Moac 014

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What constitutes compliance?

Legislative responses to
Constitutional Court decisions in
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Indonesia
Simon Butt* and Prayekti Murharjanti**
This article examines how the government responds to decisions of the Indonesian
Constitutional Court, focusing on the legislature. While Indonesian law requires that
Constitutional Court decisions be followed up by legislation, we argue that most of them in
fact require no legislative response, despite consistent complaints of legislative inaction from
commentators and even the Court itself. Instead, if these decisions are followed up at all,
they are more commonly reflected in regulatory instruments and judicial decisions, some of
which have been inconsistent and have therefore undermined the effectiveness of the Court’s
constitutional review function. We show that reliance on the legislature for a response can
even be dangerous. Using two case studies, we demonstrate how the legislature has simply
revived provisions the Court invalidated. The legislature has even added provisions that were
inconsistent with the tenor of the Court’s decisions and that appear to reflect the commercial
or institutional interests of drafters and worsen the constitutional damage the challenge was
brought to address. This suggests that constitutional review can be counterproductive in the
Indonesian context, if the legislative response is at odds with the interests of those bringing
the challenge.
1. Introduction
Since 2000, Indonesia’s Constitution has included a broad range of civil, political,
social, and economic rights. In 2003, a Constitutional Court was established with
powers of constitutional review to ensure that national legislation does not violate
those rights. But having constitutional review, even if professionally exercised by a
superior court, will not, of itself, protect constitutionalized rights. For a system of
* Professor of Indonesian Law, University of Sydney Law School, Sydney, Australia. Email: simon.butt@
sydney.edu.au. Part of this research was funded by an Australian Research Council Future Fellowship.
** Indonesian Centre for Environmental Law, Jakarta, Indonesia. Email: prayekti.murharjanti@gmail.com.
I•CON (2022), Vol. 20 No. 1, 428–453 https://doi.org/10.1093/icon/moac014

What constitutes compliance? Legislative responses to Constitutional Court decisions in Indonesia 429
constitutional review to be effective, the government must comply with the constitu-
tional review decisions of that court.1
The extent to which the Indonesian government complies with Constitutional
Court decisions has attracted little scholarly attention. Our article seeks to fill this
gap. Most English-language literature about the Court does not have compliance
as its focus, examining instead the Court’s: decisions about particular issues,2 deci-
sion-making practices and reasoning,3 leadership,4 influences,5 and contributions to
Indonesia’s political system.6 Authors have identified examples of non-compliance—

even deliberate government circumvention—but many have concluded that, overall,
the government has followed the Court’s decisions, despite the Court having no formal
enforcement powers.7
By contrast, a developing body of Indonesian literature focusing on compliance is
more circumspect in its assessment, suggesting that the government’s responses have
been variable.8 Even research the Court itself has supported has found that many of its
decisions are disobeyed, rendering them ineffective.9 Chief Justice Usman mentioned
this research in January 2020 when launching the Court’s 2019 annual report. In at-
tendance, among many dignitaries were the heads of the three arms of national gov-
ernment: President Joko Widodo, national parliament speaker Puan Maharani, and
Supreme Court Chief Justice Hatta Ali. Before them, Chief Justice Usman announced
the main finding of this research: only around 50% of the Court’s decisions in
2013–2018 had been adhered to (dipatuhi) by the government.10 Others were only
partially followed and about one third appeared to have been simply ignored. Chief
1
Alec Stone Sweet, Constitutional Courts, in The Oxford Handbook of Comparative Constitutional Law 816,
825 (Michel Rosenfeld & Andras Sajo eds., 2012); Andrew Harding, Peter Leyland, & Tania Groppi,
Constitutional Courts: Forms, Functions and Practice in Comparative Perspective, in Constitutional Court:
A Comparative Study 24 (Andrew Harding & Peter Leyland eds., 2009).
2
For example, on the Constitutional Court and religion, Melissa Crouch, Law and Religion in Indonesia: The
Constitutional Court and the Blasphemy Law, 7 Asian J. Comp. L. 1 (2012).
3
Simon Butt, The Constitutional Court and Democracy in Indonesia (2015).
4
Stefanus Hendrianto, Law and Politics of Constitutional Courts: Indonesia and the Search for Judicial
Heroes (2018).
5
Nadirsyah Hosen, The Constitutional Court and “Islamic” Judges in Indonesia, 16 Austl. J. Asian L. (2016),
https://ssrn.com/abstract=2744396.
6
M. Mietzner, Political Conflict Resolution and Democratic Consolidation in Indonesia: The Role of the
Constitutional Court, 10 J. E. Asian Stud. 397 (2010).
7
Simon Butt & Tim Lindsey, Economic Reform When the Constitution Matters: Indonesia’s Constitutional Court
and Article 33, 44 Bull. Indonesian Econ. Stud. 239 (2008).
8
Agil Oktaryan et al., Implementsi putusan pengujian undang-undang oleh Mahkamah Konstitusi: A Baseline
Research [Implementation of Judicial Review Decisions by the Constitutional Court: A Baseline Research] (2019);
Tri Sulistyowati, Imam Nasef, & Ali Ridho, Constitutional compliance atas putusan Mahkamah Konstitusi oleh
lembaga-lembaga negara [Constitutional Compliance with Decisions of the Constitutional Court by Institutions
of State] (2019); Topane Gayus Lumbuun, Tindak lanjut putusan Mahakamah Konstitusi oleh DPR RI
[Follow-up of Constitutional Court Decisions by the National Legislature], 6 J. Legislasi Indonesia 77 (2009).
9
Sulistyowati, Nasef, & Ridho, supra note 8.
10
Lidya Natalia Desca, Ketua MK keluhkan ketidakpatuhan atas putusan Mahkamah Konstistusi [Constitutional
Court Chief Justice Complains of Non-compliance with Constitutional Court Decisions], Antara (Jan. 28,
2020), www.antaranews.com/berita/1268755/ketua-mk-keluhkan-ketidakpatuhan-atas-putusan-
mahkamah-konstistusi.
430 I•CON 20 (2022), 428–453 Critical Review of Jurisprudence
Justice Usman warned that the Constitution “means nothing if it is not upheld and
followed. If this happens, then serious challenges face the rule of law state to which we
aspire.” Chief Justice Usman urged the parliament and the government to implement
Constitutional Court decisions through legislative review of the statutes the Court has
declared unconstitutional.11
This article focuses on what Chief Justice Usman called for: the use of national legis-
lation to implement Constitutional Court decisions. After all, as we explain, Indonesian
law itself requires compliance by statute. We examine this primarily through two case

studies: the legislative responses to the Coastal and Small Islands Law and the Plantation
Law cases.12 We have obtained the national parliamentary debates about the legisla-
tion enacted to comply with these decisions, as well as preliminary drafts of legislation
and other pertinent documents. While, formally, these documents are public, in prac-
tice they are very difficult, if not impossible, to obtain for most statutes. These cases,
therefore, present almost-unique opportunities to examine how legislators interpret
Constitutional Court decisions, and the extent to which those decisions figure in the
amendment process.
Unfortunately, the legislative response in both cases directly contradicted the
Constitutional Court decision that was said to have prompted it. Indeed, legislators
went further than the decisions required, and even apparently made amendments
to pursue their own or their allies’ personal, political, and commercial interests. This
suggests that, in some cases, constitutional review in Indonesia can be counterpro-
ductive, at least for those bringing constitutional challenges and their supporters.
These findings are consistent with the increasing body of survey evidence and schol-
arly literature portraying Indonesia’s national legislature—the Dewan Perwakilan
Rakyat (People’s Representative Assembly, DPR)—as one of the most untrustworthy
of Indonesia’s state institutions, with its members less concerned with serving the
public interest than with self-enrichment, self-entrenchment for future terms, and po-
litical infighting.13
We begin, in Section 2, by introducing the Court and, generally, how it exercises
its jurisdiction, including the types of decisions it makes. In Section 3, we provide an
overview of the various ways in which the government and the courts have tended
to respond to Constitutional Court decisions. We consider what form compliance
with Indonesian Constitutional Court decisions should take (as a matter of law) and
does take (in practice). As mentioned, this article’s focus is legislative responses to
Constitutional Court decisions. But if decisions have been followed up at all, this has
been by lower-level executive, bureaucratic, or judicial regulations or in practice by
government officials and judges.14 In Section 4, we focus on legislative responses to
11
Id.
12
Constitutional Court Decision 3/PUU-VIII/2010, June 16, 2011; Constitutional Court Decision 55/PUU-
VIII/2010, Sept. 6, 2011.
13
Patrick Ziegenhain, The Indonesian Parliament and Democratization (2008); Ibnu Hariyanto, Survei
LSI: Kepercayaan Publik terhadap DPR Paling Rendah, KPK Tertinggi [LSI Survey: Public Trust in the
DPR Lowest, KPK Highest], Detik News (Oct. 6, 2019), https://news.detik.com/berita/d-4735750/
survei-lsi-kepercayaan-publik-terhadap-dpr-paling-rendah-kpk-tertinggi.
14
Oktaryan et al., supra note 8, at 11.
Constitutional Court decisions using our two case studies. We demonstrate that, while
Indonesia’s constitutional system allocates primary, if not sole, responsibility to na-
tional legislators for compliance with Constitutional Court decisions, this will not al-
ways lead to effective constitutionalism in practice.
2. The Indonesian Constitutional Court

