The Dissolution of Political Parties in Indonesia: Lessons Learned from the European Court of Human Rights

By Faiz, Pan Mohamad | Journal of Legal, Ethical and Regulatory Issues, January 1, 2019 | Go to article overview

The Dissolution of Political Parties in Indonesia: Lessons Learned from the European Court of Human Rights


Faiz, Pan Mohamad, Journal of Legal, Ethical and Regulatory Issues


INTRODUCTION

The 2002 constitutional reform created many fundamental changes in the Indonesian constitutional structure. To strengthen the checks and balances system among governmental powers, the Indonesian Constitutional Court was established in 2003 as a separate judicial institution from the Supreme Court (Butt, 2015). The Constitutional Court was granted the power to dissolve political parties based on the government's request. Before the establishment of the Constitutional Court, the government has dissolved several political parties, such as the Masyumi Party, the Indonesian Socialist Party/PSI, and the Indonesian Communist Party/PKI (Madinier, 2015). Ironically, for these cases the government made a unilateral decision without referring to the judicial process (Asshiddiqie, 2005; Safa'at, 2011). As such, granting authority to dissolve political parties to the Constitutional Court is a limitation of the government's power. It establishes a judicial forum that offers an opportunity for political parties to defend their rights, as well as to challenge the government's justifications for dissolving political parties. This forum aims to provide a fair, transparent, and accountable judicial process.

Although regulated in Indonesian Political Parties Law, the Constitutional Court is yet to receive or handle a case on the dissolution of political parties to date. Therefore, it has become relevant to learn of the experiences and general principles established by other countries in dissolving political parties through the court should a similar case arise in Indonesia. The reason for its importance is that Indonesia is a state party to the ICCPR. Consequently, Indonesia is committed to respecting international human rights norms and following the existing jurisprudence of human rights bodies.

RESEARCH METHODOLOGY

The legal references referred to in this research are drawn from various international and regional conventions, including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Convention on the Elimination of Racial Discrimination, the United Nations Convention against Corruption, and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). In addition, it also uses relevant academic references from books, journal articles, and reports to strengthen its arguments. As a comparative study, the analysis in this research refers to important decisions in Yazar, Karataş, Aksoy and the People's Lab our P arty (HEP) v. Turkey case; United Communist Party of Turkey and Others v. Turkey case; Refah Partisi (The Welfare Party) and Others v. Turkey case; Socialist Party of Turkey (STP) and others v Turkey case; Herri Batasuna and Batasuna v. Spain case; and Nationaldemokratische Partei Deutschlands (NPD) v. Germany case.

RESULT AND DISCUSSION

There is only one article in the Indonesian Constitution relating to the dissolution of political parties. Article 24C does not detail the process that should be used by the Court to dissolve political parties, only offering an explanation of the initial and final stage of the decision process. Nevertheless, Law 24 of 2003 states that the government is the only entity that can file an application for the dissolution of political parties before the Constitutional Court. The application must describe clearly that which is outwardly against the law, be it the ideology, the principles, the objectives, the program or the activities of the political party concerned. However, if the application does not meet the requirements, it shall be rejected and deemed as inadmissible.

The legal standards when assessing the compatibility of the ideology, the principles, the objects, the program or the activities of a political party with the Constitution are a pivotal matter. …

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