Ungerminated Seed: Proportionality Test in the Indonesian Constitutional Court

Abstract

This article examines how the Constitutional Court of the Republic of Indonesia (the Court) constructs its argumentation regarding the limitation and derogation of human rights. The primary issue is how the Court interprets and operationalises the limitation clause under the Constitution of the Republic of Indonesia to derogate from and limit human rights. This article also illustrates how the Court applies the derogation and limitation clauses to freedom of religion, the right against retroactive prosecution and the death penalty, the right of women to stand for election, and the right to freedom of expression. The Court has never ruled on a case of derogation of human rights; however, it has applied a limitation clause to derogate from non-derogable rights. It appears that the Court is “trapped in confusion” in applying limitation and derogation clauses to human rights. This study finds that the Court conflates limitation and derogation of human rights; the Court uses the limitation clause to derogate from rights classified as non-derogable; and the Court has yet to apply proportionality testing in implementing the limitation and derogation clauses on human rights.