The judicialisation of discrimination in the Indonesian constitutional court
| Author | Mohammad Ibrahim |
| DOI | 10.1177/13582291221094923 |
| Published date | 01 June 2022 |
| Date | 01 June 2022 |
| Subject Matter | Articles |
Article
International Journal of
Discrimination and the Law
2022, Vol. 22(2) 125–151
© The Author(s) 2022
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DOI: 10.1177/13582291221094923
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The judicialisation of
discrimination in the Indonesian
constitutional court
Mohammad Ibrahim
Abstract
Following the post-Soeharto constitutional reform from 1999 to 2002, the Indonesian
Constitutional Court was established with powers, inter alia, to review the con-
stitutionality of national legislation. The constitutional amendments also incorporate d a
constitutional Bill of Rights, which includes the right to be free from discrimination on any
ground and the right to protection against discrimination under Article 28I(2) and the
right to equality before the law under Article 28D(1). However, the Constitution does
not specify an enumerated list of grounds against which discrimination is prohibited. This
article examines a body of constitutional jurisprudence in Indonesia, an Asian civil law
country with no formal system of precedent. It seeks to determine the extent to which
the Indonesian Constitutional Court has protected the citizens’fundamental rights of
equality and against discrimination. Through describing and analysing three court deci-
sions on the principles of equality and non-discrimination, this article argues that the
Indonesian Constitutional Court, in its early years of operation, took these principles
seriously. Nevertheless, in its later decisions, the Court departed, albeit not explicitly,
from its earlier ruling by relying on ‘the belief in One God’and ‘the religious values
consideration’under Articles 29(1) and 28J of the Constitution to restrict the funda-
mental rights of equality and non-discrimination. Consequently, the Court has unjusti-
fiably held that discrimination is not prohibited insofar as it is in accord with religious
orthodoxy.
Keywords
Discrimination, Indonesia, Constitutional Court, grounds, human rights
Faculty of Law, Universitas Gadjah Mada, Yogyakarta, Indonesia
Corresponding author:
Mohammad Ibrahim, Faculty of Law, Universitas Gadjah Mada, Jl. Sosio Yustisia No. 1, Sleman, Yogyakarta
55281, Indonesia.
Email: mohammadibrahim@ugm.ac.id
Introduction
At the beginning of the 21st century, Indonesia, the world’s third-largest democracy with
the largest Muslim population, witnessed a general process of judicialisation of politics.
The judicialisation of politics is defined as ‘the reliance on courts and judicial means for
addressing core moral predicaments, public policy questions and political controversies’
(Hirschl, 2008: 119). One of the driving forces of this development has been democratic
constitutional reform that strengthened the judiciary’s role (Dressel and Bünte, 2014: 14).
The democratisation process that began after the downfall of Soeharto’s authoritarian
regime has brought a fundamental change in regard to the country’s constitutional
landscape. Following the controversy surrounding the impeachment of President Ab-
durrahman Wahid in 2001, Indonesia’s politicians deliberately opted to create a specialist
Constitutional Court as a direct response to the lack of referees in Indonesian politics.
1
This was manifest in the constitutional amendments approved unanimously by the
People’s Consultative Assembly (Majelis Permusyawaratan Rakyat) that mandated the
establishment of such a court (Mietzner, 2010: 403).
2
In the first decade since its establishment, the Court also seemed to have expanded civil
and democratic rights through its decisions in cases of judicial review of legislation.
3
The
Court’s decisions that guaranteed the fundamental rights of the Indonesian citizens can be
primarily attributed to the incorporation of a constitutional Bill of Rights into the
Constitution during the second constitutional reform in 2000. Chapter XA, which
comprises Articles 28A-J of the Constitution, many of which were taken directly from the
Universal Declaration of Human Rights (the UDHR) (Lindsey, 2004: 295). Not only does
it provide protection of civil liberties such as the right to freedom of religion, the right to
freedom of expression and the right to equality before the law, but also the Constitution
guarantees social and economic rights such as the right to education, the right to health,
the right to a healthy environment and so forth.
When it comes to discrimination, more specifically, the Constitution provides that
‘Each person has the right to be free from discriminatory treatment on any grounds
whatsoever and has the right to obtain protection from such discriminatory treatment’.
4
It
is important to note that the Constitution does not expressly enumerate the protected
grounds based on which discrimination is prohibited. This might lead to confusion
concerning what constitutes prohibited discrimination under the Indonesian constitutional
framework. Notwithstanding, the Constitutional Court has decided on various cases that
involved discrimination for almost two decades of its operation. As a result, the Court has
developed a body of jurisprudence concerning what constitutes prohibited discrimination,
as will be demonstrated in the case studies below.
The Indonesian Constitutional Court is a judicial institution established in the af-
termath of the post-Soeharto constitutional reforms. It has the jurisdictions to review laws
or statutes to comply with the Constitution, decide on the dissolution of political parties,
disputes between state institutions whose powers are given by the Constitution, disputes
over the result of general elections, and supervise impeachment.
5
The average caseload
each year was at 79 cases for constitutional review, 103 and 1.5 cases for electoral disputes
126 International Journal of Discrimination and the Law 22(2)
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