Socio Economic Rights in The Indonesian Constitutional Court

Australian Journal of Asian Law, 2016, Vol 16 No 2, Article 5: 173-193
The Divergence of a Wandering Court: Socio-Economic

Rights in the Indonesian Constitutional Court
Stefanus Hendrianto ∗
Constitutional convergence theory, which holds that there is a general trend on upward trajectory of the adoption of universal
rights, has been disputed because it tends to neglect the complexities involved in constitutional convergence. This article
focuses on decisions of the Indonesian Constitutional Court on socio-economic rights that were handed down in its first ten
years of operation. The inclusion of socio-economic rights in the Indonesian Constitution is a fitting illustration of the global
trend toward the adoption of socio-economic rights across the world. Yet this trend does not necessarily indicate a clear
constitutional convergence. This article argues that the Court’s rulings on socio-economic rights indicate that convergence
have, in fact, never taken place, rather, divergence has occurred. The Court has indeed borrowed the notion of socio-economic
rights but it has interpreted them in a totally different way to the notion of individual private rights, which allow the rights
holder to demand the enjoyment of the right. Rather, the Court has interpreted socio economic provisions as the state’s
obligation to ensure citizens enjoy their rights. Moreover, instead of defining socio-economic rights as individual rights, the
Court has consistently granted privileges to the State to control natural resources.
‘Why doesn’t the Indonesian Constitutional Court have robust bodies of jurisprudence on socio-
economic rights like the Courts in South America and South Africa? This question came from a
comparative constitutional law scholar who has done extensive work on Latin American judicial
politics. It sparked my curiosity to test the constitutional convergence thesis within the Indonesian
constitutional realm.
Many constitutional law scholars and political scientists have posited different theories to
explain constitutional convergence. One such theory is David Law’s rights-based convergence, or a
global ‘race to the top’ when it comes to the protection of individual rights such as civil liberties and
property rights (Law, 2008). Others, such as Zachary Elkins, Tom Ginsburg, and Beth Simmons
find similar evidence for rights-based convergence (Elkins, 2013). Based on their analysis of 680 out
of 839 constitutions, they find a general upward trajectory in the adoption of universal rights.
Moreover, they find convincing evidence that instruments of the UN in guaranteeing rights, such
as the Universal Declaration of Human Rights, have been influential on the catalogue of rights in
many post-World War II constitutions.
In the context of Indonesia, some scholars have implicitly argued that there is a trend toward
constitutional convergence, especially after a series of constitutional reforms that took place in the
1990s and early 2000s (Stockmann, 2007; Chen, 2014). The inclusion of a lengthy and impressive
Bill of Rights in the Indonesian Constitution can be seen as evidence that Indonesia has joined the
aforementioned ‘race to the top’ in an upward trajectory of adoption of universal rights. The Second
Amendment of the Constitution, indeed, adopted a long catalogue of rights, such as the right to
have a family; the right to self-development; the right to collective action; the right to education; a
right against violence and discrimination; a right to equal opportunity; and a right to access
information—among many others. Professor Tim Lindsey of the University of Melbourne sees the
Indonesian Bill of Rights as, in theory, granting a full range or protections extending well beyond
those guaranteed in most developed states (Lindsey, 2002). The adoption of the Bill of Rights was
∗ Visiting Scholar, the Kellogg Institute of International Studies, University of Notre Dame; PhD Asian and
Comparative Law, University of Washington Law School, Seattle; LLM, Utrecht University, Netherlands;
LLB, Gadjah Mada University, Indonesia. This article was originally presented at the Workshop on
‘Constitutional Court and Democracy in Indonesia: Judging the First Decade,’ held by the University of
Sydney and the University of New South Wales, 11-12 December 2014. At the time of writing this article,
I was an Adjunct Professor at Santa Clara University Law School and Political Science Department. I
have benefited from comments on earlier drafts from Simon Butt and Rosalind Dixon. I am grateful to
Gus Hardy who provided excellent editorial assistance.
Electronic copy available at: https://ssrn.com/abstract=2744395

Australian Journal of Asian Law Vol 16 No 2
followed by the establishment of the Constitutional Court (Mahkamah Konstitusi). Some believe
that, in its first few years of its operation, the Court enhanced the rule of law principles in
Indonesia in a number of ways such as dismantling the legacy of Soeharto’s authoritarian regime’s
legacy and strengthening human rights protection (Stockman, 2007: 5).
The inclusion of socio-economic rights in Indonesia is a fitting illustration of the global trend
toward the adoption of socio-economic rights across the world. Yet this trend does not necessarily
indicate a clear constitutional convergence. Rosalind Dixon and Eric Posner argue that many
scholars make claims about constitutional convergence in a general way and then neglect the
complexities of the convergence theory (Dixon and Posner, 2011). Dixon and Posner allege that
there are various pathways of convergence and sometimes the actual convergence is limited or even
does not take place at all (Dixon and Posner, 2011: 405). For example, the adoption of a Bill of
Rights might only be constitutional borrowing instead of constitutional convergence. Constitutional
borrowing, they argue, does not always result in convergence and sometimes divergence takes place
instead.
This paper investigates whether constitutional convergence has taken place in Indonesia. It
focuses on some decisions of the Indonesian Constitutional Court on socio economic rights issues in
its first ten years. During this period, the Court was under the Chairmanship of Jimly Asshiddiqie,
and then Mohammad Mahfud. I will also explore some of the Court decisions under the
Chairmanship of Akil Mochtar, Hamdan Zoelva and the current Chief Justice Arief Hidayat.
Dixon and Posner posit that the reference to convergence in the case of a written constitution
can be problematic because constitutional rules can be created by judicial construction and require
the researcher to consult cases and judicial opinions that are often difficult to interpret (Dixon and
Posner, 2011: 407). I agree with Dixon and Posner that it is difficult to consult cases and judicial
opinions without deep knowledge of how a court works in a particular constitutional context.
Nevertheless, as an Indonesian researcher working in my own constitutional culture, I already
have knowledge of the constitutional mechanisms in Indonesia. 1 My hope is that by reviewing the
Constitutional Court decisions on socio economic rights, I will be able to examine whether
constitutional convergence has, in fact, taken place in Indonesia.
In this article, I conclude that, although the Indonesian Constitution has incorporated
individual rights, this incorporation does not necessarily amount to constitutional convergence. In
fact, my analysis of the Constitutional Court jurisprudence on socio-economic rights suggests that
constitutional convergence has not taken place. The socio-economic rights jurisprudence in the
Indonesian Constitutional Court is not based on the notion of individual rights, in which the rights
holder can demand enjoyment of the right to be ensured. Rather, the Court has interpreted socio
economic provisions as an obligation on the state to ensure citizens enjoy their rights. Moreover,
the Court has conflated the notion of socio-economic rights with the state control over natural
resources. Instead of defining socio-economic rights as individual rights, the Court has consistently
granted privileges to the State to control natural resources.
Background on the Indonesian 1945 Constitution and Constitutional Court