The Constitutional Court, one of Indonesia’s newest judicial institutions, has nine
judges and several functions, including constitutional review.15 This power is limited to
reviewing the consistency of statutes with the Constitution. The Constitutional Court,
therefore, cannot formally review the constitutionality of other types of laws, such as
government and ministerial regulations, or even government action. The Court also
cannot examine the constitutionality of decisions of other courts.
Overall, the Constitutional Court has developed a deserved reputation for profes-
sionalism, including for providing better-reasoned decisions than other Indonesian
courts.16 This can raise doubt about precisely what the government must do in re-
sponse to those decisions and about the implications of its decisions for similar legis-
lation. A related uncertainty concerns which parts of Constitutional Court decisions
must be followed. The Court’s holding (amar putusan), which is a statement at the end
of the judgment in which the Court outlines its order, is undoubtedly binding. But
whether the Court’s reasoning (pertimbangan hukum)—often lengthy and discursive,
and contained in the pages leading up to the holding—is also binding is much debated.
2.1. Limiting effects: Prospectivity and abstract review

The Court has declared that its decisions operate prospectively.17 Accordingly, if the
Court decides that a statutory provision is unconstitutional, the provision will only
be invalid from the moment the Court finishes reading its decision. Where the govern-
ment has already acted under the statutory provision, that action will not be affected
by the Court’s decision. So, for example, if the government has issued a license under
a statutory provision that the Court later decides was unconstitutional, then that li-
cense will remain valid. The decision would only affect the legal basis for any license
that the government wanted to issue after the decision was handed down. It is even
arguable that regulations already issued under a law the Court later decides to be un-
constitutional do not necessarily lose validity or require revocation, though this view
is contested, as discussed below. The Court has also limited itself to reviewing the sub-
stantive norms of a statute, and not its effect or implementation.18 This means that it
15
See Const. (1945, as amended), arts. 24C(1)–(2) (Indon.).
16
Simon Butt, Judicial Review in Indonesia: Between Civil Law and Accountability? A Study of
Constitutional Court Decisions 2003–2005 (2007) (Unpublished Ph.D. dissertation, Melb. Univ., Law
Faculty) (on file with author).
17
Butt, supra note 3, at 103–12.
18
Id. at 96–102.
does not aim to resolve any actual disputes or problems about which the applicants
may have complained.
The Court’s preference for prospectivity and abstract review leaves its decisions with
very little practical utility for litigants. On the one hand, the Court has provided rela-
tively open access to its processes, by allowing citizens, customary communities, public
and private entities, state institutions, and even non-governmental organizations
(NGOs) to bring constitutional challenges.19 On the other hand, however, applicants
must demonstrate actual or potential constitutional damage to have standing to bring

an application before the Court. This means that they must have suffered the very type
of concrete loss or effects that the Court says it will not remedy.
2.2. Types of decisions

Law 24 of 2003 on the Constitutional Court (“the Constitutional Court Law”) sets
out three types of decisions the Court can issue in constitutional review cases.20 All
of them are couched as the Court’s response to the written “application” lodged by
the plaintiffs, although, of course, the decision is based on a much wider inquiry, in-
cluding the written application, the evidence adduced at trial, and the judges’ inter-
pretation of the Constitution and statute under review. First, the Court can decide
to uphold all or part of the application, and then declare that the sub-article, article,
or part of the impugned statute violates the Constitution and no longer has binding
force.21 Second, the Court can reject the application if the statute does not violate the
Constitution (article 56(6)). Third, the Court can strike out the case if the plaintiffs
lack standing or the application contains procedural flaws (article 56(1)). Using these
powers, the Court invalidated statutory provisions in around ninety cases between
2003 and 2018.22
The Court has never confined itself to these three models. In many cases, it has
declared a statutory provision to be unconstitutional, but refused to invalidate it with
immediate effect. Rather, it has set out an interpretation of that provision that will en-
able it to remain constitutional and in force (referred to as “conditional” decisions).23
In these decisions, the Court will generally declare statutory provisions condition-
ally unconstitutional—that is, constitutionally invalid unless its conditions are met.
Some commentators have argued that, by issuing conditional decisions, the Court
has moved away from being a “negative legislator” (that is, an invalidator of uncon-
stitutional legislation) and, controversially, towards being a legislator itself, thereby
disrupting the separation of powers.
The Court has now issued more conditional decisions than it has simple
invalidations.24 While the Court appears to view these decisions as self-enforcing,
19
Id. at 48–89.
20
Law No. 24 on the Constitutional Court 2003, as amended [hereinafter Constitutional Court Law].
21
Id. arts. 56(2), 56(3), 57(1).
22
23
Simon Butt, Conditional Constitutionality and Conditional Unconstitutionality in Indonesia, in Constitutional
Remedies in Asia 77 (Jen Yap Po ed., 2019).
24
there is significant uncertainty as to the circumstances in which provisions declared

conditionally unconstitutional become invalid, much less how invalidity is effected.
As discussed in Section 3, these conditional decisions present problems for any assess-
ment of compliance with the Court’s rulings.
Another way the Court avoids invalidating unconstitutional legislation with imme-
diate effect is by setting a deadline within which the legislature must enact a statutory
amendment or new statute to cure the constitutional defect.25
The national legislature has attempted to prohibit the Court from issuing condi-

tional decisions and deadlines, by amending the Constitutional Court Law in 2011.
However, the Court invalidated these prohibitions shortly thereafter, leaving itself free
to continue issuing these types of decisions.26
2.3. Reviewing regulations?

As mentioned, the Constitutional Court’s jurisdiction is limited to reviewing statutes.
It does not formally extend to reviewing regulations. However, the Court has indi-
rectly reviewed regulations while reviewing the constitutionality of Indonesia’s na-
tional water legislation. The Court has consistently interpreted Article 33(3) of the
Constitution, which requires the state to control natural resources for the greatest
prosperity of the people, in order to limit the power of the state to privatize or even
involve the private sector in the management of natural resources.27 The Court has is-
sued two important decisions concerning the validity of the Water Resources Law28—
one in 2005 (Water Resources No. 1)29 and another in 2014 (Water Resources No. 2).30
In both cases, civil society organizations argued that the Law was unconstitutional
because it promoted water privatization, even though water was a public resource,
limiting the state’s role to that of a mere regulator.31
In Water Resources No. 1, the Court accepted that the people’s right to water could
exist side by side with provisions of Water Resources Law that allowed for commercial
exploitation of water, through the existing permit system, provided that the govern-
ment could revoke licenses if exploitation jeopardized this right.32 For these reasons,
the Court denied the applicants’ claim but said that, “if in its application, the Law is
interpreted in a different way from the above-mentioned Court’s consideration, there
remains the possibility to re-apply for another review.”33
25
Id. at 9.
26
Fritz Siregar, Indonesian Constitutional Politics 2003–2013 (2016) (Unpublished Ph.D. dissertation,
Univ. New S. Wales, Faculty of Law).
27
Butt & Lindsey, supra note 7.
28
Law No. 7 of 2004 on Water Resources.
29
Constitutional Court, Decision Nos. 058-059-060-063/PUU-II/2004 and 008/PUU-III/2005, July 19,
2005 [hereinafter Water Resources No. 1].
30
Constitutional Court, Decision No. 85/PUU-XI/2013, Sept. 18, 2014 [hereinafter Water Resources No. 2].
31
See, e.g., Constitutional Court, Decision Nos. 058-059-060-063/PUU-II/2004 and 008/PUU-III/2005,
July 19, 2005, at 44–50, 88–92, 112–32.
32
Constitutional Court, Decision Nos. 058-059-060-063/PUU-II/2004 and 008/PUU-III/2005, July 19,
2005, at 496–7.
33
Id. at 495.
This is precisely what happened in Water Resources No. 2. There, the applicants
pointed to six regulations that the government had issued pursuant to the Water
Resources Law, but which violated that Law. One of these regulations had author-
ized private corporations to manage water resources if state-owned enterprises were
“unable to improve the quality and quantity” of drinking water by themselves,34
even though the Water Resources Law clearly required the government to develop a
drinking water system. The Court decided that the regulations contravened the Water
Resources No. 1 case and invalidated the entire Water Resources Law—a decision that

was largely complied with by government.
This decision was controversial because it involved the Court reviewing regulations.
The Court addressed this squarely, justifying examining these enabling regulations as
a means to assess the constitutionality of the statute itself.35 However, the Court has
not clarified the circumstances in which it will review regulations using the reasoning
employed in Water Resources No. 2, or in which it will continue its usual practice to
throw out cases where applicants ask it to review regulations, or the implementation
of statutes, rather than statutes themselves.
3. Compliance: Variations and complications

