The Delegated Constitution: Organic Statutes, Desuetude, and Constitutional Change in Indonesia

Abstract

The 1945 Constitution of Indonesia has not been amended since 2002, yet the rules governing presidential eligibility, the tenure of constitutional judges, the size of the executive, and the electoral calendar have all changed in the interval. Existing accounts attribute that movement to judicial interpretation. A clause-by-clause reading of the amended text identifies thirty-eight paragraphs delegating a subject of constitutional consequence to ordinary legislation, and seven subordinating a constitutional entitlement to whatever the legislature enacts. Because these statutes carry constitutional content while remaining revisable by simple majority, the operative constitution has migrated into the statute book without any norm arising outside the text. Four things a delegate statute may do to the provision authorising it are distinguished: execute it, reconfigure it, displace it, or, by never being enacted, hold it in abeyance. The fourth is the least noticed: a constitution that conditions a guarantee on a statute gives the legislature a veto over its own operation, and the recognition of customary law communities has waited on a statute never made, and the regime of emergency powers still rests on a 1959 instrument that is not a statute at all. France, Spain, and Chile each give such statutes a legislative form of their own; Indonesia, which delegates as heavily, recognises none. A standard of review calibrated to the four modalities is proposed, and constitutional omission is shown to be justiciable through a remedial technique the Constitutional Court already employs.