The original version of the 1945 Indonesian Constitution contained no references to basic civil,
political rights, or socio-economic rights. 2 The absence of references to human rights protection can
be traced back to the debates that took place at the time of the adoption of the 1945 Constitution.
During the discussions of the Investigating Committee that prepared the draft of the Constitution
1 Professor Kim Lane Scheppele has also criticised the variable model methodology for having a tendency to
mislead in the absence of deep knowledge of how the institution (the Court) worked within a particular
constitutional context. Instead, she proposes an ethnographic examination, a methodological approach of
collecting ‘whole specimens of social life. See Scheppele, 2004.
2 Article 28 of the original 1945 Constitution provides, ‘Freedom of association and assembly, of expressing
thoughts and of issuing writing and the like, shall be prescribed by a statute of [the national legislature]’.
Because the freedom of expression in art 28 has to be prescribed by statute, the scope and limit of that
freedom would be dependent upon the discretion of the lawmaker. Thus, it cannot be said that there was,
in fact, any guarantee of freedom of expression in the Constitution.
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and the philosophical basis for Indonesian Independence (between 29 May and 1 June 1945), one of
the key drafters of the Constitution, Professor Soepomo advanced the proposal of an ‘integralistic’
state, under which there is no division (or ‘dualism’) between the state and individuals (Yamin,
1959: 114). Soepomo’s conception derived from the idea that the state was conceived as a family
and that the good of the family must supersede that of its individual members (Yamin, 1959: 112).
Although some scholars believe that the idea of the ‘integralistic’ state continued to influence the
Indonesian Constitutional constellation after independence (Lubis, 1993: 93), it did not explicitly
re-emerge in Indonesian political and legal discourse until the 1980s when the New Order military
regime began to use the theory to overtly justify its efforts to curb demands for human rights
protection (Simandjuntak, 1994).
During the Reformasi period that marked the end of the long reign of Soeharto’s New Order
military regime (1966–98), President BJ Habibie presided over massive legislative reforms that
included electoral, human rights, and decentralisation reforms. Butt and Lindsey noted that these
reforms meant that the ‘integralistic’ state theory seemed to vanish quickly from public discourse
(Butt and Lindsey, 2012: 20). The requiem for the ‘integralistic’ theory finally arrived when
constitutional amendment began in 1999. In 2000, the People’s Consultative Assembly (Majelis
Permusyawaratan Rakyat – MPR) adopted the Second Amendment, which includes a lengthy
provision of human rights protections. 3 Lindsey has argued that these new provisions delivered the
most radical change to the original philosophy of the Constitution, as Soepomo’s ‘integralistic’
theory was tempered with clauses lifted directly from the Universal Declaration of Human Rights
(UDHR) (Lindsey, 2002: 254).
It is important to note that despite its impressive results, there was no significant debate on
the idea of human rights in the Second Amendment. A few politicians opposed the adoption of a
human rights provision on the ground that it was unnecessary but overall there was no deep
philosophical debate on this issue (Indrayana, 2008: 217). One of the plausible explanations for this
is that those who were assigned to discuss the Second Amendment were not knowledgeable about
human rights issues. Many scholars and analysts have suggested that the Bill of Rights of
provision in the Second Amendment was drawn from the Universal Declaration of Human Rights
(UDHR) (Butt and Lindsey, 2012: 190; Indrayana, 2008). While it is true that many of the UDHR
provisions were added and translated into the Indonesian Constitution, some of the UDHR
provisions were not included.
The Socio-Economic Rights provision is an example of how many core components of UDHR
were missing from the Second Amendment. If one looks at the history of the adoption of UDHR,
socio-economic rights are an important provision included in the documents due to persistent
demand of the Soviet Blocs (Glendon, 2001). At least six provisions in the UDHR documents
explicitly guarantee socio-economic rights, including the right to food, clothing, housing, medical
care, education and leisure. 4 The Second Amendment to the Indonesian Constitution, however,
only contains one major provision on socio-economic rights, and it is limited to the rights to
housing, healthy environment, and medical care. 5 In addition, the Second Amendment also adopted
the right to education in a separate provision. 6 The result is that the socio-economic rights
provisions in the Indonesian Constitution are not as comprehensive as the UDHR.
The Second Amendment took place on 7 August 2000, in an atmosphere of political tension,
with a confrontation between President Abdurrahman Wahid and the politicians in the MPR. As
many politicians were preoccupied with their (ultimately unsuccessful) attempt to impeach Wahid,
they did not pay much attention to the issue of Bill of Rights in the Second Amendment
(Indrayana, 2008: 291). The political showdown between the MPR and President Wahid later
opened the way for the establishment of the Constitutional Court in the Third Amendment, which
was passed in 2001.
3 Constitution of Republic of Indonesia 1945, art 28A to 28J (the Second Amendment).
4 The Universal Declaration of Human Rights, arts 22-27.
5 Constitution of Republic of Indonesia 1945, art 28H(1).
6 Constitution of Republic of Indonesia 1945, art 28 C(1).
175

On 21 July 2001, the MPR opened formal impeachment proceedings against President
Abdurrahman Wahid, who was accused of involvement in two multimillion-dollar graft scandals.
He denied any wrongdoing but the legislators pressed ahead with their campaign against him and
censured the president three times as a prelude to formal impeachment proceedings. On 23 July
2001, the MPR formally dismissed President Wahid and appointed Vice President Megawati
Soekarnoputri as the new president. After Megawati became president, her party, the PDI-P, 7
realised that she needed an insurance mechanism to prevent her opponents from impeaching her
as they did Wahid. The PDI-P therefore proposed the creation of a Constitutional Court that would
have authority to review an impeachment motion against a sitting President. 8
As the Constitutional Court was initially set up as the ‘Court of Impeachment,’ there was little
attention paid at the time to the judicial review authority of the Court and the court’s jurisdiction
to protect individual rights of private persons. One of the most important features of the
Constitutional Court in European countries like Germany and Spain is the mechanism of
‘constitutional complaint’, by which the Court can review any act of a public authority for
conformity with the protection of human rights under the Constitution. The objects of review of
constitutional complaint are administrative actions, administrative regulations and judicial
decisions but not statutes (Brewer-Carias, 1989: 228). The Indonesian Constitutional Court,
however, does not have a constitutional complaint mechanism: its jurisdiction is limited to
statutory review and does not cover administrative decisions or regulations.
Constitutional complaint is a constitutional mechanism based on a concrete dispute, or a
dispute that arises when parties want to defend their rights against the enforcement of law or an
action by the state. In Indonesian’s Constitutional Court, however, the claimants do not defend
their rights against the enforcement of law or action by the State. Instead, the claimant presents a
constitutional question to the Court in relation to a statutory interpretation, claiming that a
statute has infringed upon their rights. 9 The Indonesian Constitutional Court was thus not
designed to protect the individual rights of private citizens in a concrete sense but rather in the
abstract.
Socio-Economic Rights: Vibrant or Unsettled Jurisprudence?

The work of legal scholars and political scientists on socio- economic rights in the past decades has
focused on the nature and place of socio-economic rights and on how they should be enforced by
court. Some scholars have argued that social rights can be classified as positive rights, which entail
that right holders can demand the right to enjoy from the state, rather than merely requiring that
the state leave them alone (Cross, 2000–01: 864-68). This argument provoked criticism that socio-
economic rights might jeopardise constitutional rights because constitutional rights should be seen
as individual protections against the state, instead of a private entitlement to protection by state
(Sunstein, 2001: 222).
On how these rights should be enforced by court, Professor Mark Tushnet of Harvard Law
School wrote that court decisions on socio-economic rights produced a new kind of judicial review,
‘weak form review’. This allowed courts to judicially enforce these rights without involving them in
complex public policy decisions (Tushnet, 2008: 242–44). Cass Sunstein argues that the Court had
found a middle ground between holding socio economic rights non-justiciable while, at the same,
time holding that politicians have an absolute duty to provide housing or food or health care to
everyone who needs it (Sunstein, 2001: 233). Rosalind Dixon posits a theory of ‘constitutional
dialogue,’ which suggests that judicial review needs to be weakened compared to traditional models
before it can be considered fully legitimate, especially in the context of the enforcement of socio-
7 Partai Demokrasi Indonesia – Perjuangan (Indonesian Democratic Party of Struggle).

8 Constitution of the Republic of Indonesia 1945, art 7.
9 Law No 23 of 2003 on the Constitutional Court, art 51 (1) provides that claimants are parties who believe
that their constitutional rights and or authorities are disadvantaged (dirugikan) by the issuance of a
statute. It appears that the Court was designed to protect individual rights to some degree but this does
not mean the Court was equipped with a constitutional complaint mechanism.
176

economic rights (Rosalind Dixon, 2007: 391-418). Dixon’s dialogic theory allows courts to intervene
and such intervention will be aimed at introducing new ideas, perspectives and even equilibrium
into the political process (Dixon, 2007: 407-08). Brian Ray proposed a new theory on the
enforcement of socioeconomic rights (Ray, 2010). Under his ‘engagement theory’, courts order the
state to negotiate with the right holders, so that a satisfactory agreement can be reached. Ray
argues that this engagement approach will allow courts to manage tension between the need to
enforce the socioeconomic rights and the capacity and legitimacy problems that courts experience
when they do so (Ray, 2010: 400).
These theories on the enforcement of socioeconomic rights have focused almost entirely on the
decisions of the South African Constitutional Court. Nevertheless, as Theunix Roux suggests, the
South African experience was bound up with the political situation and legal culture of the country
(Roux, 2013: 42). Roux argues that the South African Constitutional Court strategy on
socioeconomic rights depended on managing its relationship with the African National Congress in
a context where there was no real prospect of any other political party winning power (Roux, 2013:
36-37). Roux further argues that, through socioeconomic rights, the Court was able to develop a
review standard that would allow it to signal its deference to the political branches and, at the
same time, intervene where the political circumstances allowed for such intervention (Roux, 2013:
36-37).
As I have explained, the Indonesian Constitution has limited provisions on socio-economic
rights and the Constitutional Court possesses a limited power of judicial review. Under these
circumstances, it will naturally find it hard to produce robust bodies of socio-economic rights
jurisprudence. The Indonesian Constitutional Court is therefore much less likely to follow the
footsteps of the South African Constitutional Court. In the following section, I will show this, by
analysing how the Indonesian Constitutional Court has dealt with socio-economic rights.
The Chairmanship of Jimly Asshiddiqie
Right to Education
The Court opened its office on 19 August 2003 under the Chairmanship of Jimly Asshiddiqie.
Asshiddiqie is a notable constitutional law professor at the prestigious University of Indonesia but
he has also spent many years in government service. One of the highlights of the Asshiddiqie court
in its dealings with socio-economic rights was a series of the decisions it handed down on the ‘right
to education’ (Susanti, 2008). The Second Amendment provides for a right to education under art
28C(1) but a further, redundant clause was introduced in the Fourth Amendment, stipulating that
‘every citizen has the right to education’. 10 Ironically, both clauses never became the central issue
in the right to education-related cases decided by the Asshiddiqie court, because the Court was too
busy dealing with the interpretation of the education budget clause, which provides, ‘the state shall
prioritise the budget for education to a minimum of 20 per cent of the State Budget…’ 11
On 5 October 2005, the Court issued a decision in the National Education Law (Undang –
Undang Sistem Pendidikan Nasional) case. 12 The claimants were individual activists, elementary
and middle school teachers, and college teachers, who challenged the National Education Law, 13
especially provisions that stated that the constitutionally-required education budget (20 per cent of
the national budget) could be fulfilled incrementally. 14 The claimants argued that this violated the
education budget minimum of 20 per cent required by the Constitution. 15 Interestingly the
claimants also invoked art 28H as the grounds for their claim. They argued that the Law infringed
on their rights to work and to receive fair and proper remuneration and treatment in
10 Constitution of Republic of Indonesia 1945, art 31(1).

