Constitutional Approaches to Diversity and Nondiscrimination in Multi- level States: Indonesian and South African Jurisprudential Perspectives

Abstract

This chapter examines the Indonesian Constitutional Court's decision on the strict requirements for the candidates running for governor and deputy governor in the Special Region of Yogyakarta, which had limited the field of eligible candidates to only two men. The Court upheld the unique qualifications based on traditional leadership positions but invalidated national legal provisions that added discriminatory requirements based on gender. Notably, this decision paves the way for a woman to become the provincial governor of Yogyakarta. Although the governor and deputy governor must still be the Sultan of Ngayogyakarta Hadiningrat Sultanate and the Duke of Pakualaman, respectively, a requirement that they have wives was found to contravene the prohibition of gender discrimination. The Court's decision raises broader questions about the balance between autonomy and national unity, particularly in relation to decentralization, diversity, and a bill of rights. How is the balance struck between autonomy and national unity as expressed in a bill of rights? The Indonesian Constitutional Court's decision offers a comparative perspective on how the South African Constitutional Court has addressed similar questions. In both Indonesia and South Africa, a bill of rights serves as a crucial check on imbalanced power dynamics between sub- national entities by limiting their autonomy. The impact of the bill of rights on traditional leadership and customary law has already been observed in South Africa, where customary law must be allowed to align with the demands of nondiscrimination on the basis of gender.