Scholars have emphasized that government compliance with judicial decisions is
rarely, if ever, either fully complete or nonexistent, but rather will usually sit some-
where within the spectrum.36 Particularly in highly political settings, the extent of gov-
ernment compliance might be affected by a complex interplay of institutional factors,
including the attributes of the court issuing the decision (for example, whether it can
impose consequences for non-compliance and whether the decision is expressed with
sufficient clarity) or the capacity and interests of the government (such as normative
concerns to comply with binding court decisions, the financial capacity to comply,
any political consequences of non-compliance) and even third parties (for example,
the ability of litigants to monitor compliance and hence expose non-compliance).37
In Indonesia, we argue, all these factors are certainly at play, but compliance with
Constitutional Court decisions is complicated by more fundamental threshold issues.
These include the following: Who must respond to a Constitutional Court decision
and what form should the response take? Can the legislature comply by taking no ac-
tion, and can it override decisions of the Court as part of its response? In this sec-
tion, we consider these questions, as well as how the executive has used regulations
and circulars to respond to Constitutional Court decisions, and how other Indonesian
courts have treated those decisions.
34
Government Regulation on the Development of a Drinking Water Supply System 2005, art. 37(3).
35
Constitutional Court, Decision No. 85/PUU-XI/2013, Sept. 18, 2014 at 143.
36
Diana Kapiszewski & Matthew Taylor, Compliance: Conceptualizing, Measuring, and Explaining Adherence to
Judicial Rulings, 38 Law & Soc. Inquiry 803 (2013).
37
James F. Spriggs, Explaining Federal Bureaucratic Compliance with Supreme Court Opinions, 50 Pol. Res. Q.
567 (1997); Kapiszewski & Taylor, supra note 36.
As a starting point, we note that it is accepted in Indonesia that Constitutional Court

decisions invalidating statutes apply erga omnes—that is, generally, to empower and
constrain the branches of government, tiers of government and government agencies,
as well as citizens and non-government organizations, including corporations.
Logically, this means that these entities should, at the very least, no longer follow or
apply statutory provisions that the Constitutional Court has invalidated, from the mo-
ment the Court invalidates them. But because the Constitutional Court lacks enforce-
ment powers, it cannot formally prevent the continued application of an invalidated

law. This task falls to the Supreme Court and the courts below it, such as the adminis-
trative courts. The main problem, though, is that other courts, including the Supreme
Court, have been inconsistent in their recognition and application of Constitutional
Court decisions, as discussed below.
There is less agreement about the legal effect of Constitutional Court decisions on
executive instruments, government action, and decisions of other courts. If, for ex-
ample, a regulation, issued by an executive official such as the president or a min-
ister, is made pursuant to a statutory grant of power contained in a provision that
the Constitutional Court invalidates, will the regulation also automatically become
invalid? This would be a logical consequence for regulations that are made to fulfill
a statutory delegation of power. But, in practice, regulations tend to remain on the
books and continue to be applied until formally revoked by their creators.
3.1. Must national statutes be used to comply?

On our reading, the only legally proscribed way to comply with a Constitutional Court
decision appears to be by national statute. This conclusion is based on two grounds.
The first is article 10(1)(d) of Indonesia’s Lawmaking Law,38 which specifies subject
matter that “must” be regulated by statute to include “responding to a decision of
the Constitutional Court.” Article 10(2) states that this response is to be performed
by the legislature or the President. Similarly, article 59(2) of the Constitutional Court
Law states that, if a Constitutional Court decision requires change to a statute, the
legislature or the President is to immediately (segera) take further action in respect
of the decision. We take articles 10(2) and 59(2) to mean that either the legislature
or the President (as the head of the executive) can initiate a bill to give effect to a
Constitutional Court decision as part of the ordinary statutory initiation process, and
not to give the president power to give effect to a Constitutional Court decision in-
dependent of that process. The second ground for this conclusion is its consistency
with the Court’s constitutional review jurisdiction, which, as mentioned, is limited to
reviewing national statutes. It follows that if the Court invalidates a statutory provi-
sion, then any gap should be filled, or any other necessary responses effected, with the
same type of legal instrument: a statute.
However, regardless of the formal legal position, a variety of types of laws have, in
practice, been issued by a range of government authorities to respond to or comply
Lawmaking Law No. 12 (2011), amended by Law No. 15 (2019).

38
with Constitutional Court decisions in Indonesia. About half of all responses to

Constitutional Court decisions have taken non-statutory, but regulatory, forms, in-
cluding 11% by ministerial regulation (peraturan menteri), 8% by government reg-
ulation (peraturan pemerintah), 9% by Electoral Commission regulation, and 8% by
circular letter (surat edaran).39 By contrast, only 25% of decisions prompted statutes or
statutory revisions.40 Use of regulations, rather than legislation, has been justified by
the fact that statutes apply generally to all people and institutions, as do Constitutional
Court decisions invalidating statutory provisions.41 Any laws enacted to give effect to

a Constitutional Court decision are, therefore, just as legal—and even just as legally
required—as those enacted to implement a statute. To our knowledge, this view has
never been contested.42
3.2. Compliance through inaction

If the Court invalidates a statutory provision, must the legislature replace it, or can
the legislature choose not to fill any statutory lacunae that the Court’s decisions leave?
There seems to be nothing stopping the national legislature from taking no action in
response to a Constitutional Court decision, even when the Court directly orders it to
act, such as in the “deadline” cases discussed in Section 2. So, for example, when the
Constitutional Court invalidated the Water Resources Law in 2015 and reinstated the
1974 Irrigation Law, the legislature could have simply allowed the water sector to re-
main governed under the older law rather than enact a new statute. Strictly speaking,
compliance with the Court’s decision required merely that the invalidated statute was
no longer followed.
One conspicuous uncertainty is what the legislature must do, if anything, to re-
spond to “conditional” decisions, discussed in Section 2. On one view, the legislature
must legislate to ratify the Court’s conditions before they become operative. The re-
search about compliance that the Chief Justice referred to during the annual report
presentation mentioned at the beginning of this article seemed to categorize legisla-
tive inaction in this context as non-compliance.43 However, on another view, the legis-
lature needs to take no action in response to conditional decisions. After all, the Court
appears to issue these decisions on the presumption that they are self-enforcing: the
Court’s “conditions” are often expressed as if they are a statutory amendment and
39
Oktaryan et al., supra note 8, at 11. See also Sulistyowati, Nasef, & Ridho, supra note 8.
40
41
Maruarar Siahaan, Implementasi Putusan Mahkamah Konstitusi Dalam Pengujian Undang-Undang, Studi
Tentang Mekanisme Checks and Balances di Indonesia [Implementation of Constitutional Court Decisions in
Judicial Reviews of Legislation, a Study of Checks and Balances Mechanisms in Indonesia] 120–1, 388 (2010).
42
On another view, legislation is not required unless the decision disrupts existing norms in the legal system:
Sulistyowati, Nasef, & Ridho, supra note 8. To our knowledge, this distinction has never been endorsed or
considered by the Court.
43
Id. Another view is that if the condition is “broken”—that is, the legislative provision is not interpreted
in the way the Court specifies, by anyone, even only once—then the provision is, from that moment, no
longer on the statute books, as if the Court had invalidated it in its judgment. We are unaware of this in-
terpretation being considered in any of the relevant Indonesian legal literature.
can usually be directly applied as such. Of course, if the legislature disagrees with the
conditions the Court imposes, it can enact legislation to replace them.
Although nowhere legally enshrined, this view appears to have been adopted as the
norm by default. But it has led to undesirable consequences, because it involves the
Court relying, for the efficacy of its decisions, on a wide range of actors being aware of
its decisions and being inclined to follow them as they would legislation. Some condi-
tional decisions have resulted in inconsistent government policies and court decisions,
with some following the “old” version of a statutory provision and others following

the “new” wording of the Court. Again, the Constitutional Court itself lacks power to
ensure that its interpretation is followed in practice (whether by action or regulation):
this will usually be a matter for administrative courts (for government compliance)
and the general courts (for compliance of individuals and citizens).
3.3. Use of regulations

Some commentators criticize the use of regulations to comply with Constitutional
Court decisions, pointing out that regulations are usually made without the open po-
litical deliberation and public debate associated with the passage of most draft leg-
islation. Regulation-makers are often accused of developing regulations in a legal
vacuum—that is, without considering other applicable regulations with related
subject matter. One consequence of this can be significant regulatory overlap and
inconsistency. For example, in a series of cases, the Court has upheld the rights of
customary communities to occupy and access the natural resources upon which they
have long relied.44 In each case, the Court has emphasized that, in order to obtain
these entitlements, customary communities must have been formally recognized.
The ministries of Environment and Forestry, Home Affairs, and Agrarian Affairs and
Spatial Planning have all issued regulations which specify how these communities can
achieve this recognition, but differ from one another. The Minister of Environment
and Forestry regulations require recognition through a local regulation (perda);45 the
Home Affairs requires it in the form of the Head of local government decree (keputusan
kepala daerah);46 while the Minister of Agrarian and Spatial Planning specifies neither
the conditions for, nor the proper form of, recognition.47 These inconsistencies have
perpetuated the legal uncertainty surrounding customary recognition that some of
the Constitutional Court’s decisions were made to remove, and have impeded even the
most genuine attempts at compliance.
There is no doubt that some regulations have successfully given effect to many
Constitutional Court decisions. A clear example is the issuance of seven ministerial
regulations and one presidential regulation to implement four constitutional reviews
44
Simon Butt, Traditional Land Rights Before the Indonesian Constitutional Court, 10 Law Env. & Dev. J.
57 (2014).
45
Forestry Minister Regulation No. 62 (2013).
46
Home Affairs Ministry Regulation No. 52 (2014).
47
Agrarian and Spatial Planning Minister Regulation No. 20 (2016).
of the Forestry Law.48 Murharjanti has argued that these regulations addressed many
of the concerns the Court expressed in these decisions about forest management
and access to forest resources by traditional communities. Several regulations, such
as Environment and Forestry Minister Regulation 32 of 2015 on Titled Forest and
Presidential Regulation 88 of 2017 on the Resolution of Land Entitlements in Forest
Zones, establish mechanisms to help customary communities resolve conflicts with
commercial license holders and the government, and to obtain compensation for use
of their traditional lands.49 Another common way ministries—and even courts—re-

spond to Constitutional Court decisions is by issuing “circular letters” (surat edaran).
They have been used particularly extensively by the Ministry of Environment and
Forestry to respond to Constitutional Court decisions about the Forestry Law, for
example.50 Many of these circulars have two purposes: the first is to alert relevant
officials—both national and regional—of the decision itself; and the second is to
outline any consequences of that decision, such as its effect on existing permits or
concessions.
Using a circular to comply with the Constitutional Court’s decisions appears to
be a well-intentioned and rational choice. They are commonly used by the govern-
ment to perform its administrative function based on its discretionary power,51 and
they are binding upon the subject(s) to whom they are addressed.52 They are relatively
fast and easy to make because they do not require approval from other government
institutions or the parliament. But they are also legally problematic, primarily because
they are not included on Indonesia’s hierarchy of laws.53 This does not necessarily
deny them general legal force but leads to doubts about their legal effect vis-à-vis other
laws, particularly beyond the institution that makes them. The same can be said about
ministerial regulations, which are not listed in the hierarchy and, as mentioned, are
commonly used to respond to Constitutional Court decisions.
3.4. Judicial (non)compliance