12 Constitutional Court Decision No 011/PUU-III/2005 (the ‘National Education System Case’).
13 Law No 20 of 2003 on the National Education System (Sistem Pendidikan Nasional).
14 Ibid, the elucidation of art 49(1).
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employment, 16 and to enjoy physical and spiritual prosperity, 17 as well as the right to social
security (jaminan sosial). 18
The majority of judges ruled in favour of the plaintiffs and declared that the provision that
allowed the national education budget to be fulfilled incrementally was unconstitutional. 19 The
Court did not address the claimants’ concern that the Law infringed their socio-economic rights but
the majority implicitly acknowledged that the claimants’ rights would be infringed if the Law
allowed the budget requirement to be met incrementally. 20 The Court’s central concern was the
education budget clause rather than socio-economic rights. It held that, in their capacity as parents
and teachers, the claimants had an interest in the 20 per cent requirement being fulfilled. 21 Thus,
the Court ruled that the claimants had standing to file the claim with regard to a violation of their
constitutional rights. 22
The Court again dealt with the education budget clause in the Education Budget II case. 23 This
time, the claimant was the Union of Indonesian Elementary and Middle School Teachers
(Persatuan Guru Republik Indonesia – PGRI). It challenged the constitutionality of the Law on the
State Budget for Fiscal Year 2006, which allocated an education budget in the amount of 9.1 per
cent of the total budget. 24 The claimant did not bring the claim based on art 28H but rather based
it on arts 31 and 28C(1), which state that ‘every person shall have the right to develop him/herself
through the fulfilment of his/her basic needs, including education’. The Court held that art 31(4) is
imperative and therefore the government should fulfil the requirement without any further delay. 25
Nevertheless, the Court held that it would not declare the law unconstitutional because that would
create further chaos. Instead, the Court asked the Executive branch to transfer surplus in the state
budget to the education budget. 26 The Court thus decided the case solely based art 31(4). It is not
clear why the Court did not give any consideration on art 28C, which explicitly mentions the right
to education.
In any case, both the Executive and Legislature essentially ignored the Court decision
requiring them to transfer the surplus to the education budget. Consequently, the PGRI (the
teachers’ union) went back to the Court to challenge the Law on the State Budget for the Fiscal
Year 2007. 27 The PGRI challenged the allocation of an education budget for that year that was only
11.8 per cent of the total State Budget. The claimants argued that this percentage did not
correspond to art 31(4). 28 In the Education Budget III case, 29 the Court ruled in favour of the
claimant and declared that the Law on the State Budget for Fiscal Year 2007 was unconstitutional.
It then decided, however, to defer to the legislature to fix the defect in the State Budget Law, with
the Court simply holding that it was ‘the lawmaker [who] should modify the State Budget in order
to make it comply with the Constitution. The Court has no authority to push the lawmaker to
16 Constitution of Republic of Indonesia 1945, art 28D(2).

19 National Education System case, 2005: 102.
20 Ibid: 93.
21 Ibid.
22 Three Constitutional Justices, Natabaya, Roestandi and Soedarsono, issued a dissenting opinion, in
which they argued that the claimants had no standing because they could not show any factual injury or
even potential injury that would damage their constitutional rights, and even if the claimants’ rights had
been damaged, that was not caused by the enactment of the challenged statute. Justice Natabaya in
private interview explained that the claimants could not even show what kind of injury would damage, or
had already damaged, their constitutional right, for instance, whether they had lost, or would lose, their
salaries or jobs because of the National Education Law.
23 Constitutional Court Decision No 026/PUU-III/2005 (the Education Budget II case).
24 Law No 13 of 2005 on the State Budget for Fiscal Year (Anggaran Pendapatan dan Belanja Negara).
25 State Budget Law II case, 2005: 95.
26 Ibid: 86.
27 Law No 18 of 2006 on the State Budget for Fiscal Year (Anggaran Pendapatan dan Belaja Negara).
28 Constitution of the Republic of Indonesia 1945, art 31(4).
29 Constitutional Court Decision No 026/PUU-IV/2006 (the Education Budget III case).
178

change the State Budget but nonetheless the Court decision should stimulate the lawmaker to
implement the Constitutional mandate’. 30
After the PGRI challenged the State Budget for Fiscal Year of 2007, two individual claimants
also went to the Court to challenge the same Law but on different grounds. In the Education
Budget IV case, a primary school teacher and a college professor claimed that they did not receive
proper income as teachers in public educational institution because the government failed to satisfy
art 31(4). 31 The Court reaffirmed its previous holding that the Law on the State Budget for Fiscal
Year 2007 was unconstitutional. This time, the Court instructed the Executive and Legislative
branches to include the salary of teachers in the education budget. 32 The Court held, ‘the inclusion
of teacher’s salary in the national education budget will help the Executive and Legislative fulfil
the constitutional mandate to allocate the minimum 20 per cent…’. 33
Again, these two cases did not deal with the Second Amendment’s socio-economic rights
provision but rather the Fourth Amendment’s education budget clause. Although the claimants in
the second case invoked their rights to receive a decent salary, they did not frame the petition in
the context of the Second Amendment but rather the Fourth Amendment. Moreover, the Court’s
decision in the Education Budget III case signified that the Court was aware of the limits of its
power, which meant it could not simply fix certain defects in a statute by modifying
unconstitutional provisions, as that is the province of the legislative branch.
The last prominent education budget case was decided on the last day of the Asshiddiqie court,
on 13 August 2008. The PGRI (the teachers Union) went back to the Court to challenge the Law on
the State Budget for Fiscal Year 2008, which allocated an education budget of 15.6 per cent. The
Court noted that it had issued four decisions and the Executive and Legislature kept ignoring
them. 34 The Court considered that it had given the lawmakers sufficient time to fulfil their
constitutional duty and that it was time for the Court to declare the state budget
unconstitutional. 35 The Court ruled that the President and the House were responsible for
deliberate defiance of the Constitution and demanded the full allocation be met in the 2009 budget.
The Court, however, still allowed the underfunded budget to stand until the 2009 budget cycle took
effect, arguing that a delay was necessary ‘to avoid governmental disaster’. 36 The Court further
held that if the next State Budget Law failed to correspond to art 31(4), the Court would rely on
this decision to declare the unconstitutionality of the Law. 37
In the aftermath of the Education Budget IV case, Chief Justice Asshiddiqie suspected that the
Yudhyono administration then orchestrated his removal. 38 The Court decided the Education
Budget V case on 13 August 2008 and Asshiddiqie believes that the decision prompted the
Yudhoyono administration to plot his removal in the election of the next Chief Justice. This took
place on 20 August and resulted in Mohammad Mahfud’s election as second Chief Justice. The
President has no direct power to remove the Chief Justice because, according to the Law, the Chief
Justice is chosen by the court’s justices in an internal election. Asshiddiqie, however, suspects that
Vice President Jusuf Kalla mobilised a number of justices against Asshiddiqie. 39 There is no hard
evidence to prove this but there are grounds that support Asshiddiqie’s suspicion. First, Chief
Justice Muhammad Mahfud has admitted that Vice President Jusuf Kalla asked him to run
against Chief Justice Asshiddiqie (Budiarti, 2010). Second, by the time of the election, the
Executive had just appointed two new justices to the court: Achmad Sodiki and Maria Farida
30 Ibid: 94.
31 Constitutional Court Decision No 024/PUU-V/2007 (the Education Budget IV case).
32 Ibid: 95.
33 Ibid.
34 Constitutional Court Decision No 13/PUU-VI/2008 (the Education Budget V Case): 99.
35 Ibid: 100.
36 Ibid: 101.
37 Ibid: 101.
38 Private conversation with Jimly Asshiddiqie, 22 December 2014.
39 Ibid.
179

