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'Conditional Constitutionality',

Pragmatism and the Rule of LawFriday, May 02, 2008

On 20 April 2008, a majority of the Indonesian Constitutional Court (with

Marzuki as the sole dissenting judge) turned down an application for review of

Law No 8 of 1992 on Film. The applicants primarily actors, producers and

others involved in the film industry had objected to several aspects of the Law,

but their particular focus was provisions relating to censorship.

Despite formally rejecting the application, however, the Court declared that the

statutes provisions on censorship were behind the spirit of the times that is,the spirit of democracy and respect for human rights (MK Decision No 29 of

2007, p. 230). Nevertheless, fearing a legal vacuum and the resulting legal

uncertainty that striking down the statute would produce, the Court allowed the

Law to remain in force provided that, in its implementation [by the Censorship

Board], it is given a new spirit to uphold democracy and human rights (MK

Decision No 29 of 2007, pp. 230-31). The Court left the statute conditionally

constitutional (MK Decision No 29 of 2007, p. 231).

Since it was established in 2003, the Constitutional Court (Mahkamah Konstitusi ,

or MK)has declared other statutes to be conditionally constitutional. It is has

done this when it has been concerned about the constitutionality of a particular

statute, but not sufficiently concerned so as to justify striking down that statute.One example is the Water Resources Law case (MK Decision No 058-059-060-063 of 2004 and 008 of 2005, reviewing Law No 7 of 2004 on Water Resources).

In this case, the MK raised questions about the constitutionality of the WaterResources Law, but refused to invalidate it, stating that the future validity of the

statute depended in large measure on how it was enforced, and whetherregulations passed later to implement the statute were themselves constitutional

(Water Resources Law case, 2004, p. 495).

In other cases, the Court has declared a statute to be unconstitutional, but has

stopped short of removing it from the statute books with immediate effect. In the

case involving the constitutionality of Indonesias Anti-Corruption (Tipikor)

Court (MK Decision No 012-016-019 of 2006), for example, the Court decidedthat the establishment of the Tipikor Court was unconstitutional, but allowed the

Tipikor Court to continue operating for three years. This would, the Court

anticipated, give the Indonesian parliament time to enact a new Tipikor Court

statute to grant the Tipikor court exclusive jurisdiction over all corruption cases.

Further examples of this can be found in a series of cases in which the allocation

of funds to education made in the national budget was challenged for falling

below the 20% minimum required by Article 31(4) of the Constitution (MK

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Decision No 012 of 2005, reviewing Law No 36 of 2004 on the 2005 National

Budget; MK Decision No 026 of 2005, reviewing Law No 13 of 2005 on the 2006

National Budget). In these cases, even though the statutes in which the budgets

were contained were in flagrant conflict with the Constitution and hence wereunconstitutional, the Court refused to declare the budget invalid. The Court

admitted that this was a decision informed largely by pragmatic rather than legal

considerations, but insisted that the consequences of declaring the budget invalid

would be too grave. Instead, the Court declared that it would be satisfied if the

budget for education increased from year to year.