When Bureaucracy Overrides the Constitution: Indonesia’s Silent Judicial Coup -By Fransiscus Nanga Roka, Yovita Arie Mangesti

The boards of dreams. Language is another country; and few can even utter its name. Only later you are quite justifiably pleased with yourself did you realize what a philosophical outlook a habit it was living in such a spiritual environment and that you yourself naturally. Or after descending the mountain on which you stayed with a group of friends you vibrated out in a different key from the world entirely no matter what obviously out of date name it might be trying to designate human life and think fit, and knew this was an American triumph, marking the beginning of a new era.

Therefore, this phenomenon has to be seen as a quiet judicial coup.In contrast to classical coups, which are sudden and open, this operates by paperwork. The mechanism is procedural not political. And what starts-then appears as a formal instruction becomes external law.In terms of constitutional theory, the important thing is the hierarchy. According to the model of Hans Kelsen’s Stufenbau, the lower norms derive their validity from the higher ones. For a constitutional judgement nothing can supercede an interpretive deed. So when looking at a reinstated norm as SEMA 3/2023 it has already been cancelled by the MK, and the vertical hierarchy collapses. The lower order now becomes operationally higher.

Constitutional supremacy in practice is symbolic not functional.The essence of bureaucratic constitutional displacement is this.Contracting out comparative constitutional systems reveals sharply contrasting features. In the States, administrative instruments cannot give life to constitutional principle; the Supreme Court is still interpreter supreme. In Britain, practice directives never override judicial precedent. Singapore and South Korea, although living under strong judicial bureaucracies, possess statutory firewalls and administrative instruments cannot take on the mantle of constitutional interpretation.

Indonesia, by contrast, has no mandatory anti circular template constitutional screen for the courts. In a dual centre system without a structural bulwark, administrative self assertion can become interpretive usurpation.The problem is not that Indonesia has two top courts. It is that the boundary between administrative governance and constitutional adjudication has yet to be firmly laid down.Some scholars use the term “judicial dialogue” to describe tensions between the MA and the MK. This is a misnomer. Dialogue implies a mutual interpretive engagement. What we see here is not engagement, but replacement. The constitutional meaning originally set by the MK is functionally neutralized by administrative action.The coup is epistemic not institutional. It does not end the existence of the Constitutional Court; it only makes that existence practically irrelevant in certain domains.

Swann’s dissent encapsulated this everywhere: “To where does it lead if administrative instruments hasten the revival of terminated norms, then this constitutional finality becomes an illusion?”If internal directives can carry external constitutional weight, then the separation between adjudication and administration dissolves.The legal system is in danger of fragmentation norm production no longer has a vertical structure but is scattered along bureaucratic centers. Over time this fragmentation erodes legitimacy.Constitutional supremacy is meaningless without a willingness to apply it. The rule of law shifts from constitutional government to management competence once constitutional decisions can be bypassed by regular administrative practice.For instance, academia will not work as long over the issue of interpretation in judicial circles or meeting legislative usages if structural safeguards are not in place.Indeed, three reforms are sorely needed.First, Parliament must insert a constitutional review clause into the Judicial Law of Power, which explicitly binds all the sub national instruments SEMA and PERMA to MK assessments.Second, there also needs to be a system of mandatory constitutional control that would review judicial circulars before they take effect. Preventive supervision is always more effective than subsequent correction.

Finally, a mechanism for the institutionalization of co-ordination between the MA and MK should be developed with the opening of an inter-court chamber for interpretation involving constitutional edges. For systems of dual apex courts, structured convergence is necessary and informal expectation is irrelevant to the task.

Indonesia’s transition to democracy was founded on constitutional restraint. If administrative instruments are allowed to overthrow constitutional judgements, that whole transformation will be reversed not by force of authority taking over, but as an insidious bureaucratic process.A silent judicial coup never bids out loud. It insinuates itself through routine and circulars and the harmonization of administration. It looks perfectly normal.But constitutional erosion seldom starts with flag-waving, it generally starts from following electronic message.If Indonesia’s constitutional supremacy still means anything at all, the state must take care that no circular letter no matter how benevolent it was meant to be, can quietly edit what has been said in the Constitution.