Indrati. There have been rumours that the Yudhoyono administration appointed these associate
Justices with a clear message that they must vote against Asshiddiqie. Third, after his departure
from the Court in 2010, Justice Muhammad Arsyad revealed that Mahfud lobbied him rigorously to
vote against Chief Asshiddiqie at the election in 2008. Arsyad later apologised to Chief Justice
Asshiddiqie for siding with Mahfud and being part of a plot to ‘dethrone’ Asshiddiqie (Jawa Pos,
2011). Arsyad was appointed to the Constitutional Court on the nomination of the Supreme Court
not the Executive. Nevertheless, Arsyad originates from the same region as Vice President Kalla,
South Sulawesi and it is rumoured that Vice President Kalla used this personal connection to lobby
Arsyad to support Mahfud. 40
Regardless of the plot against Asshiddiqie, the Court’s decisions in the education budget-
related cases strayed far from addressing the issue of socio-economic rights. The claimants did not
consistently invoke art 28H in their argument but framed their claim mostly on the basis of arts
31(4) and 28C(1) on the right to education. The Court’s decisions were also very narrow, in that
they focused only on art 31(4) without the addressing the nature of right to education.
Right to Social Security

The Indonesian legislature (DPR) passed the Law on the National Social Security System (Sistem
Jaminan Sosial Nasional or SJSN) in 2004. 41 The preamble of the general elucidation of the SJSN
declares that the Law was passed to fulfil the mandates of arts 28H and 34 of the Constitution.
Article 28H(3) says that everyone shall have the right to social security and art 34(2) adds that the
state shall develop a system of social security for all of the people. 42 The SJSN expressly discusses
the State’s obligations to improve people’s welfare and defines social security as the fulfilment of
basic needs. 43 The SJSN does not explicitly recognise a right to social security (Chopra, 2015).
Within four months of the enactment of SJSN, the Law was challenged in the Constitutional
Court. 44 The claimants were representatives of the East Java Regional Parliament, the manager of
the East Java Province Public Health Insurance Administering Body, and the manager of the
Jakarta Public Health Insurance Administering Body. The central concern of the claimants was
that the SJSN Law required the government to establish the Social Security Administrative Body
(Badan Penyelenggaran Jaminan Sosial – BPJS). 45 They did not raise the right to social security.
Rather, they framed their argument in the context of the relation between the central government
and regional government. The claimants argued that the SJSN Law violated the Constitution
because it authorised the central government to regulate social security issues. 46 They argued that
the regional autonomy clause of the Constitution, social security falls under the jurisdiction of
regional governments. 47 Interestingly, it was the Executive, through the then Minister of Justice,
Hamid Awaluddin, that invoked right to social security (art 28H) as justification for the
establishment of BPJS in submissions to the court. 48
40 In addition to Arsyad, a new associate Justice, Muhammad Alim, also came from South Sulawesi. Like
Arsyad, Alim was appointed by the Supreme Court but Vice President Jusuf Kalla might also have used
his personal connection to lobby Alim to vote against Asshiddiqie.
41 Law No 40 of 2004 on the National Social Security System (Sistem Jaminan Sosial Nasional) – SJSN
Law.
42 Article 28H is the product of the 2000 Second Amendment and art 34 is the product of the 2002 Fourth
Amendment.
43 SJSN Law, 2004, art 1(1).
44 Constitutional Court Decision No 007/PUU-III/2005. The SJSN was drafted by the administration of
Megawati Soekarnoputri. In 2004, not long after the enactment of the Law, Megawati lost the
presidential election to Susilo Bambang Yudhoyono. The Yudhoyono administration, however, did little to
implement the benchmark legislation of his predecessor, partly because the SJSN would have large fiscal
consequences that had not been anticipated by previous administration.
45 SJSN Law, 2004, art 5.
46 SJSN case, 2005: 19.
47 Constitution of Republic of Indonesia, art 18 and 18A.
48 SJSN case, 2005: 47.
180

The Court held that the SJSN was in compliance with the art 34(2) of the Constitution, which
requires the state to develop a national security system for the citizens. 49 The Court also ruled,
however, that the authority to administer the Social Security System lies not only with the central
government but also with regional governments. Therefore the SJSN may not prevent regional
governments from developing social security systems as sub-systems of the National Social
Security System. 50
Although the Executive invoked the right to social security in oral argument, the Court did not
address the issue in its judgment. The Court’s ruling thus has no significant impact on socio-
economic rights in Indonesia because it does not recognise a right to social security. There is a
constitutional guarantee of rights to social security in art 28H(3) but the Court decided the case
mostly on the grounds of the state’s duty to develop a social security system (art 34).
Article 33 Cases: Socio-economic rights prevailing?

Article 33 of the Indonesian Constitution provides:
(1) the economy shall be structured as a common endeavour based upon the family principle; (2) Branches
of production that are important to the state, and that affect the public’s necessities of life, are to be
controlled by the state; and (3) the earth and water and the natural resources contained within them are
to be controlled by the state and used for the common good. 51
David Law and Mila Versteeg in their analysis of constitutional convergence theory make reference
to the art 33. Law and Versteeg qualify the constitutional convergence theory by dividing national
constitutions along two major ideological lines, based on whether they have a more libertarian or
statist ideology (Law and Versteeg, 2011). In their study, Law and Versteeg classify the Indonesian
Constitution among the top 25 most modern statist constitutions in the world (Law and Versteeg,
2011). Law and Versteeg based their argument on art 33, which demands government regulation
and intervention in certain areas of rights, including the state’s control over natural resources for
the collective good (Law and Versteeg, 2011).
Article 33 has survived a sea of changes in Indonesian politics, from the left-leaning Soekarno
regime (1945-66) to the right-wing Soeharto New Order military regime (1966-98), and it continued
to survive in the post-authoritarian period after 1998. The constitutional reform process of the
early 2000s left the original version of art 33 untouched but added a new provision, which states
that: (4) ‘the organisation of the national economy shall be conducted on the basis of economic
democracy upholding the principles of togetherness, efficiency with justice, continuity,
environmental perspective, self-sufficiency, and keeping a balance in the progress and unity of the
national economy’. 52
Much has been written about the Court’s decisions on art 33 (Butt and Lindsey, 2009a; Butt
and Lindsey, 2009b) but these scholarly works do not address one key issue, specifically, whether
art 33 enables the Court to use its judicial review authority to expand socio-economic rights.
During the tenure of Chief Justice Jimly Asshiddiqie, the Court heard many cases related to art 33.
The Court’s decision in the Electricity Law case is the first case that involved art 33. 53 At dispute in
this case was the Electricity Law, which allowed the involvement of private enterprises in the
electricity industry. 54 The Court first ruled that it is up to the government and legislature to decide
what kind of important sector shall be controlled by the state and for how long a sector of
49 SJSN case, 2005: 263.

50 SJSN case, 2005: 264-65.
51 Constitution of Republic of Indonesia 1945, art 33(1, 2, 3). The English translation of art 33 is my own
translation. For a comparison, see the unofficial English translation of the Constitution of Republic
Indonesia issued by Indonesia’s State Secretariat, available at <www.setneg.go.id>.
53 Constitutional Court Decision No 001-021-022/PUU-I/2003 (the Electricity Law case).
54 Law No 20 of 2002 on Electricity (Ketenagalistrikan).
181

production can be considered an important sector, and such a decision can change over time. 55
Nevertheless, the Court found that none of the government officers or the legislature had ever
objected to electricity being seen as an important sector for the country that affects people’s lives. 56
The Court therefore held that electricity is an important sector for the country because it
constitutes a common good. 57 The Court decided to strike down the entire statute because the
involvement of private enterprises in electricity industry violated art 33(2). 58 The Court continued
to strike down the privatisation policies in the Oil and Gas Law I case. 59 One of the key issues in
this case was whether market mechanisms could properly govern fuel prices. The Court decided
that art 33 meant that the government, instead of market mechanisms, ought to regulate the fuel
prices. 60
These cases signify that the Court did not define any socio-economic rights protection in the art
33 related cases but, rather, required the State to control natural resources. In both the Electricity
case and the Oil and Gas I case, the claimants argued that the Law violated both art 33(2) and art
28H(1) of the Constitution. 61 Article 28H(1) is the key provision of socio economic rights but the
Court did not give any consideration to art 28H, instead simply deciding the cases based on art 33.
It was not clear why the Court did not consider art 28H(1) in its judgment but, looking at the
Court’s decisions on socio-economic issues, it seems common for the Court to ignore arguments
made by the parties.
Similarly, in the Water Resources Law I case, the Court again did not give any consideration to
art 28H(1). 62 The case involved the question of the constitutionality of the Water Resources Law
that accorded private corporations control over Indonesia’s water resources. 63 Apart from invoking
art 33, the claimant also argued that the privatisation of the water industry violated their socio-
economic rights under art 28H(1). Again the Court reversed the governmental policy on
privatisation based on art 33 but did not issue any ruling on art 28H. Furthermore, the Court held,
‘the state should guarantee the right of citizens to obtain access to water for daily life because
water is very important for human life, and moreover the right of water has been recognised by
United Nations as a human right’. 64 The decision did not define rights to water but, rather,
mandated the state to guarantee access to clean water for citizens. The Court held that
the government must respect, protect and fulfil right to clean water based on the guidelines provided by
the opinion of the Constitutional Court… Therefore if the Law is interpreted differently to the Court’s
guidelines, then it can be reviewed further (conditionally constitutional). 65
In other words, the Court held that as long as the government implements the law according to the
Court’s interpretation, the Law shall be declared constitutional but if the government implements
the Law in different way, the claimant may challenge the statute by seeking further review. 66
The Court’s inability to define the scope and meaning of socio-economic rights became more
apparent in the Investment Law case. 67 In 2007, the DPR enacted an Investment Law, which aimed
to attract foreign investment. 68 This Law made it easier for foreigners to obtain and extend various
55 Id at 335.
56 Id at 345.
57 Electricity Law case, 2003: 345. The Court used the term ‘hajat hidup orang banyak’. I have translated it
loosely as ‘the common good’.
59 Constitutional Court Decision No 002/PUU-I/2003 (the Oil and Gas Law I case).
60 Oil and Gas Law I case, 2003: 227.
61 See, the Electricity Law case, 2003: 12.
62 Constitutional Court Decision No 058-059-060-063/PUU-II/2004 (Water Resources Law I case).
63 Law No 7 of 2004 on Water Resources (Sumber Daya Air).
64 Water Resources Law I case, 2004: 492.
65 Ibid: 495.
66 Ibid.
67 Constitutional Court Decision No 21-22/PUU-V/2007 (the Investment Law case).
68 Law No 25 of 2007 on the Investment (Penanaman Modal).
182

