally defined as a request made by citizens to the court for adjudication on violation of their constitutional rights due to the exercise of public power or state action.

On Tuesday, Constitutional Court chief justice Mahfud M.D. said it was time for the court to be granted the authority to pass rulings on constitutional complaints.


Constitutional law expert Irman Putra Sidin told The Jakarta Post that discriminative bylaws, such as those regulating curfews for women, could be contested at the court should it welcome constitutional complaints.

“In fact, the court will be able to review all kinds of regulations that are deemed to violate the constitutional rights of any citizen,” he said.

In Indonesia, the authority to review bylaws and other products of law falls under the Supreme Court.

The court uses existing laws as a touchstone.

Irman said, should the country provide for constitutional complaint within its legal system, the Constitutional Court would be able to review bylaws using the Constitution as a reference point.

Mahfud said, “If the Supreme Court’s ruling turned out to be wrong… the way [to fix it] is through a constitutional complaint.”

Most democracies have provided a mechanism for constitutional complaints in their legal systems, including Germany, South Africa and South Korea.

The call for the provision of constitutional complaint in Indonesia mounted especially in 2008 after repeated violence levelled against members of the Ahmadiyah religious sect. Many have argued that the state had allowed for such incidents to occur by taking limited and even no action against those responsible.

Constitutional Court justice Akil Mochtar said the authority to adjudicate constitutional complaints should be granted through the Constitution because “it stipulates all of the court’s authorities”.

“But amending the Constitution is not easy to do. Therefore, the authority [to rule on constitutional complaint] can be granted to the court through a law,” he added.

Irman said the court did not need to wait for a law to be deliberated to regulate its authority to pass judgments on constitutional complaints.

“The Constitutional Court is the interpreter of the Constitution. It can decide for its own authority through its rulings. But one question remains; is the country’s political condition ready to accept the fact that the court will be able to review virtually every regulation?” he added.



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