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  • 7 - Against the Currents

  • from Part II - Anemic / Ad Hoc Proportionality
  • Edited by Po Jen Yap, The University of Hong Kong
  • Book:
    Proportionality in Asia
    Published online:
    18 September 2020
    Print publication:
    27 August 2020, pp 169-191

  • Summary

    This Chapter will show that this structured model of proportionality does not exist in the Indonesian constitutional realm, even though the term proportionality has been formally used by the Constitutional Court since 2010.While there is a textual basis under the Indonesian Constitution for constitutional rights to be balanced with other important interests – Article 28J (2) of the 1945 Constitution – the Indonesian Constitutional Court has used Article 28J (2) instead as an interpretative tool to limit or ignore the bill of rights. The Court’s jurisprudence to date suggests that the Court considers Article 28J (2) as a “trump card” to override constitutional rights. This Chapter further argues that the principle of proportionality has never flourished in Indonesian soil because of the lack of intellectual leadership in the Constitutional Court. The majority of the Constitutional Court Justices are not well versed with the notion of proportionality, and the Indonesian legal academia has also failed to generate a robust discussion on the principle of proportionality.