land rights. It provided that (1) the right to Cultivate (hak guna usaha) may be granted for 95
years period; granted and extended 60 years in advance and renewable for another 35 years; 69 (2)
the right to build (hak guna bangunan) may be granted for a period of 80 years, granted and
extended 50 years in advance and renewable for another 30 years; 70 and (3) the right to use (hak
pakai) may be granted for 70 years period; granted and extended 45 years in advance and
renewable for another 25 years. 71
The claimants in this case were NGOs and individuals who challenged the up-front land right
extensions provisions of the Investment Laws on the grounds that they violated art 33(2 and 3).
The claimants also argued that they were marginalised groups vulnerable to government policy
that was favourable to big investors, and that the Investment Law therefore violated their rights to
live in physical and spiritual prosperity under art 28H(1). 72
The Court held that land was clearly a natural resource within art 33(3), and therefore the
state was required to control land. 73The Court invalidated the advance extension provisions in the
Investment Law on the grounds that they had the potential to reduce or remove state control. 74
Again, the Court left art 28H(1) untouched and did not address the issue of right to live in physical
and spiritual prosperity.
All these cases show the Court to be incognisant of the distinction between socio-economic
rights and state control over natural resources for the collective good. One plausible explanation is
that the Court felt more familiar with art 33 than art 28H. In any case, whatever the reasons, the
Court never defined the scope and meaning of socio-economic rights in these cases.
The Chairmanship of Mohammad Mahfud

The DPR appointed Mohammad Mahfud Mahmodin (commonly known as Mahfud MD) 75 as a
justice of the Constitutional Court in April 2008, and, as mentioned, he became the second Chief
Justice of the Constitutional Court four months later. 76 In this section, I will analyse some of the
major decisions of the Mahfud court in the area of socio-economic rights.
Right to education
Unlike the Asshiddiqie court, the Mahfud court did not have to deal with many cases that involved
the education budget. It, nonetheless, issued two important decisions in education-related cases.
The first case was the BHP case, 77 a challenge to the 2008 Law on Educational Legal Entities. 78
This Law required that universities be ‘Educational Legal Entities’ (Badan Hukum Pendidikan). 79
Previously, state universities were under the control of government bureaucracies but with their
new status as a legal entity, public universities now had the autonomy to regulate themselves and
finance their activities, which include raising financial support from private enterprises
(Kusumadewi and Cahyadi, 2013).
The claimants argued that the new Law would make public universities susceptible to the
interests of corporations and would eventually lead to the privatisation of state universities. They
69 Ibid, art 22 (1a).

70 Ibid, art 22 (1b).
71 Ibid, art 22 (1c).
72 Investment Law case, 2007: 53.
73 Ibid: 262-63.
74 Ibid: 262-63.
75 Mahfud rarely uses his complete name Mohammad Mahfud Mahmodin, so in this paper I just use
Mohammad Mahfud. Mahfud explains that the name, Mahmodin, is basically his father’s name and his
primary school teacher added the name to his original name in order to distinguish him from other
students who were also named Mahfud. See Irawan, 2014: 87 -88.
76 For a detailed analysis of the rise of Mohammad Mahfud, see Hendrianto, forthcoming 2016.
77 Constitutional Court Decision No 11-14-21-126-136/PUU-VII/2009 (the BHP case).
78 Law No 9 of 2009 on Legal Educational Entities (Badan Hukum Pendidikan).
79 For a detailed analysis of the adoption of the BHP Law, see Kusumadewi and Cahyadi, 2013.
183

also argued that the BHP Law violated the constitutional right to education under art 31, as it
would make universities less accessible to the poor. The Court unanimously agreed with the
claimant that the BHP Law was contrary to the Constitution because the new status of
‘Educational Legal Entities,’ would reduce the access of underprivileged people to higher public
education. Nevertheless, the Court did not frame the decision in the context of rights to education
under art 31(1) but rather ruled that the state has a constitutional duty to manage and organise a
system of national education with the aim of increasing the ‘moral character’ of the nation, as
stipulated by art 31(3). 80
The Court also ruled that the BHP Law violated the freedom of association under art 28E(3), 81
by stipulating that all higher education institutions should be organised as ‘higher educational
legal entities’. 82 The Court held that the legislature cannot ban a higher education institution that
chooses to organise itself as partnership (perserikatan) or association (perkumpulan). 83 Instead of
defining the scope and meaning of rights to education, the Court thus decided the BHP case on the
ground of freedom of association.
Three years after the BHP case, the Mahfud court issued another major decision in the
International School case. 84 The National Education System Law required that all municipalities
and districts in Indonesia to have at least one ‘international standard’ state schools (satuan
pendidikan yang bertaraf internasional). 85 NGOs, parents and teachers’ union challenged this
provision on the ground that it violated the right to education. 86 The Court agreed and held this
provision unconstitutional because the state has the responsibility to ensure education for its
citizens, which includes an education system that can be accessed by all citizens. 87 The Court was
also concerned that international schools could charge higher fees than other public schools,
thereby precluding enrollment by students from disadvantaged families. 88
In the International School case, the Court’s ruling on the right to education was narrow. The
Court emphasised the state’s obligation to provide good education, instead of upholding individual
rights to education. Moreover, the Court employed a notion of ‘identity crisis’. 89 The Court,
assuming that international schools teach in languages other than Indonesian, held that ‘the
international school program will degrade and reduce the love for national language and culture,
which eventually threaten national identity’. 90 The Mahfud court thus made no progress in
defining the scope and meaning of rights to education. Instead of moving to solidify the notion of
rights to education, the Court was busy employing other arguments.
Right to Social Security

One of the major cases dealing with rights to social security under the Mahfud court was the SJSN
IV case, which dealt with the workers’ participation provisions of the SJSN Law. 91 In 1992, the
80 BHP case, 2009: 385.

81 Article 28E(3) provides, ‘Every person shall have the right to the freedom to associate, to assemble and to
express opinions’.
82 BHP case, 2009: 386.
83 Ibid.
84 Constitutional Court Decision No 5/PUU-X/2012 (the International School case).
85 National Education System Law, art 53(3).
86 Constitutional of Republic of Indonesia 1945, art 31 (1,2, and 3).
87 International School case, 2012, 194-96.
88 Ibid: 194-95.
89 Ibid: 195.
90 Ibid.
91 Constitutional Court Decision No 70/PUU-IX/2011 (the SJSN IV case). Apart from this case, the Mahfud
court dealt with a series of cases that involved social security matters. See Constitutional Court Decision
No 50/PUU-VIII/2010 (the SJSN II case); Constitutional Court Decision No 51/PUU-IX/2011 (the SJSN
III case); Constitutional Court Decision No 70/PUU-IX/2011 (the SJSN IV case); and Constitutional Court
Decision No 82/PUU-X/2012 (the SJSN V case).
184