The responses of other Indonesian courts to decisions of the Constitutional Court
also deserve attention. Reflecting its well-known dislike of the judicial competition
48
Prayekti Murharjanti, The Effectiveness of the Constitutionalisation of Environmental Rights in
Indonesia: Judicial Application and Government Compliance (2019) (Unpublished Ph.D. dissertation,
Univ. Sydney, Faculty of Law) (on file with author).
49
Unfortunately, some of these regulations have sought to achieve precisely the same legal outcome as
the legislation the Court invalidated. As discussed, in Water Resources No. 2, the Court identified several
regulations that defied its decision in Water Resources No. 1. For other examples, see PP Listrik Swasta
Diajukan Uji Materiil [Electricity Privatization Regulation Reviewed], Hukumonline (July 17, 2005), www.
hukumonline.com/berita/baca/hol13184/pp-listrik-swasta-diajukan-uji-materiil/.
50
See, e.g., Forestry Ministry Circular No. 1 on Constitutional Court Decision No. 35/PUU-X/2012 (July
16, 2013).
51
Victor I. Nalle, Kedudukan Peraturan Kebijakan Dalam Undang-Undang Administrasi Pemerintahan [Position
of Policy Regulations in Law on Government Administration], 10 Jurnal Refleksi Hukum 1 (2016).
52
Bagir Manan, Peraturan Kebijakan [Policy Regulations], Varia Peradilan 16 (2008).
53
See Simon Butt & Tim Lindsey, Indonesian Law 36–54 (2018).
the establishment of the Constitutional Court created, the Supreme Court has ignored
Constitutional Court decisions.54
Despite this general reluctance to give effect to Constitutional Court decisions, the
Supreme Court has in fact followed Constitutional Court decisions in some cases. In
one of these—the Bulldozer case—it overturned a conviction based on a provision
the Constitutional Court had invalidated. This case was particularly significant, be-
cause it involved the Supreme Court reversing one of its own decisions in favor of
recognizing a Constitutional Court ruling. Along with around thirty others, two

defendants had stopped a bulldozer that was clearing land for an oil palm plantation,
halting activity for several days. The plantation company, P.T. Bangun Nusa Mandiri,
which had a permit to clear the land and develop the plantation in West Kalimantan,
claimed to suffer significant losses. The two defendants were investigated, prosecuted
and convicted for violating article 47(1) of the 2004 Plantation Law, and were each
sentenced to one year of imprisonment and a IDR 2 million fine.
At the beginning of their trial, the defendants announced that they had initiated a
challenge to article 47(1) in the Constitutional Court. They objected to their criminal
trial proceeding, at least until after the Constitutional Court had decided that chal-
lenge. After deliberating, the district court judges allowed the case to proceed and even-
tually convicted them in a decision that was upheld on appeal to the Pontianak High
Court.55 The defendants then lodged a cassation appeal with the Supreme Court.56
Before the Supreme Court decided that appeal, the Constitutional Court issued its de-
cision, declaring article 47(1) and other provisions of the Plantation Law unconsti-
tutional and invalidating them (see Section 4). However, the cassation panel of the
Supreme Court ignored the Constitutional Court decision and upheld the convictions.
The two defendants then asked the Supreme Court to reopen the case, pointing to the
Constitutional Court decision as a novum—or relevant new fact or circumstance—
and arguing that their convictions under an invalidated law should not stand. The
Supreme Court agreed, finding that the cassation panel had erred in upholding their
conviction because it had, in effect, applied a provision that no longer existed. The
Court concluded that they should not have been convicted.57
3.5. Compliance in a future statute

One further uncertainty relates to whether the national parliament can legally re-
spond to a Constitutional Court decision by reinstating the very same provision as,
or a provision similar to, the one the Court invalidated. On this, Indonesian law is
54
See, e.g., Simon Butt, Judicial Responses to the Death Penalty in Indonesia, 39 Alternative L.J. 134 (2014);
Nurhadi Nurhadi, The Dualism of the Supreme Court’s Decisions on the Position of Non-marital Child, 8
Jurnal Hukum dan Peradilan 228 (2019).
55
Pontianak High Court Decision 73/Pid/2011/PT.PTK, May 4, 2011.
56
Supreme Court Decision 2292 K/Pid.Sus/2011, June 21, 2012.
57
Supreme Court Decision 63 PK/Pid.Sus/2014, June 30, 2014. In their submissions, the defendants also
mentioned similar appeal court decisions that had overturned article 47(1) convictions following the
Constitutional Court’s invalidation of article 47(1). See, e.g., Central Kalimantan High Court Decision
49/PID.SUS/2011/PTPR, Oct. 17, 2011.
silent.58 The issue seems to turn on whether the Court’s reasoning is binding (in which
case, one would expect that the legislature would be barred from reenacting the pro-
vision) or only its holding (in which case, the effect of the decision might end with
the invalidation, allowing the legislature to simply replace the provision). While this
issue remains unresolved, we note that the Court would likely invalidate the replace-
ment provision on the same or similar grounds to those used to invalidate the original
provisions. However, the Court could not be proactive; it would need to wait for an
application asking it to review the replacement provision.

The legislature seemed to reinstate the nub of provisions the Court invalidated in
both of our primary case studies, which we now turn to discuss.
4. The Coastal and Small Islands Law and Plantation

Law cases
In this section, we turn to the focus of this article—legislative responses to
Constitutional Court decisions. In Section 3 we uncovered deficiencies in the regu-
latory and judicial responses to Constitutional Court decisions, and discussed clear
examples of compliance. As we shall see in this section, the legislative process—
designed to be more transparent, participatory, and democratic than regulatory
responses—offers no guarantees of a response that properly addresses the Court’s de-
cision. In these two cases, the opposite has occurred, with the legislature using the
opportunity to reverse the Court’s decisions and then add provisions that seem to run
counter to the Court’s reasoning.
4.1. The Coastal and Small Islands Law (Pesisir) case

a) Facts of the case
Indonesia has over 60,000 miles of coast across its almost 17,000 islands. But
compared with other natural resource sectors considered particularly lucrative, such
as forestry and mining, the Indonesian government has paid less attention to the man-
agement of coastal areas and islands. In 2007, after over seven years of consultation,
drafting, and deliberation, the national parliament enacted the first statute dedicated
to coastal areas: Law No. 27 of 2007 on the Management of Coastal Area and Small
Islands Area, commonly called the “Pesisir Law.”
In January 2010, several civil society organizations, along with twenty-six
fishermen from various customary communities, sought constitutional review of the
Pesisir Law. One of their concerns was its creation of a new right—the so-called “right
to use coastal water for commercial purposes” (hak pengusahaan perairan pesisir, usu-
ally referred to as the “HP3”)—which extended to the water surface, water columns,
Charles Simabura, Bisakah “Menghidupkan” Kembali Pasal yang Pernah Dibatalkan MK? [Is
58
It Possible to “Revive” Provisions That Have Been Invalidated by the Constitutional Court?],
Hukumonline (Feb. 27, 2020), www.hukumonline.com/klinik/detail/ulasan/lt5aedf271ad4e4/
bisakah-menghidupkan-kembali-pasal-yang-pernah-dibatalkan-mk/.
and seabeds (Article 1(18)). This right could be obtained by individuals, legal entities,
and customary communities (Article 18(a)–(c)) for sixty years59 to exploit coastal and
marine resources along a maximum of 12 miles of coastline, or in waters connecting
the coast and islands, estuaries, bays, shallow water, marshes, and lagoons (article
1(7) of the Pesisir Law). The right was transferable and usable as security for a debt
(article 20(1)–(2)).
Under article 50(1)–(3) of the Pesisir Law, HP3 certificates were issued by the
Ministry of Marine and Fisheries, a governor, or a regent, depending on the location

