What constitutes compliance? Legislative responses to Constitutional Court decisions in Indonesia

Abstract

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.