Indonesian government enacted the Law on Social Insurance for Private Sectors Workers. 92 The
government then established a state-owned company - PT Jamsostek - to manage social insurance
for the private sector workers. 93 PT Jamsostek was, however, unable to effectively provide social
protection to private sector workers. Since its inception, it had registered only 24 million of 35
million workers in the private sector, and only 9.2 million of the paid workers employed in the more
than 11,000 companies that have remained active in social security programs (Sijabat, 2010). In
2004, the government passed a new law on the National Security Social Security System (Sistem
Jaminan Sosial Nasional or SJSN). The SJSN Law provides that employers must register their
employees as participants in a social security program under which they would be entitled to
receive the benefits bestowed by the program. 94
Some labour unions went to the Court and challenged the worker participation provision in the
SJSN Law. They argued that every citizen has the right to social security as guaranteed by art
28H(3) of the Constitution, however, the SJSN Law has curtailed those rights, as the fulfilment of
social security rights would be dependent upon the employers’ good faith in registering their
employees in the program. 95 The Court ruled that the provision was unconstitutional as long as it
was interpreted as a way to eliminate workers’ rights to register in the social security program
when their employers failed to register them. 96 It ruled that the provisions should be interpreted as
follows: employers must register their employees as participants in a social security program but
workers have the right to register in a social security program if their employers fail to register
their employees with the Social Security Administrative Body. 97
The Court’s decision might seem odd because it provided a new interpretation of the Law
instead of striking down the challenged provision. Under the tenure of Chief Justice Asshiddiqie,
the Court began to adopt a technique called ‘condition constitutionality,’ under which it allowed a
Law to remain valid as long as it was applied or implemented in the way the Court had interpreted
it (Butt and Lindsey, 2012: 138). The SJSN IV case was an example of how the Court employed the
conditionally constitutional technique. It is beyond the scope of this paper to analyse this technique
in detail but the Mahfud court seemed to move a step ahead in addressing the scope and meaning
of rights to social security. In its judgment, the Court ruled that the provision was contrary to art
28H(3), which guarantees the right to social security. According to the Court, the SJSN Law does
not guarantee the fulfilment of rights to social security because employers could refuse to register
their employees in the Social Security Program. 98
Once again, however, the Court diluted the significance of its decision for understanding the
nature of the right to social security by referring to state obligations and equality arguments in its
judgment. Although the Law imposed penalties for employers who refused to register their
employees, many employers did not comply with the law. 99 Moreover, the Law only imposed
penalties for employers but did not create a mechanism to guarantee that workers could enjoy their
rights to social security. 100 The Court held that this legal arrangement was contrary to art 28D(1),
which guarantees that every citizen has the rights of recognition, guarantees, protection and equal
treatment before the law. 101 Further, the Court explained that the state has responsibility to
provide human rights protections, on the basis of art 28I of the 1945 Constitution. 102 In sum, the
92 Law No 3 of 1992 on Social Insurance for Private Sectors Workers (Jaminan Sosial Tenaga Kerja).
93 Government Regulation No 36 of 1995 on Social Security Administrative Body (Penetapan Badan
Penyelenggara Program Jaminan Sosial Tenaga Kerja).
94 SJSN Law, art 13(1).
95 SJSN IV case, 2011, 7.
96 Ibid: 44.
97 Ibid.
98 SJSN IV case, 2011, 40.
99 Ibid.
100 Ibid.
101 Ibid.
102 Article 28I(4) provides that ‘the protection, advancement, upholding and fulfilment of human rights are
the responsibility of the state, especially the government’.
185

Mahfud court ruled that the SJSN does guarantee a right to social security but, at the same time, it
replayed its old argument that social security is a state obligation instead of an individual right.
Article 33 cases: pseudo socio-economic rights continued

Like the Asshiddiqie court, the Mahfud court had also to deal with the interpretation of art 33. The
biggest challenge was whether the Mahfud court could distinguish between state control over
natural resources and individual rights to enjoy the fulfilment of their social-economic rights. The
first case that was decided by the Mahfud court on art 33 was the Animal Health and Husbandry
case. 103 In 2009, the DPR passed the Animal Health and Husbandry Law that allowed the import
of beef and cattle from disease-free zones, regardless of the disease status in the country as a whole.
NGOs and individual farmers challenged key provisions of this Law, such as art 59(2), which
provides that live animals imported to Indonesia must come from a country or a zone within a
country that already fulfils the health standard. 104 The claimants argued that the law violated art
28H(1), which guarantees a right to physical and spiritual prosperity and a right to a healthy
environment. Moreover, they claimed that it also violated art 33(4), which provides that the
national economy shall be conducted on the basis of economic democracy. 105 The claimants posited
that the law was not effective in preventing animal diseases entering Indonesia because it
abolished a maximum security principle that aimed to prevent the importation of live animals from
countries contaminated with animal diseases. 106 The claimants argued that the Law could harm
consumers, local farmers and eventually the Indonesian economy because of the possibility of the
spread of Food and Mouth diseases from unsafe countries. 107
The Court agreed with the claimants and declared that the phrase, ‘a zone within a country’ in
art 59(2) was unconstitutional. The Court considered that the import of live animals from a country
or a zone within a country is an imprudent and dangerous policy because the disease may spread
into the relevant zone from unsafe parts of the country. 108 As Simon Butt and Tim Lindsey (2012:
264) have noted, the Court did not specify which constitutional provisions were breached by art
59(2). They argue that it is reasonable to speculate that the Court framed its decision based on art
33 (Butt and Lindsey, 2012: 264), under which the Court held that ‘in a welfare state, the
government must participate in running the economy including by establishing protectionist
regulations and encouraging the protection of the public good’. 109 They suggest that the Court never
addressed the issue of whether the Animal and Husbandry Law threatened the claimant’s right to
enjoy physical and spiritual prosperity and a healthy environment as guaranteed by art 28 H(1) of
the Constitution.
The second major art 33 case decided by the Mahfud court was the Oil and Gas III case. 110 The
claimants in this case were twelve Islamic-based organisations and 30 individuals, chiefly led by
Muhammadiyah, one of the largest Islamic organisations in the country. The claimants challenged
some key statutory provisions that mandated the government to establish a Regulatory Agency to
supervise the oil and gas upstream sector. 111 They argued that these statutory provisions reduced
state control over natural resources and meant they cannot be used to the greatest benefit of the
people as mandated by the art 33(3). 112 Moreover, the claimants argued that the government’s
103 Constitutional Court Decision No 137/PUU-VII/2009 (the Animal Health and Husbandry case).
104 Law No 18 of 2009 on the Animal Health and Husbandry (Peternakan dan Kesehatan Hewan), art 59(2)
105 Animal Health and Husbandry case, 2009: 5.
106 Ibid: 9-10.
107 Ibid: 11 -13.
108 Ibid: 133.
109 Animal Health and Husbandry case, 2009: 132.
110 Constitutional Court Decision No 36/PUU-X/2012 (the Oil and Gas III case).
111 Oil and Gas Law, art 1 (23) and art 4(3).
112 Oil and Gas III case, 2012: 15.
186

policy of privatising the oil and gas industries infringed upon their constitutional rights to enjoy
physical and spiritual prosperity as guaranteed by art 28H(1). 113
On the merits of the case, the Court decided to disband the Regulatory Agency and held that
the establishment of the Regulatory Agency reduced state control over petroleum resources. The
Court ruled that whenever the Regulatory Agency entered into a production sharing contract, the
state would be bound the contract, and consequently, would lose its liberty to pass statutory
regulations or policies that were contrary to the contracts. 114 Like the Asshiddiqie court, the
Mahfud court once again left art 28H(1) untouched and issued a ruling based solely on art 33.
The Chairmanship of Akil Mochtar, Hamdan Zoelva and Arief Hidayat

On 1 April 2013, Chief Justice Mahfud officially resigned from his position and was succeeded by
Chief Justice Akil Mochtar (Hendrianto, 2013a). Mochtar held the position of Chief Justice for just
six months before he was removed on corruption charges (Hendrianto, 2013b). After the removal of
Mochtar, Deputy Chief Justice Hamdan Zoelva took over leadership of the Constitutional Court but
only held the position of Chief Justice for a little over year, as the new President Joko Widodo did
not nominate him for a second term (Hendrianto, 2015). 115 On 12 January 2015, the Constitutional
Court Justices unanimously elected Arief Hidayat as the new Chief Justice. In this section, I will
briefly review two major decisions of the Court on socio-economic rights in the last two years, a
period when the Court was led by three different Chief Justices.
On 12 August 2013, the Court under the leadership of Akil Mochtar finished its deliberation
meeting on the Private Hospital Case 116 but then took more than six months before announcing its
decision. By the time it did so, on 22 May 2014, it was already under the Chairmanship of Hamdan
Zoelva. In this case, Muhammadiyah, one of the largest Islamic organisations in the country
challenged art 7(4) of the Hospital Law, which provided that the private hospitals can only be set
up by private legal entities that operate solely in the hospital industry (bidang perumahsakitan). 117
The claimant also challenged art 21, which provided that all private hospitals must be run by
profit-oriented legal entities in the form of limited companies. 118
Muhammadiyah is an Islamic non-profit organisation and it runs 78 hospitals, which already
have permits and the legal status to operate. This Law threatened to jeopardise these hospitals
because they were not owned by a private corporation (Jakarta Post, 2013). Muhammadiyah
invoked the argument that the Hospital Law violated the socio-economic rights provision in the
Constitution, especially the right to health care under art 28H(1). 119 It also argued that the Law
violated the right to receive similar opportunities and benefits in order to achieve equality and
fairness and property rights. 120
The Court ruled that the Law would cripple the claimant’s ability to provide health care
services and this situation would potentially deprive many people of health care services. 121 The
Court held the Law to be ‘conditionally unconstitutional’ unless it provided an exception for
hospitals run by non-profit corporations (badan hukum yang bersifat nirlaba). 122 As mentioned
earlier, since the tenure of Chief Justice Asshiddiqie, the Court had adopted the ‘conditionally
constitutional’ technique to allow a statute to remain valid as long as it was applied or
113 Ibid: 9-12.