of the resource. But before issuance, the potential right holder needed to, amongst
other things, meet various technical and administrative conditions, including
demonstrating that the proposed use complied with zoning and management plans
and did not exceed the ecosystem’s carrying capacity (article 21 of the Pesisir Law).
In the Constitutional Court, the NGOs and farmers argued that HP3s violated the
Constitution, particularly Article 33(3) which requires the state “to control nat-
ural resources for the greatest prosperity of the people.” They pointed to previous
Constitutional Court decisions, in which the Court had declared that, to exercise
that control, the state needed to regulate, administer, manage, supervise, and make
policies about those natural resources. The applicants objected to HP3s becoming the
private property (hak kebendaan) of individuals and legal entities, arguing that this left
the state unable to effectively control common coastal resources.60 The state could not
cede control over coastal resources in this way, they argued, but rather was required to
continue to manage them, either directly or through an institution established for that
purpose. The petitioners also argued that the Pesisir Law would exclude customary
communities from accessing the coastal resources they had long used to meet their
subsistence needs, which even threatened their right to life, contained in Article 28A
of the Constitution. Exclusion could happen because the Pesisir Law made it possible
for individuals or commercial enterprises to obtain HP3s over areas customary groups
already occupied or otherwise relied upon. And while the Pesisir Law formally allowed
customary communities to hold HP3s, it imposed complicated and costly procedures,
which were difficult, if not impossible, for them to fulfill. In practice, then, these
communities generally could not obtain an HP3.
The Court agreed with the applicants’ arguments based on Article 33 of the
Constitution and invalidated the fourteen provisions pertaining to HP3s in the Pesisir
Law. For the Court, the state’s obligation to control natural resources derived from the
sovereignty of the people, which could be given expression only if natural resources
were used to achieve the greatest possible prosperity for citizens. This meant that the
unbridled private exploitation of these resources was impermissible; they could not be
owned as personal property or even used for private purposes without regard for the
public interest.61 But the Court did not close off private sector participation entirely; if
59
See Law No. 27 on the Management of Coastal Area and Small Islands Area (2007), arts 19(1)–(3) [here-
inafter Pesisir Law] (providing that after an initial grant of twenty years, the right could be extended
twice for another twenty years each).
60
Constitutional Court Decision 3/PUU-VIII/2010, June 16, 2011 at 40–3, 51–6.
61
Id. at 157.
the government wanted to involve the private sector, it could do so by issuing permits
or licenses, not rights like HP3s. According to the Court, rights were objectionable be-
cause they transferred the state’s control over natural resources to private entities for
a certain period. By contrast, permits and licenses left the state with sufficient control
over coastal resources to continue to manage them for the greatest prosperity of the
people, including by preventing conflicts.62
The Court held that the state, when exercising authority to control land, water,
and natural resources, must consider other constitutional rights, including envi-

ronmental rights and customary rights of access. The state must also ensure public
participation in coastal management (including by contributing to coastal and small
island management development plans), and that the community can benefit from
natural resources.63 For the Court, HP3s prevented the state from meeting these
obligations. This was because the requirements to obtain an HP3 were so onerous that
only entities with access to significant capital and technology could likely obtain one,
thereby excluding customary communities. Accordingly, HP3s would likely result in
the benefits from the exploitation of these resources being obtained by corporations.
Local communities, including customary communities, would suffer indirect discrim-
ination, and would be excluded from coastal resources and decisions about how those
resources should be used.64 The Court also decided that the limited duration of HP3s
was inconsistent with customary community rights (hak ulayat), which last for as long
as the community uses the land or coastal resource.
b) Legislative response

Before discussing how the legislature responded to the Pesisir Law case, we outline the
national legislative process. Bills can originate from either the president or the leg-
islature,65 and must be accompanied by an academic draft (naskah akademis)66 that
explains the substance of the bill and provides a detailed breakdown of all proposed
clauses. Before the bill goes to a plenary legislative sitting for approval, the terms of the
proposed legislation are discussed and debated—usually by reference to an “inventory
of issues” (daftar inventarisasi masalah)—by representatives from the executive (usu-
ally from the Ministry whose portfolio touches on the subject matter of the draft) and
members of a legislative commission. Bills will usually be agreed between them before
being put to parliament for enactment.
It was not until mid-2013, about two years after the Court handed down its de-
cision, that the government began the long process to revise the Pesisir Law. The
revisions were clearly made in response to the Constitutional Court’s decision, which
62
Id. at 164–5.
63
Id. at 157–8, 161.
64
Id. at 161–3.
65
Const. (1945, as amended), art. 20(2) (Indon.). The main exception is that the president may issue an in-
terim emergency law (Peraturan Pemerintah Pengganti Undang-undang), which is equal in legal status
to a statute: Article 22.
66
Law No. 12 on Lawmaking (2002) (as amended) art. 43(1) [hereinafter Lawmaking Law].
was mentioned by the Director General for Marine, Coastal and Small Islands of the
Ministry of Maritime and Fisheries Affairs (MMFA) when he announced that the
Ministry would initiate the revision of the Pesisir Law on behalf of the executive.67
The amendments to the Pesisir Law establish a permit system to replace the HP3
system to which the Court objected. But the change is more form than substance;
the new provisions do not radically change how individuals and entities can become
legally able to manage and exploit coastal and small island resources. Under the
amendments, both location and management permits are required to manage coastal

areas and small islands (article 1(18) of the Pesisir Law). Location permits give the
permit holder a legal basis to obtain a management permit (article 16 of the Pesisir
Law), while management permits give the permit holder authority to carry out activ-
ities such as salt production, marine bio pharmacology, marine biotechnology, and
tourism (article 19 of the Pesisir Law). Like HP3s, these permits are available for a
maximum of sixty years; after an initial grant of twenty years for individual citizens,
corporations, and community cooperatives, they can be twice extended for another
twenty years (article 22A of the Pesisir Law). To obtain those permits, applicants must
fulfill technical, administrative, and operational requirements (article 22B of the
Pesisir Law). The permits are issued by the Ministry, a governor, or regent depending
on the location of the resource (article 50 of the Pesisir Law).
The amendments also accommodated issues that the Court identified in its rea-
soning but not in its final holding. For example, they established customary community
rights to manage coastal and small island areas, and to participate in coastal manage-
ment development plans (article 14(1) of the Pesisir Law). One might be tempted to
conclude that this indicates that legislators are bound, or at least consider themselves
bound, by the reasoning the Court employs to reach its final holdings. (As mentioned
in Section 2, there is uncertainty about whether only the Court’s final holdings are
binding.) But the amendments did not accommodate other elements of the Court’s
reasoning, which suggests that lawmakers might consider that they can choose
whether to adopt the Court’s reasoning. For example, as mentioned, the Court clearly
specified that, when the state exercises control over natural resources, it must also con-
sider environmental rights. But in the switch from a rights-based to a permit system,
lawmakers removed the requirement that an application be rejected if the proposed
activities posed a serious threat to the sustainability of coastal areas or could cause
irreversible damage to the environment (article 21(5) of the Pesisir Law). Instead, the
amendments delegate power to the government to establish permit requirements by
regulation. Unfortunately, at the time of writing, no regulation had been issued; and
Ana Noviani, Izin Usaha di Pesisir Bakal “Dirombak” [Permits for Coastal Areas to be Overhauled], Bisnis
67
Indonesia (Aug. 28, 2013), https://ekonomi.bisnis.com/read/20130828/99/159350/izin-usaha-di-

Pesisir-bakal-diromba. The decision was also mentioned in the bill’s naskah akademik (“academic draft”),
the first meeting between the Ministry and DPR members about the revisions, and during deliberations
about the revisions in DPR Commission IV. See Ministry of Maritime & Fisheries Aff., Academic Draft
of Management of Coastal Area and Small Islands Bill (Government Version) (2013); Working Comm.
(Indon. Parl.), Parliamentary Notes 8–9 (Oct. 22, 2013); Plenary Session Level II (Indon. Parl.),
Parliamentary Notes (Dec. 18, 2013).
there is no guarantee that, once issued, it will impose any environmental conditions,
let alone ones as strong as in the pre-amended Pesisir Law. Nevertheless, the
amendments do not entirely remove environmental considerations from the permit
process. The Minister can revoke a permit if the activities performed under it have a
significant, wide, and strategic impact (article 51 of the Pesisir Law). The Law defines
this impact to include changes affecting the biophysical environment, such as climate
change, and the social and economic circumstances of current and future generations
(article 1(27A) of the Pesisir Law). These provisions are obviously important, but they

suggest that the damage—whether environmental, social, or economic—will have al-
ready occurred before the Minister can revoke the permit. This seems to indicate that
the new system is not designed to prevent environmental damage.
Legislators also added three provisions unrelated to the Court’s decision.68 The
first, article 26A, authorizes foreign investment by corporations in the exploitation
of coastal areas and small islands. This requires a permit from the Minister, the grant
of which is subject to conditions, such as that the area is uninhabited and not being
exploited by any traditional communities. Foreign investors must also guarantee
public access to, and “consider the ecological, social and economic aspects” of, the
area (article 26A of the Pesisir Law). The revisions require foreign investors to partner
with an Indonesian participant to perform the activities authorized by the permit, and
even eventually to divest shares in the entity to Indonesian participants.
While drafters justified the partnership and divestment requirements by reference
to the national interest,69 the business interests of individual members of parliament
may also have influenced them. We found no direct evidence in the debates of these
provisions being included at the behest of a politician with a financial interest in their
inclusion. But during a consultative meeting with civil society organizations, one pol-
itician hinted at it, saying: “We invited you to give inputs, article by article, in the
interests of citizens and the national interest, because often in a law-making process
like this, some people will try to include provisions ordered by businesspersons or
politicians.”70
For its part, the government, represented by the MMFA, supported article 26A
of the Pesisir Law because it empowered the Minister to grant these licenses,
not local governments, which had granted licenses to foreigners in questionable
circumstances.71 Article 26A can, in fact, be seen as part of a broader trend to reduce
68
Comm’n IV (Indon. Parl.), Parliamentary Notes (consultation meeting with Directorate General for
Marine, Coastal and Small Islands) (Aug. 28, 2013).
69
Drafting Team (Indon. Parl.), Parliamentary Notes (Dec. 6, 2013); Drafting Team (Indonesian
Parliament), Parliamentary Notes (Dec. 7, 2013).
70
Working Committee (Indon. Parl.), Parliamentary Notes (consultative meeting with NGOs) 25 (Sept.
16, 2013).
71
Working Committee Closed Meeting (Indon. Parl.), Parliamentary Notes 44–5 (Nov. 28, 2013). As an ex-
ample, the Ministry cited a mining permit given by one local government to a foreign company on Bangka
Island, which had no environmental permit (izin lingkungan) and violated spatial planning regulations:
Id. at 45.
powers of local governments to manage natural resources,72 prompted by fears that

