The Indonesian Proposal to Establish a Constitutional Supremacy Index

M Lutfi Chakim

Constitutional Court of the Republic of Indonesia

As the supreme law, the constitution is formed to regulate the national identity of a country, protect human rights, and limit the power of the state. However, upholding the constitution is a long and difficult process. One problem faced by many countries in upholding the constitution is that there is a huge gap between constitutional text and constitutional reality. The most common argument put forward for this is that the implementation of the constitution involves the dynamic between political, economic, and social powers, as well as the character of each country.

Considering the implementation of the dynamic constitutional system in each country, one of the key questions raised is what mechanism may be used to measure constitutional compliance by the government? The idea that the performance of a constitution can be evaluated is highly interesting in the context of constitution-building. With the development of the constitution, what constitutions seek to achieve and how they achieve it has become an important topic of discussion. 

Possible mechanisms to measure progress and developments towards constitutional compliance were discussed during the 5th Congress of the World Conference on Constitutional Justice (WCCJ), held in Bali Indonesia, on 4-7 October 2022. The Chief Justice of the Indonesian Constitutional Court was one of the speakers to echo the key idea expressed at the 5th WCCJ Congress, namely to establish the Constitutional Supremacy Index:

“Constitutional judicial institutions should balance the roles of other state institutions and oversee the implementation of the principles of constitutional supremacy and the protection of the citizen’s constitutional rights. Therefore, the MKRI [the Constitutional Court of the Republic of Indonesia] initiated the discourse on the constitutional supremacy index so that we all have a universal benchmark or parameter of compliance and implementation of the constitution. The discourse on the index of constitutional supremacy, of course, does not have to be finalized at this meeting, but at least it is a discourse that we should reflect on and consider for discussion in the future.” 

The Constitutional Supremacy Index is a mechanism to measure progress and developments towards constitutional compliance in each country that is in line with the principles of constitutionalism.

The Bali Communiqué, which was adopted by the participants of the 5th Congress, supported this proposal stating:

“Furthermore, considering the dynamic constitutional system in each country, the congress noted the initiative of the Constitutional Court of Indonesia to establish a Constitutional Supremacy Index (CSI) to measure the progress and development toward constitutional compliance, in line with the principles of constitutionalism.”

While the Bali Communiqué was an important step for Indonesia’s initiative, a concrete follow-up is of course necessary. The next step is to prepare to form broader indicators of constitutional compliance. A simple approach is to focus on whether branches of government have responded to an express mandate in the constitution to pass legislation, make policy or perform a specific action. 

The Constitutional Supremacy Index captures adherence to the supremacy of the constitution through a comprehensive and multidimensional set of outcome indicators, each of which reflects a particular aspect of the complex concept of the constitution. The protection of human rights is a very important measurement indicator, whereby the government is immediately obliged to respect, protect, implement and advance the human rights contained in the constitution. Another key goal of the constitution is democracy  which requires setting up a democratic system of governance. The principle of free and fair elections must be implemented and active participation of citizens in government is required. Another important indicator is social justice; one of the purposes of constitutions such as the Indonesian Constitution is to establish a society based on social justice, so the state must implement the constitutional mandate to realize social justice for all citizens. Moreover, conflict resolution is also an important indicator that can contribute to reconciling conflicts by favoring solutions that remain within the framework of the constitutional order.

Looking at the existing literature, some approaches to measuring constitutional compliance have already been proposed which explicitly measure the gap between de jure constitutional provisions and what is then implemented de facto. Law and Versteeg (2013) produced the first dataset of what they call constitutional underperformance. They measure constitutional compliance with respect to constitutional rights divided into three categories: personal integrity rights, civil and political freedoms, and socio-economic and group rights. In addition, Ginsburg and Huq (2016) outline two perspectives from which the constitution performance can be evaluated. The first perspective is an “internal” one that seeks to evaluate of a constitutional performance against its own self-declared goals. The second perspective, which is an “external” one, evaluates constitutions against a set of general objective standards about what constitutions should do.

I believe that in order to get such a complex project moving, many state actors have to work together. The establishment of the Constitutional Supremacy Index can be initiated by the permanent secretariat of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC), the Venice Commission, or a new international organization that focuses on measuring constitutional compliance in each country.

M Lutfi Chakim is a Justice’s Expert Assistant at the Constitutional Court of the Republic of Indonesia

Suggested Citation: M Lutfi Chakim, ‘The Indonesian Proposal to Establish a Constitutional Supremacy Index’ IACL-AIDC Blog (10 November 2022) https://blog-iacl-aidc.org/new-blog-3/2022/11/10/the-indonesian-proposal-to-establish-a-constitutional-supremacy-index.