114 Ibid: 105.
115 The Constitution distributed the appointment power equally among the three branches of the
government. The President, the House of Representatives (Dewan Perwakilan Rakyat – DPR), and the
Supreme Court all possess authority to appoint three Constitutional Court Justices each.
116 Constitutional Court Decision No 38/PUU-XI/2013 (the Private Hospital case).
117 Law No 44 of 2009 on Hospitals (Rumah Sakit), art 7(4).
118 Ibid, art 21.
119 Private Hospital case, 2013, 11-12.
120 Ibid: 11-12.
121 Ibid: 82.
122 Ibid: 84.
187

implemented in the way the Court interpreted it (Butt and Lindsey, 2012: 138). In the Private
Hospital case, however, the Court employed a different technique, holding the Law to be
‘conditionally unconstitutional’ unless it satisfied the condition prescribed by the Court. In any
case, regardless of the application of ‘conditionally unconstitutional’ technique, the Court did not
define the scope and meaning of right to health care. The Court thus again missed an opportunity
to grant robust protection of socio-economic rights to Indonesian citizens.
The second case is the Water Resources Law II case. 123 The Court finished its deliberation
meeting on 17 September 2014 under the Chairmanship of Hamdan Zoelva but it was Chief Justice
Arief Hidayat who announced the decision on 18 February 2015. The claimant was again
Muhammadiyah, the Islamic organisation that has been in the forefront of constitutional litigation
in Indonesia. Muhammadiyah has long considered itself in the path of the struggle for social justice
in Indonesia, and, since its involvement in the Oil and Gas III case, Muhammadiyah called judicial
review a ‘constitutional jihad’ that is part of their ‘great legal struggle’ (The Jakarta Post, 2012). At
the centre of dispute is the issuance of a Government Regulation on the Water Supply System,
which allows private corporations to manage water resources. 124 The Regulation was based on art
40(2) of the Water Resources Law, which provides that water supply system shall be managed by
the central government and regional governments. Muhammadiyah argued that the Law violated
their socio-economic rights under art 28H(1) and, more importantly, deprived the state of control
over water as mandated by art 33(2 and 3). 125 The claimant framed its petition in the context of the
Court’s previous decision in the Water Resources Law I case.
In the Water Resources Law I case, the Court provided guidelines on how the executive branch
should manage the water resources. 126 The Court ruled that the government had obligations to
fulfil citizen’s access to clean water in several ways: first, by issuing licenses for water usage and
providing daily supply and irrigation for community farming (pertanian rakyat). Second, regional-
owned water companies should be positioned as the state’s operational unit, not profit-oriented
companies. Finally, responsibility to provide clean water lay primarily with the central government
and regional governments. Private enterprises and cooperatives are only permitted to participate if
the government is unable to provide clean water itself. 127
In the Water Resources II case, the claimant posited that the Executive did not follow the
guidelines prescribed by the Court. The claimant pointed to the issuance of the Government
Regulation on the Water Supply System, which provides that the water supply system shall be
managed by the State Owned Enterprises (Badan Usaha Milik Negara - BUMN) or Regional
Owned Enterprises (Badan Usaha Milik Daerah – BUMD), cooperatives, private corporations or
local communities (kelompok masyarakat). 128 The claimant argued that the Executive had cheated,
creating a privatisation in disguise by allowing private corporations to get involved in the water
industry. 129
The Court concurred with the claimant and held that the Executive had not fulfilled the Court’s
prescriptions in the Water Resources Law I, when it introduced a series of government
regulations. 130 Since the Court’s decision in the Water Resources Law I case, the Yudhoyono
administration had issued six different governmental regulations that aimed to implement the
Water Resources Law. 131 Although the claimant disputed only one of those six regulations, the
123 Constitutional Court Decision No 85/PUU-XI/2013 (the Water Resources Law II case)
124 Government Regulation No 16 of 2005 on the Water Supply System (Sistem Penyediaan Air Minum).
125 Water Resources Law II case, 2013: 9.
126 Water Resources Law I case, 2004: 492.
127 Ibid: 492.
128 Water Resources Law II case, 2013: 20.
129 Ibid: 20.
130 Ibid: 144.
131 Government Regulation No 16 of 2005 on Drinking Water Supply System (Pengembangan Sistem
Penyediaan Air Minum); Government Regulation No 20 of 2006 on Irrigation (Irigasi); Government
Regulation No 42 of 2008 on Water Supply Management (Pengelolaan Sumber Daya Air); Government
Regulation No 43 of 2008 on Groundwater (Air Tanah); Government Regulation No 38 of 2011 on Rivers
188

Court considered all the regulations in its judgment. The Court ruled that none of them followed
the guidelines prescribed by the Court in the Water Resources Law I case. 132 It, therefore, declared
the Water Resources Law unconstitutional in its entirety. 133
In this case, the Court was mostly judging the application of the Water Resources Law by the
Executive instead of reviewing the scope and meaning of water rights protection under the
Constitution. The Court’s decision seemed quite radical considering that it has no jurisdiction to
review the application of the Law by the executive, only the content of statutes. There is a plausible
explanation for this radical decision. Under the chairmanships of Asshiddiqie and Mahfud, the
Court expanded its jurisdiction in many different ways. 134 It was not a great surprise that the
Zoelva court followed the path set by his predecessors of gradually expanding the Court’s
jurisdiction.
Conclusion
In his critical response to David Law’s theory of a ‘race to the top,’ Mark Tushnet (2009) poses a
question: is it really a race to the top, to the bottom, or to somewhere else? Having reviewed some of
the major Indonesian Constitutional Court decisions on socio-economic rights in the last decade, I
conclude that the Indonesian Constitutional Court is neither joining the race to the top nor to the
bottom. The fact of the matter is that the Indonesian Constitutional Court is a wandering court. By
this, I mean that it is a court that is unwilling or unable to develop a clear doctrine on socio-
economic rights, like other courts in new democracies. In other words, this is the Court that moves
without a definite destination or purpose in terms of its jurisprudence on socio-economic rights.
The Asshiddiqie court, the Mahfud court and the Zoelva court shared a similar trait in socio-
economic rights cases. They never defined the scope and meaning of socio-economic rights and, in
particular, whether socio-economic rights might be ‘positive,’ entitling the rights holder to demand
that enjoyment of the rights be ensured. Instead, the Court relied heavily on the notion of a state
duty to fulfil citizens’ rights. Rather than declaring that rights-holders can demand enjoyment of
their socio-economic rights, the Court repeatedly ruled that the state has duty to fulfil socio-
economic rights.
Why does the Indonesian Constitutional Court seem to be incognisant of the scope and
meaning of socio-economic rights as individual rights? To answer this question, I will compare the
Indonesian Constitutional Court with a court that has produced a robust jurisprudence on socio-
economic rights: the Colombian Constitutional Court (Landau, 2012). One of the reasons for this
Court’s capacity to develop robust socio-economic rights jurisprudence is a device called the tutela:
a constitutional complaints mechanism that allows citizens harmed by government actions in
violation of their constitutional rights to bring suit. 135 The tutela helped the Court develop and
(Sungai); and Government Regulation No 73 of 2013 on Swampland (Rawa).

132 Water Resources Law II case, 2013 144.
133 Ibid: 145.
134 There have been many instances when the Court has expanded its jurisdiction; in 2004, the
Constitutional Court reviewed a challenge to art 50 of the Constitutional Court Law, which stated that
the Court could only review statutes enacted after 19 October 1999. The Court moved swiftly to declare
art 50 unconstitutional and invalidated it entirely: Constitutional Court Decision No 066/PUU-II/2004,
reviewing Law No 1 of 1987 on the Chamber of Commerce (the Chamber of Commerce Law case).
Likewise, in 2009, Chandra Hamzah and Bibit Riyanto, commissioners of the Anti-Corruption
Commission asked the Court to issue an interim injunction to prevent their dismissal before the Court
could decide criminal allegations against them. Basically, the Court had no authority to issue an
injunctive remedy to prevent the criminal investigation of Hamzah and Riyanto. Its authority was limited
to pronouncing on the constitutionality of a statute and issuing appropriate declaratory remedies.
Surprisingly, the Court decided that it could issue an injunction: Constitutional Court Decision No
133/PUU-VII/2009, reviewing Law No 30 of 2002 on the Anti-Corruption Commission Law (the Hamzah
and Riyanto case).
135 The 1991 Colombian Constitution, art 86 states, ‘Every person has the right to file a tutela before a judge,
189