they depleted those resources and decimated the environment at alarming rates after
being granted more control over them in post-Soeharto regional autonomy reforms.73
Indeed, a second addition unrelated to the Court’s decision—article 30 of the Pesisir
Law—also seems primarily directed towards giving the Minister powers previously
exercised by local governments. Article 30 empowers the Minister to rezone core con-
servation zones into exploitation zones, which local governments could do under the
2007 Pesisir Law.

The third major addition was article 78A, which states that coastal and small is-
land areas that were classified as conservation zones before the Pesisir Law’s enact-
ment fall under the authority of the MMFA. This seems to resolve a long-standing
jurisdictional dispute over control of marine conservation zones between the MMFA
and the Environment and Forestry Ministry, with the latter Ministry reluctant to cede
control, which it initially obtained for historical reasons.74 Even though almost two-
thirds of Indonesian territory consists of seawater, no Ministry had marine affairs as
its primary focus until the MMFA was established in 1999, with statutes governing
the sector enacted later still.75 By contrast, Indonesia has had a Conservation Law
since 1990.76 This Law did not allocate responsibility for conservation to any existing
ministry, but the Forestry Ministry assumed it—even for marine conservation. Despite
the MMFA’s subsequent establishment and the Pesisir Law’s enactment, the Forestry
Ministry—now the Ministry of Environment and Forestry—has refused to give up au-
thority over marine conservation. Only in 2009, ten years after the MMFA was es-
tablished, did the Forestry Minister agree to transfer responsibility over eight of the
fifteen marine conservation zones it controlled to the Maritime Ministry.77 In 2011
and 2013, the Maritime Minister tried to persuade the Forestry Minister to cede the
remaining seven, but the Forestry Minister refused, claiming that the Conservation
Law did not permit this.78
The MMFA attempted to overcome the roadblocks the Forestry Ministry had put in
its path using the opportunity presented by the need to revise the Pesisir Law. During
parliamentary deliberations, MMFA officials raised this history of jurisdictional con-
flict and argued that the amendments should transfer authority over marine conser-
vation areas to it. The Commission agreed and approved article 78A, but the records
of debate disclose no reasons.79 Unfortunately, the inclusion of article 78A did little to
settle the conflict between the two ministries. Apparently incensed by both article 78A
72
Simon Butt, The Indonesian Constitutional Court: Reconfiguring Decentralization for Better or Worse?, 14
Asian J. Comp. L. 147 (2019).
73
See Laode M. Syarif, Promotion and Management of Marine Fisheries in Indonesia, in Towards Sustainable
Fisheries Law: A Comparative Analysis 31 (Gerd Winter ed., 2009).
74
Working Committee Closed Meeting (Indon. Parl.), Parliamentary Notes 66 (Nov. 28, 2013).
75
See, e.g., Pesisir Law, supra note 59; Law No. 32 on Marine Affairs (2014).
76
Law No. 5 on the Conservation of Biotic Natural Resources and Its Ecosystem (1990).
77
Sugiharto, Membonceng Revisi, Merebut Kewenangan [Piggybacking on Revisions, Seizing Authority], Agro
Indonesia (Mar. 25, 2014), http://agroindonesia.co.id/membonceng-revisi-merebut-kewenangan/.
78
Id.
79
Working Comm. Closed Meeting (Indon. Parl.), Parliamentary Notes 61 (Nov. 28, 2013).
and not being consulted about the revisions,80 the Environment and Forestry Ministry
asked President Joko Widodo to declare that it retained authority over these conserva-
tion zones. For reasons that are unclear, he acceded.81 While a presidential announce-
ment has no formal legal authority, it has muddied any jurisdictional certainty that
the Pesisir Law revisions sought to create. This is because, as head of the executive, the
president controls both ministries and can, therefore, dictate what they do in practice,
regardless of what article 78A says.

4.2. The Plantation Law case
a) Facts of the case
Filed on August 20, 2010 by farmers from three Indonesian provinces, this challenge
focused on articles 21 and 47 of the Plantation Law.82 Article 21 prohibits actions
which “result in damage to plantations and/or other assets” or disrupt planation busi-
ness, and the use of plantation land without a permit. Article 47 imposes a maximum
of five years’ imprisonment and a fine of IDR 5 billion for deliberate violation of article
21, and half of those penalties for negligent violation.
Two applicants were members of the customary community of Silat Hulu from
Ketapang, West Kalimantan. As discussed in Section 3, they had been sentenced by
the Ketapang District Court to one year of imprisonment and fined IDR 2 million.83
Another applicant had been sentenced to one year’s imprisonment and fined IDR
500,000 for using a plantation area in North Sumatra without a permit, despite
having registered his land and paying land taxes since 1955.84 At their criminal trials,
the applicants had claimed, unsuccessfully, that they had merely been attempting
to reclaim their own land, which, they said, was illegally occupied by plantation
companies.85
The applicants claimed that articles 21 and 47 of the Plantation Law were un-
constitutional for various reasons, including that they were unclear and therefore
violated the constitutional right to legal certainty and the rule of law. The Court
agreed,86 finding that article 21 was subject to multiple interpretations that made its
implementation problematic. In particular, it was not clear whether actions which
“result in damage to plantations and/or other assets” could also apply to plantation
80
Working Comm. Synchronisation Team Meeting (Indon. Parl.), Parliamentary Notes (Dec. 9, 2013).
81
Konservasi Taman Nasional Laut Tetap Kewenangan Kementerian LKH [Conservation of National Sea Parks
Remain the Jurisdiction of the Environment Ministry], Berita satu (Mar. 30, 2016), www.beritasatu.com/
kesra/357531/konservasi-taman-nasional-laut-tetap-kewenangan-kementerian-lkh.
82
Law No. 18 on Plantations (2004).
83
Ketapang District Court Decision No. 151/pid.B/2010/PN.KTP (Feb. 28, 2011).
84
Petani Serdang Bedagai Divonis 1 Tahun Penjara [Serdang Farmer Sentenced to One Year’s Imprisonment],
Detik News (Dec. 13, 2006), https://news.detik.com/berita/d-719790/petani-serdang-bedagai-divonis-
1-tahun-penjara.
85
Muhammad Yasin, Kisah Japin Dalam Penegakan Hukum Perkebunan [The Story of Japin in the Enforcement of
Plantation Law], Hukumonline (Nov. 27, 2017), www.hukumonline.com/berita/baca/lt5a1c25c633cb6/
kisah-japin-dalam-penegakan-hukum-perkebunan.
86
Constitutional Court Decision 55/PUU-VIII/2010, Sept. 6, 2011 [hereinafter Plantation Law case].
owners, if, for example, they damaged the plantation during fertilization.87 Article
21’s prohibition on using plantations without a permit was also unclear, as was the
article’s elucidation, which stated that, “unauthorized use of plantation land is the
occupation of land without the permission of the owner as stipulated by laws and
regulations.” The Court noted that determining land ownership and entitlements had
long been difficult, and had caused numerous conflicts since Dutch and Japanese colo-
nization. To resolve these conflicts, the government had issued various laws requiring
musyawarah (“negotiation to achieve agreement”).88 Given the genuine uncertainty

about ownership and entitlements, the Court preferred the musyawarah approach to
the criminal sanctions of the 2005 Plantation Law, which were inappropriate to apply
in disputes involving customary communities, including the applicants, who claimed
to have inherited an entitlement to customary land.89
The Court also accepted that these criminal provisions were susceptible to “arbi-
trary misuse,”90 primarily by plantation companies and law enforcement agencies, to
“criminalize” small farmers and customary communities, including the applicants.
“Criminalization” here refers to use of the criminal process to pursue matters that are
more properly categorized as civil matters. The Court concluded that, besides violating
legal certainty, the provisions also breached the rule of law and constitutional rights
of customary communities.91
b) Legislative response

