2016 Global Review of Constitutional Law

agreement but later decide that they want to
have some financial arrangement in place
after they accumulate some wealth.
The Court rejected the claim against the
Basic Agrarian Law and the joint property
clause in the Marriage Law. Nevertheless,
the Court chose to review the prenuptial
clause. In the Court’s opinion, the limitation
for husband and wife to enter into
a postnuptial agreement is a violation of
the freedom of contract. The Court then
declared that Article 29 (1) is “conditionally
unconstitutional” unless it was interpreted
that a marital agreement can be made
before, during, and after the marriage took
place. In other words, the Court declared
that the Marriage Law should be interpreted
in light of the recognition of postnuptial
agreements.
CONCLUSION
Having reviewed some major cases in the
last term, one can see a pattern of how the
executive and legislature ignored some
of the decisions from the first-generation
Court. Then, they passed new laws that
reinstated the policies that were being
struck down by the Court. In the last term,
the Court had to review some cases that
dealt with the reinstatement of the government’s
policies. The Court, however, took
a compromise approach by acknowledging
that the government has tried to follow the
Court’s directive, but at the same time it
moved to declare some challenged provisions
“conditionally unconstitutional.”
Overall, the Court under the chairmanship
of Arief Hidayat has become a less interventionist
court. In 2017, Arief Hidayat has
to face re-election as the Chief Justice, and
the public will wait on whether all of the
constitutional court justices still trust him
as the Chief Justice. As we write this report,
President Jokowi has appointed academic-cum-activist
Saldi Isra as a new Associate
Justice of the Constitutional Court. With his
long track record as an anti-corruption activist
and stellar academic credentials, Saldi
Isra might be a bold and autonomous judge.
Whether he will be remains to be seen.
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