Legal Export from Germany

Indonesia has a new constitutional court. German Constitutional Court judges have followed the development. Their experience should also help with the upcoming judicial reform. Diana Peßler reports

Indonesia is opening up. The country has been moving toward democracy since the fall of Suharto's dictatorship in 1998. The international community is supporting Indonesia's democratic changes, both financially and ideologically. The German Federal Constitutional Court, for instance, has been maintaining contact to Indonesia for years, sharing experiences about the treasure chest of democracy-the constitution. And about its guardians, the constitutional court judges.

Only two years preparation time

Indonesia has had a constitutional court since August 2003-the Mahkamah Konstitusi Indonesia (MKI). It was established very quickly, after only two years of preparation, according to German Federal Constitutional Court judge Siegfried Bross.

He has had many discussions with Indonesian delegations over the past few years. "Obviously, the idea developed quickly that the constitution is something so great, it must have legal safeguards," Bross continued.

Comparing experience

As Indonesians were establishing their new constitutional court, they kept posing questions to the German Constitutional Court judges. On a broad spectrum of subjects. Why the Federal Constitutional Court in Germany does not take on constitutional questions of its own accord, for example, but only when petitioned. Or how the German Constitutional Court is made up?

The point is not for Indonesians to adopt all of Germany's experience. "It's not that there is something wrong with the German legal system, but it is not suited everywhere," said Siegfried Bross. That is why he always suggests that a country should first make its own experience and then look to see if another route might have been better.

Privatization and the Headscarf Decision

Indonesians have also consulted the German Constitutional Court judges on current issues. At present the privatization of public services is on the agenda in Indonesia. The World Trade Organization (WTO) continues to liberalize worldwide trade and Indonesia wants to keep up with developments. So Bross told them how things went with privatization at the time of German unification.

Indonesians recently found the German Constitutional Court decision on headscarves to be very interesting. How far can religious freedom be taken? What is the status of the churches in Germany? "So we gave a lesson in state church law," said constitutional court judge Bross.

Germany is in a special situation in that religious communities are independent of the state, but they are still subject to state law. Most German states chose a strict principle of separation of church and state.

Party bans in Indonesia and Germany

The rights and position of constitutional institutions in Indonesia have also not yet been clarified to the last detail. The Indonesian constitution is based on a draft of 1945; to today it still says nothing about options for unseating the president. Bross said he discussed that point with the delegations; and also who is able to implement bans on political parties in Germany.

Ex-dictator Suharto had banned the Communist Party in 1965 on his own authorization. The Indonesian delegations were interested in German experience with the ban on the German Communist Party (KPD) in 1956.

Bringing law into everyday life

Expert discussions notwithstanding, Bross said it ultimately comes down to transferring an awareness of law into daily experience. People have to live their constitution. He said there shouldn't be a problem regarding equal rights.

Ninety percent of the population is Muslim, but he was surprised when visiting Indonesia that men did the cleaning in his hotel and there were many women in positions of leadership. "We in Germany still tend to have problems with that," Bross said.

Translation from German: Allison Brown