The DPR drafted a new Plantation Law in 2014. The new Law pays lip service to
the Constitutional Court decision, as did members of legislative Commission IV who
deliberated that Law.92 However, the decision’s real influence on the content of the
new statute seems to have been minimal. At first glance, the 2014 Plantation Law may
appear to protect customary communities—perhaps even more strongly than its pred-
ecessor. To operate on customary lands, plantation businesses must first obtain con-
sent from customary communities and pay compensation (article 12). Government
authorities must also not issue permits for plantations on customary lands without
customary communities’ consent (article 17). Businesses operating without paying
compensation, and authorities who issue permits without consent, are subject to
criminal penalties (articles 107(b) and 103).
However, various aspects of the new Plantation Law make “criminalization”
of customary communities for using plantation land—the very treatment some
applicants in the Plantation Law case had suffered—as likely, if not more, than under
the 2004 Plantation Law provisions the Constitutional Court invalidated. While the
87
Id. at 104.
88
Id. at 101–2.
89
Id. at 103.
90
Id. at 98.
91
Id. at 105.
92
The DPR has eleven Commissions, each of which is responsible for specific matters. Commission IV’s
remit is agriculture, forestry, maritime affairs, fisheries, and food: Butt & Lindsey, supra note 53, at 45.
Law prohibits plantation businesses from occupying and controlling community or

customary plantation land,93 it also prohibits illegal use, occupation, control, and
working of plantations, and collecting plantation produce or products.94 To avoid
illegal use, customary communities need to undergo a formal recognition process,
which is very difficult to successfully navigate, perhaps even impossible for many such
communities. If they use and access plantation resources without obtaining recogni-
tion, then Article 107 imposes a maximum term of imprisonment of four years or a
maximum fine of IDR 4 billion. In practice, then, these provisions provide no protec-

tion against the criminalization of local and customary communities for continuing
to use their traditional lands if, for example, the government grants entitlements to a
plantation company to use that land. This suggests that lawmakers have defied the
Constitutional Court’s decision by reviving norms very similar to those invalidated by
the Court.
During deliberations, Commission IV members appeared to focus on those parts of
the bill dealing with commercial expansion and investment in the plantation sector.
The rights of customary communities and the provisions imposing criminal sanctions
that the Constitutional Court had invalidated were barely mentioned.95 Indeed, only
two members even referred to the Court’s decisions in Commission IV meetings, and
even they appear to have misinterpreted, or even perhaps misconstrued, them by
failing to mention the need to improve legal recognition and certainty for customary
communities. Instead, the Commission seemed most concerned with protecting the
interests of plantation businesses. According to one member from the Democrat Party,
for example, the decision required: “a more detailed and specific provision to define
damaging action [tindakan yang merusak] which should be prohibited, to protect legal
certainty for business actors and to make law enforcement easier.”96
The concern to enact a more pro-business Plantation Law also appears evident
from deliberations about article 42 of the bill. One of the more unfortunately vague
provisions in the new Plantation Law, this provision requires businesses wishing to cul-
tivate plantations or process plantation products to obtain “land rights [hak atas tanah]
and/or a plantation business permit [izin usaha perkebunan].”97 During Commission
IV deliberations, a draft version of Article 42 required that both a right and a permit
were required to engage in these activities. But in the last meeting between the legisla-
ture and the government, Commission IV chairman Ibnu Multazam, of the National
Awakening Party, appeared to steer the forum towards a quick decision, suggesting
that “in principle, we need to expedite investment, I think we have to support [it] and
93
Law No. 39 on Plantations (2014), art. 55(b).
94
Id. art. 55 (a), (c), (d).
95
Comm’n IV (Indon. Parl.), List of Issues 504–34 (Sept. 15, 2014); Comm’n. IV (Indon. Parl.),
Parliamentary Notes (Sept. 15, 2014); Comm’n IV (Indon. Parl.), Parliamentary Notes (Sept. 24,
2014); Comm’n IV (Indon. Parl.), Parliamentary Notes (Sept. 26, 2014); Comm’n IV (Indon. Parl.),
Parliamentary Notes (Sept. 29, 2014).
96
Democratic Party Faction (Indon. Parl.), Parliamentary Notes (Sept. 26, 2014).
97
Law No. 39 on Plantations (2014) (emphasis added).
HGU is not under the Ministry of Agriculture’s authority anyway, so I think we use or
to be more flexible, or and/or maybe?”98
HGB refers to hak guna usaha, which is the right to cultivate. More sinister were
comments made by a representative of the Golkar Party, Siswono Yudo Husodo, in
his criticism of this double requirement. Husodo is an oil palm plantation owner who
served as a powerful minister during Soeharto’s New Order era.99 He said that
It is very dangerous [to require both]. If [we] have to wait to obtain an HGU, this is my daughter’s

best friend, a plantation owner, she has to wait for 15 years. So I am inclined to change and to
or, so [it becomes] “can only be carried out by a plantation company if it has obtained land
rights [hak atas tanah/HGU] or a plantation business permit [izin usaha perkebunan].100
This statement is consistent with some commentators’ claims that lawmakers were
pushing a hidden agenda—that is, to open more access for the liberalization and ex-
pansion of the plantation sector.101 Both the DPR and the government are said to
have been “captured” in the lawmaking process to advance the interests of plantation
owners and companies, as well as their own.102
In our view, the speed with which the bill was deliberated and enacted, and the ge-
neral lack of transparency and participation in the process, provided fertile ground
for those with vested commercial interests to ensure that the new Law would reinstate
the two provisions that the Constitutional Court invalidated in the Plantation Law case
and would further their commercial interests. The bill was rushed through to enact-
ment in less than a month,103 with only four days allocated to discussing it.104 This
allowed the Commission to avoid consultation with other ministries whose portfolios
relate to plantations and civil society organizations, which are often invited to provide
input into Commission IV and scrutinize the process for most statutes.105 Discussion
of the bill also attracted very little media attention, which was otherwise focused on
the 2014 presidential election campaign.106 All this meant that many of the bill’s
weaknesses were not identified, much less openly discussed and addressed.
98
Comm’n IV (Indon. Parl.), Parliamentary Notes 72–4 (Sept. 26, 2014). (Emphasis added.)
99
Siswono Yudo Husodo, Pengusaha Multidimensi, Teruji Bersih [Multidimensional Entrepreneur,
Tested Clean], Tokoh Indonesia (Apr. 17, 2010), https://tokoh.id/biografi/1-ensiklopedi/
pengusaha-multidimensi-teruji-bersih.
100
Comm’n IV (Indon. Parl.), Parliamentary Notes 72–4 (Sept. 26, 2014).
101
Josi Khatarina, Palm Oil in Indonesia and Natural Resources Management: Why the Lack of a Legal Framework?,
19 Austl. J. Asian L. 1, 8 (2018).
102
Id.
103
Indeed, though we found reference in correspondence between the DPR and the government to an aca-
demic draft, it is not known whether one was ever produced. We suspect that the haste with which the bill
was enacted would have made production of one impossible.
104
Comm’n IV (Indon. Parl.), Parliamentary Notes (Sept. 15, 2014); Comm’n IV (Indon. Parl.),
Parliamentary Notes (Sept. 24, 2014).
105
The key civil society organizations were not even aware that deliberations were taking place: Interview
with Andi Muttaqien, Deputy Director for Advocacy of the Institute for Policy Research and Advocacy
(ELSAM) and one of the Lawyers for the Plantation Law Case, Jakarta (July 26, 2017); Interview with
Gunawan, Senior Advisor for Indonesian Human Rights Committee for Social Justice, Jakarta (Aug.
24, 2017).
106
Khatarina, supra note 101, at 11.
5. Conclusion
On the evidence presented in this article, the extent to which constitutional review
is effective in Indonesia is mixed. There have been egregious examples of circumven-
tion—particularly, national legislation, regulations, and Supreme Court decisions
that revive norms the Constitutional Court has invalidated. But there have also been
clear examples of genuine responses, if not compliance, especially when the Court has
imposed a deadline on the legislature.

On a strict view, national legislation is the only legal means by which Constitutional
Court decisions can and should be responded to. As discussed in Section 3, the legisla-
ture has itself specified this (in the Law on Lawmaking and the Constitutional Court
Law). Why this choice was made is unclear, but it seems consistent with the Court’s
jurisdiction being only reviewing and, if necessary, invalidating statutes. It might
also reflect the potential importance and reach of the Court’s decisions. After all, the
Court, comprised of nine unelected judges, interprets and applies the Constitution,
which sits at the apex of Indonesia’s legal hierarchy. It would make sense, from a dem-
ocratic perspective, for the elected legislature to give full consideration to the Court’s
decisions and their ramifications through the legislative process. As elsewhere, this
process in Indonesia is designed to be transparent and participatory, and inviting of
public and expert scrutiny, including through an open media.107
Yet, as mentioned, the Court’s decisions have been followed up through national
legislation relatively rarely. Some commentators, and even the Court itself, have
attempted to explain this by pointing to the Court’s lack of enforcement powers.108 All
the Court can really do is meet its statutory obligation to send copies of its decisions to
the DPR, the President, and the Supreme Court, and to include, in the State Gazette,
its decisions that invalidate statutory provisions.109 In this way, these arms of govern-
ment, and other state institutions, are deemed to know about these decisions, and can
then consider how to respond.110
We argue, however, that this relatively low legislative follow-up does not neces-
sarily indicate that the legislature is dismissive of the Court and its authority, for two
reasons mentioned in Section 3. The first reason is the Court’s use of conditional
decisions, which have the effect of a statutory amendment and require no legislative
response unless the legislature disagrees with the Court’s conditions. Like statutory
amendments, conditional decisions tend to invite implementation or acknowledgment
in regulations, judicial decisions, government policy, or state actions, rather than in
legislation. In fact, it is arguable that, like legislation, these conditional decisions often
107
See, e.g., Lawmaking Law, supra note 66, art. 5 (referring to transparent and open processes) and art. 96
(establishing the right to public inputs and access to draft laws).
108
Mohammad Mahrus Ali, Meryinda Rahmawaty Hilipito, & Syukri Asy’ari, Tindak Lanjut Putusan
Mahkamah Konstitusi yang Bersifat Konstitusional Bersyarat Serta Memuat Norma Baru [Follow-up of
Constitutional Court Decisions That Are Conditionally Constitutional and Contain New Norms], 12 Jurnal
Konstitusi 635 (2015).
109
As required by the Constitutional Court Law, supra note 20, art. 57(3).
110
Siahaan, supra note 41, at 350.
will require some form of implementing regulation before they will be applied. This
might explain why some government ministers have issued regulations and circulars
soon after Constitutional Court decisions relevant to their portfolios.
The second reason is that the national legislature might, quite legitimately, decide to
not fill gaps that Constitutional Court invalidations leave, as discussed in Section 3, de-
spite the general expectation—held by some legal reformists, judges, and politicians,
among others—that the legislature should or must act. After all, the relevant statute
might not need any fixing if the Court has removed a constitutional defect from it.

