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23 Austl. J. Asian L. 1 (2022)

handle is hein.journals/ajal23 and id is 1 raw text is: Australian Journal of Asian Law, 2022, Vol 23 No 1, Article 01: 1-19 Why do Indonesian Judges Dissent? Simon Butt* All Indonesian judges have been able to issue dissents for almost two decades. But the introduction of dissents was not preceded by debate about the purposes they may serve. One of the earliest discussions about dissents was written by former Supreme Court Chief Justice Bagir Manan for a judicial audience and published two years after dissents were introduced for all judges. There, Manan examined the advantages of dissents (including increased transparency and accountability) as well as disadvantages (including promoting judicial disagreement). The present article examines the extent to which Indonesian courts have used dissents to achieve advantages Bagir explained. This enquiry is pursued through a comparative analysis of dissents in Supreme Courl judicial ret iew decisions and lhe lissents of one of Inldonesi's most famous dissenters .Justice Maria F'ridi Indrai - in (ntslitutlional Conrt rev iew cases. Th7is arlicle dem<onstrales llat. dlespile allowing judrlges to express lleir indleplendene. dissents hate. in praclice. not IppreiIbly imriovel tlhe lransparncy and accontlability o jilicial lecision-miaking in Inldonesial. Prior to 11))). Inlonesian juIges working in julicial panels hadu been encouraged to resolve any differences olopinion through 'dIeliberat ion lo reach consensus (m usyaararh-mufaat/). However, if this f'ailed,. the juIges would( enlorse either the majority (decision or the (lecEision prel'erredI by the panel chairperson. .Any lilering opinions were expressed in a separate locument held by the chairperson of Ihe court in which the (decision was madIe.1 In 11))). Inlonesia's commercial courts ()0nadttila n niag,() were established( with power to issue (issents. bui very rarely cidc s. However, in 2004,. all Indlonesian judiges were, by st atut e,2 grantedl power to writ e ap/endatr/ bierbiedar lit erally 'differeni opinion . a phrase that encompasses bot h dissenting and concurring opinions. Iven though the power to issue (dissents is provided in various laws and is exercised( by Inlonesian juIges. precisely why dissents were introdcedt in Inlonesia has,. o my knowledge, never been clearly ariciulatled. at least not in any publicly available locumeni. Perhaps surprisingly. almost two (decades on. ihere has still been very little debate. let alone consensus,. in Inlonesia's usually active legal community about lissents and( what use juIges can anI shoulI make ot'ihem. The main exception was an article published( by t hen Supreme Court ('hie'Justice B7agir Manan in 1taria Perrilan - an official publication of Ihe Inlonesian lJud(ges .\ssociation (lkalan IHakim Inlonesia). This was proluced two years after juIges in all Inlonesian courts became legally authorisedl to issue issenIs. Enitled 'Dissent ing Opinions in Indonesia's Julicial System' (Ma Inan. 2006), Manan's article did not seek to justify the introduction of dissents in Indonesia's judicial system. Rather, its main purpose was to outline the potential advantages and disadvantages of dissents within the Indonesian judicial system. This article has two main objectives. The first is to critique Manan's views about dissents, including the purposes for which they can be, or are, used (such as to improve judicial transparency and accountability) and some of their perceived drawbacks (such as creating legal uncertainty and complexity, and indicating a divided court). The second is to begin to assess the extent to which Indonesian courts use dissents for the purposes that Manan and other writers have identified. It would be impossible to make this assessment based on the practices of all Indonesian courts. Here, I confine my enquiry to the dissents in constitutional review decisions issued by the Constitutional Court, briefly comparing them with Supreme Court dissents in broadly similar cases. The Constitutional Court, established in 2003, performs constitutional review of national statutes, among other functions. In these cases, the Constitutional Court, upon the application of petitioners, examines whether laws enacted by the national legislature are consistent with the Constitution. If Professor of Indonesian Law, University of Sydney Law School. 1 Supreme Court Chief Justice Decision No KMA/039/SK/X/1994 on Book III on Guidelines for the Implementation of Supreme Court Tasks and Administration. 2 Articles 19(2), (3) and (4) of the Judicial Power Law and arts 30(3), (4) and (5) of the Supreme Court Law.

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