enforce socio-economic rights as fundamental rights (Landau, 2012: 206). Under the Colombian
tutela the Court will give a single remedy to a single plaintiff for a health care treatment, pension
or subsidy. Similarly, many courts appear to give individualised remedies when an individual
plaintiff comes to the court asking for provision of particular medicine or treatment, and courts
grant him or her relief (Landau, 2012: 199).
The Indonesian Constitutional Court does not provide any constitutional complaint mechanism
like the Colombian tutela. Although the Constitutional Court Law allows individual citizens to file
a claim before the Court, the claimants can only challenge statutes in abstract way rather than to
resolve a concrete constitutional case. By challenging the statute in abstract way, the claimant will
not be able to receive individualised remedies. For example, in the series of right to education
cases, the teachers’ union (PGRI) asked the Court to declare state budget unconstitutional but
could not ask the Court to grant them individualised relief, such as an increase in their salaries.
Similarly, in the Oil and Gas III case, Muhammadiyah asked the Court to disband the Regulatory
Agency on Oil and Gas because the privatisation of oil and gas industry had infringed their rights
to enjoy physical and spiritual prosperity. Muhammadiyah, however, could not demand the Court
to give them individualised benefits from the Oil and Gas subsidies. The bottom line is that the
lack of a constitutional complaint mechanism has led the Court to neglect the necessity to
designate social-economic rights as individual rights.
The second plausible explanation for the lack of a robust body of jurisprudence on socio-
economic rights is the existence of art 33. As explained earlier, the Indonesian Constitution
contains only one article on socio-economic rights, which is limited to rights to housing, healthy
environment, medical care, 136 and the right to social security. 137 This provision was somewhat
overshadowed by art 33, which granted the state broad control over natural resources, rather than
guaranteeing an individual socio-economic right.
In order to understand the significance of art 33, the analysis of the statist constitutionalism of
David Law and Mila Versteeg (2011) should be taken into account. Law and Versteeg explain that
statist constitutionalism not only permits, but expects, government regulation and intervention in
certain areas of rights, such as control by the state over natural resources for the collective good, as
well as the right to marry and establish a family (Law and Versteeg, 2011: 1225). Prior to the
constitutional reform that took place in late 1990s and early 2000s, Indonesia was ranked 21st in
Law and Versteeg’s study. 138 After the constitutional reform took place, Indonesia jumped to the 7th
place in the ideological ranking of the world’s statist constitutions (Law and Versteeg, 2011: 1227).
Law and Versteeg’s analysis is an important tool to understand the nature of art 33 as the
manifestation of statist Constitutionalism, which demands state control over natural resources
instead of empowering citizens to demand enjoyment of their rights. In the last decade, the
Indonesian Constitutional Court has persistently advocated statist constitutionalism under art 33,
at the expense of socio-economic rights.
Another reasonable speculation for the special place of art 33 in the Court’s jurisprudence is the
legacy and influence of the first Chief Justice Jimly Asshiddiqie. Asshiddiqie wrote his doctoral
dissertation on art 33, in which he emphasised the doctrinal meaning of art 33 in light of the notion
of popular sovereignty (Asshiddiqie, 1994). Asshiddiqie believed that art 33 required government
intervention to guarantee people’s welfare, and therefore emphasised the role of state-owned
at any time or place, through a preferential and summary proceeding, for himself/herself or by whomever
acts in his/her name for the immediate protection of his/her fundamental constitutional rights when that
person fears the latter may be violated by the action or omission of any public authority’.
136 Constitution of the Republic of Indonesia 1945, art 28H(1)
137 Constitution of the Republic of Indonesia 1945, art 28 H(3)
138 Law and Versteeg (2011) only examined the 1945 Constitution after its reinstatement in 1959. They did
not examine the two Constitutions prior to the reinstatement in 1959: the 1949 Constitution of the
Federal Republic of Indonesia and the 1950 Parliamentary Constitution.
190

enterprises in controlling sectors of production that affect the lives of many people. 139 Under the
leadership of Chief Justice Asshiddiqie, the Court adopted this view. The Court appeared to be
convinced that by invoking art 33 it had moved to protect socio-economic rights. The fact of the
matter is the Court never established a definition of socio-economic rights as fundamental rights.
The Departure of Chief Justice Asshiddiqie did not, however, stop the confusion of art 33 and socio-
economic rights. The Mahfud court continued to treat art 33 as the source of socio-economic rights
and neglected the socio-economic rights provisions under art 28H.
In sum, the constitutional reform that took place in the late 1990s and early 2000s added a
written constitutional guarantee of fundamental rights, which includes socio-economic rights. The
adoption of socio-economic rights does not, however, necessarily mean that Indonesian
constitutionalism is joining the global trend of constitutional convergence. The Court’s rulings on
socio-economic rights indicate that convergence has never taken place but, instead, divergence has
occurred. The Court has indeed borrowed the notion of socio-economic rights but it has interpreted
socio-economic rights in a totally different way from the notion of individual private rights.
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191

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Legislation
Law No 3 of 1992 on Social Insurance for Private Sectors Workers (Jaminan Sosial Tenaga Kerja).
Law No 20 of 2002 on Electricity (Ketenagalistrikan).
Law No 20 of 2003 on the National Education System (Sistem Pendidikan Nasional).
Law No 23 of 2003 on the Constitutional Court (Mahkamah Konstitusi)
Law No 7 of 2004 on Water Resources (Sumber Daya Air).
Law No 40 of 2004 on the National Social Security System (Sistem Jaminan Sosial Nasional)
Law No 13 of 2005 on the State Budget for Fiscal Year (Anggaran Pendapatan dan Belanja Negara).
Law No 18 of 2006 on the State Budget for Fiscal Year (Anggaran Pendapatan dan Belaja Negara).
Law No 25 of 2007 on the Investment (Penanaman Modal).
Law No 9 of 2009 on Legal Educational Entities (Badan Hukum Pendidikan).
Law No 18 of 2009 on the Animal Health and Husbandry (Peternakan dan Kesehatan Hewan)
Law No 44 of 2009 on Hospitals (Rumah Sakit)
Court Cases
Constitutional Court Decision No 001-021-022/PUU-I/2003 (the Electricity Law case).
Constitutional Court Decision No 002/PUU-I/2003 (the Oil and Gas Law I case).
Constitutional Court Decision No 058-059-060-063/PUU-II/2004 (Water Resources Law I case).
Constitutional Court Decision No 007/PUU-III/2005 (the SJSN I case).
Constitutional Court Decision No 026/PUU-III/2005 (the Education Budget II case).
Constitutional Court Decision No 026/PUU-IV/2006 (the Education Budget III case).
Constitutional Court Decision No 21-22/PUU-V/2007 (the Investment Law case).
Constitutional Court Decision No 024/PUU-V/2007 (the Education Budget IV case).
Constitutional Court Decision No 13/PUU-VI/2008 (the Education Budget V Case)
Constitutional Court Decision No 11-14-21-126-136/PUU-VII/2009 (the BHP case).
Constitutional Court Decision No 137/PUU-VII/2009 (the Animal Health and Husbandry case).
Constitutional Court Decision No 50/PUU-VIII/2010 (the SJSN II case)
Constitutional Court Decision No 51/PUU-IX/2011 (the SJSN III case)
Constitutional Court Decision No 70/PUU-IX/2011 (the SJSN IV case)
Constitutional Court Decision No 5/PUU-X/2012 (the International School case).
Constitutional Court Decision No 36/PUU-X/2012 (the Oil and Gas III case).
Constitutional Court Decision No 82/PUU-X/2012 (the SJSN V case).
192

Constitutional Court Decision No 38/PUU-XI/2013 (the Private Hospital case).

Constitutional Court Decision No 85/PUU-XI/2013 (the Water Resources Law II case)
193

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Australian Journal of Asian Law, 2016, Vol 16 No 2, Article 5: 173-193

The Divergence of a Wandering Court: Socio-Economic

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Background on the Indonesian 1945 Constitution and Constitutional Court

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Socio-Economic Rights: Vibrant or Unsettled Jurisprudence?

7 Partai Demokrasi Indonesia – Perjuangan (Indonesian Democratic Party of Struggle).

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The Chairmanship of Jimly Asshiddiqie

10 Constitution of Republic of Indonesia 1945, art 31(1).

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16 Constitution of Republic of Indonesia 1945, art 28D(2).

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Right to Social Security

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Article 33 Cases: Socio-economic rights prevailing?

49 SJSN case, 2005: 263.

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The Chairmanship of Mohammad Mahfud

69 Ibid, art 22 (1a).

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Right to Social Security

80 BHP case, 2009: 385.

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Article 33 cases: pseudo socio-economic rights continued

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The Chairmanship of Akil Mochtar, Hamdan Zoelva and Arief Hidayat

113 Ibid: 9-12.

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(Sungai); and Government Regulation No 73 of 2013 on Swampland (Rawa).

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Sociological Association Blog, 29 June <www.isa-sociology.org>.

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Constitutional Court Decision No 38/PUU-XI/2013 (the Private Hospital case).

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