Of course, political considerations are also at play. As one parliamentarian
expressed it:
Ideally, if a statute or an article was invalidated or interpreted by the Constitutional Court,
the DPR should make an adjustment [menyesuaikan] or make new legislation to follow up.
But in reality, the DPR will only respond to the MK decision if: the statute is listed on the pri-
ority list of the national legislative program, the statute/bill is being debated in the DPR, or the
Constitutional Court decision draws public attention or pressure. If the Constitutional Court
decision does not cause a legal vacuum, the DPR will not respond. . .. After all, a statute is a
political product. If there is no political interest in it (to produce or to amend), the DPR won’t
respond. The decision to or not to respond depends on political interests.111
But all this does not mean that the legislature simply ignores Constitutional Court
decisions at its own discretion. In fact, it reliably responds when the Constitutional
Court imposes a deadline for the enactment of new legislation or amendments to
statutes it finds unconstitutional. To our knowledge, the legislature has always met
these deadlines. The legislature has also enacted legislation in response to some
Constitutional Court decisions that do not impose deadlines, albeit usually several
years after those decisions were issued.112
However, as this article has shown, Constitutional Court-prompted legislative
responses do not always lead to favorable results for constitutional rights and for the
individuals or groups who brought the constitutional challenge. As our two case
studies demonstrated, the legislature is not averse to reviving provisions the Court
invalidated or to pursuing vested interests, whether commercial (such as in the statute
enacted after the Plantation Law case) or institutional (such as in the Pesisir Law
amendments, where the MMFA was able to include provisions that gave it control over
coastal conservation areas). These outcomes were achieved, in part, by subverting
aspects of the legislative process apparently designed to encourage transparency and
public participation, and even inputs from relevant ministries.
Of course, the legislature can, whether responding to a Constitutional Court deci-
sion or not, enact statutes or amendments as it so pleases, subject to the Constitution.
However, whether the legislature can, legally, contradict a Constitutional Court de-
cision depends on an issue discussed earlier: whether only the Court’s decision is
binding, or whether the reasoning that leads to that decision is also binding. If the
answer is—as the legislature appears to think—that only the decision is binding, then
Interview with Arsul Sani, Jakarta (Aug. 25, 2017).

111
Murharjanti, supra note 4.

112
the legislature can simply override any invalidation by enacting new legislation to
replace it, even if that new legislation contains similar or the same terms that the
Court invalidated. Unfortunately, this view greatly weakens the separation of powers
because the Constitutional Court cannot be said to effectively check the exercise of
legislature power. It also does not bode well for constitutionalism in Indonesia if the
legislature sees itself as being able to simply revive norms or statutes that the Court
has already declared unconstitutional.
We speculate that the new Plantation statute and the Pesisir amendments would

probably not have been made—as quickly, or at all—but for the Constitutional Court
decisions. Legislative reform to these laws was signaled by their inclusion, along
with around 250 others, in the legislature’s five-year “long-list” legislative plan. But
they were not included in the annual breakdown of the legislative program (program
legislasi nasional, or “Prolegnas”) in the years that they were enacted. In other words,
even though they might have appeared on the legislative horizon, their enactment
was far from imminent and by no means certain. Indonesia’s legislative process is no-
toriously slow, politicized, and corrupt, meaning many drafts or planned drafts are
superseded by other legislative priorities, often politically determined. In recent years,
for example, national legislative output has been around fifteen new laws per year, de-
spite setting itself a target of around fifty bills.113 In the end, the Court’s decisions were
really only peripheral to the interests pursued in the legislative responses.
The Plantation Law saga did not end with the enactment of this new statute. The
Plantation Law was challenged twice within a year of its enactment: once by a group
of NGOs and again by a group of farmers.114 The Constitutional Court refused to pro-
ceed with the farmers’ claim for technical reasons, but proceeded to full hearing and
decision in the NGO case. The NGOs requested the Court to invalidate a variety of
provisions, including the reinstated criminal provisions and article 42 of the Plantation
Law (which, as mentioned, required plantation enterprises to obtain land rights “and/
or” a permit). The Court found the criminal provisions and article 42 unconstitu-
tional. This time it issued a conditional decision, holding that customary communities
must be excluded from the operation of the criminal provisions. In theory, this should
prevent their “criminalization” for working on plantation land or harvesting planta-
tion products.115 As for article 42, the Court required plantation businesses to obtain
both land rights and plantation business permits to legally operate.116
By issuing this decision, the Court appears to have frustrated attempts by lawmakers
to use the amendments as an opportunity to allow plantation businesses to operate
with only one type of permit. Legally, the only constitutional interpretation of the new
Plantation Law is the one that the Court gave. When applying the new Plantation
Law, government authorities should give effect to the conditions the Court imposed.
113
Rizky Argama, The 2020 Prolegnas: Here We Go Again, Indon. at Melb. (Mar. 2, 2020), https://
indonesiaatmelbourne.unimelb.edu.au/the-2020-prolegnas-here-we-go-again/.
114
Constitutional Court Decision 122/PUU-XIII/2014, May 31, 2016; Constitutional Court Decision 138/
PUU-XIII/2015, Oct. 27, 2016.
115
Constitutional Court Decision 138/PUU-XIII/2015, Oct. 27, 2016, at 284–85.
116
Id. at 294–5.
For example, police and prosecutors no longer have a legal basis upon which to
pursue customary communities who occupy or use plantation land that has long
been controlled by that community, even if this disrupts the operations of a plantation
business that meets the legal requirements to operate that business. It also means that
the government officials who authorize plantation activities must ensure that planta-
tion businesses have both a right to use the land in question for a plantation and have
a permit to work and cultivate that land.
These reviews of the Plantation Law might seem like a victory for the applicants,

and could be interpreted as the Court reasserting its authority. But they also underline
that the way the Court’s decisions are applied, if at all, is out of its hands. Whether
the Court’s conditions are respected depends on, first, whether regulations are issued
to inform law enforcement officials and bureaucrats about the decision and to direct
them how to give effect to it, and, second, whether other courts apply these decisions
in their own cases. If these things do not happen, then the Constitutional Court’s de-
cision may well be ignored. Worse, the government could take the much procedurally
simpler and less transparent route to achieve its desired ends by regulation rather than
by statute, with the confidence that the regulation will fall outside of the purview of
the Court. As discussed in Section 3, this has now happened several times.
In our view, the Constitutional Court must begin being more specific in each deci-
sion about who it expects to respond to that decision and what the response must be.
If the response by the legislature to the Court’s imposition of clear deadlines is any-
thing to go by, then more specific decisions may increase the likelihood of compliance
in a way the Court would agree with. We fear, however, that the Court is unlikely to
take this course: doing so would arguably constitute an admission that conditional
decisions involve lawmaking. This in turn would invite those to whom its decisions are
addressed to claim that the Court lacks power to issue orders directed to them.

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© The Author(s) 2022. Published by Oxford University Press.

What constitutes compliance?

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I•CON (2022), Vol. 20 No. 1, 428–453 https://doi.org/10.1093/icon/moac014

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2. The Indonesian Constitutional Court

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2.1. Limiting effects: Prospectivity and abstract review

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2.2. Types of decisions

there is significant uncertainty as to the circumstances in which provisions declared

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2.3. Reviewing regulations?

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3. Compliance: Variations and complications

As a starting point, we note that it is accepted in Indonesia that Constitutional Court

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3.1. Must national statutes be used to comply?

Lawmaking Law No. 12 (2011), amended by Law No. 15 (2019).

with Constitutional Court decisions in Indonesia. About half of all responses to

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3.2. Compliance through inaction

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3.3. Use of regulations

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3.4. Judicial (non)compliance

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3.5. Compliance in a future statute

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4. The Coastal and Small Islands Law and Plantation

4.1. The Coastal and Small Islands Law (Pesisir) case

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b) Legislative response

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Indonesia (Aug. 28, 2013), https://ekonomi.bisnis.com/read/20130828/99/159350/izin-usaha-di-

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powers of local governments to manage natural resources,72 prompted by fears that

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b) Legislative response

Law prohibits plantation businesses from occupying and controlling community or

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Interview with Arsul Sani, Jakarta (Aug. 25, 2017).

Murharjanti, supra note 4.

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