Abstract
This article examines recent parliamentary interventions in police reform in Indonesia to advance a comparative claim about constitutional backsliding in Asia. It argues that formally democratic legislative acts may nonetheless generate constitutional-level effects that displace constitutional supremacy with de facto parliamentary supremacy, particularly in the governance of coercive state institutions. Drawing on Hans Kelsen’s theory of normative hierarchy and Bruce Ackerman’s distinction between ordinary and constitutional politics, the article demonstrates how such outcomes can emerge without constitutional amendment or overt authoritarian rupture. Framed comparatively, Indonesia is analysed as an emerging Asian case of abusive constitutionalism operating through legislative consensus and technocratic reform discourse. The article further advances a doctrinal argument that these parliamentary decisions are conditionally unconstitutional and therefore warrant judicial scrutiny by the Constitutional Court. By situating Indonesia alongside comparable experiences in Asia, the article contributes regionally grounded insights to comparative constitutional law.
1. Introduction
The resilience of constitutional democracy is increasingly tested not by abrupt regime change but by gradual institutional erosion conducted through formally lawful means. In recent comparative constitutional scholarship, this phenomenon has been described as constitutional backsliding or abusive constitutionalism, processes by which democratic institutions are hollowed out from within while maintaining the appearance of legality. While much of the literature has focused on executive aggrandisement, less attention has been paid to the role of legislatures in generating constitutional-level effects through ordinary statutes.
Indonesia presents a salient case. Following its post-authoritarian constitutional transition, Indonesia entrenched civilian supremacy, separation between the military and police, and robust judicial review. Yet recent parliamentary decisions concerning police reform have reopened fundamental questions about constitutional hierarchy, the limits of legislative authority, and the role of the Constitutional Court (Mahkamah Konstitusi) in safeguarding the security sector. These developments raise a central question: when do ordinary legislative acts cross the threshold into constitutional politics?
This article argues that certain parliamentary interventions in Indonesia’s police governance amount to a de facto assertion of parliamentary supremacy over constitutional supremacy. Although enacted through procedurally democratic means, such interventions recalibrate constitutional balances governing coercive power and therefore warrant heightened constitutional scrutiny. The Indonesian case is thus positioned as an emerging Asian example of legislative-driven constitutional backsliding.
2. Constitutional Supremacy, Parliamentary Supremacy, and Normative Hierarchy
At the core of constitutional democracy lies the principle of constitutional supremacy: the idea that all state action derives its validity from, and remains constrained by, the constitution. Hans Kelsen’s theory of normative hierarchy conceptualises the constitution as the apex norm (Grundnorm) from which the validity of ordinary legislation flows. Under this framework, parliamentary authority is inherently derivative and cannot autonomously redefine constitutional meaning.
By contrast, traditions of parliamentary supremacy, most prominently associated with Westminster systems, locate ultimate authority in the legislature. Even within such systems, however, parliamentary supremacy presupposes political, historical, and institutional conditions that differ markedly from post-authoritarian constitutional democracies. In Indonesia, constitutional supremacy was deliberately entrenched to prevent the re-politicisation of coercive institutions.
Bruce Ackerman’s distinction between ordinary politics and constitutional politics further clarifies this boundary. Ordinary legislation may pursue policy reform, but constitutional change requires heightened procedures, public mobilisation, or judicial mediation. When legislatures bypass these thresholds while producing constitutional-level effects, they risk engaging in abusive constitutionalism under the guise of democratic normalcy.
3. Abusive Constitutionalism and Legislative-Driven Backsliding
The concept of abusive constitutionalism, developed by David Landau and others, describes the use of lawful mechanisms to undermine constitutional constraints. While often associated with executives, abusive constitutionalism may also operate through legislatures, particularly where parliamentary majorities are strong and opposition weak.
In the Indonesian context, parliamentary interventions in police reform exemplify this dynamic. By invoking efficiency, professionalism, or national security, legislative actors may incrementally expand coercive authority or blur constitutionally mandated distinctions between security institutions. Such moves do not overtly violate the constitution; rather, they reinterpret it through statutory accumulation.
This form of backsliding is especially difficult to contest politically because it operates within democratic procedures. Yet its cumulative effect may be profound, gradually displacing constitutional supremacy with parliamentary supremacy in practice.
4. Indonesia as an Emerging Asian Case of Constitutional Backsliding
Comparatively, Indonesia’s experience resonates with broader Asian patterns. In several Asian democracies, legislatures have played an active role in reshaping constitutional balances under conditions of electoral dominance and technocratic governance. Unlike classic cases of authoritarian regression, these developments often proceed without constitutional amendment or emergency powers.
Indonesia’s post-1998 constitutional settlement explicitly subjected the security sector to civilian control, functional differentiation, and rights-based accountability. Parliamentary-led recalibration of police authority therefore carries constitutional significance beyond policy choice. When such recalibration weakens constitutional safeguards, it signals a form of legislative-driven backsliding that merits comparative attention.
Positioned regionally, Indonesia functions as an early-warning case: a democracy where constitutional erosion occurs not through rupture but through normalised legislative practice.
5. Judicial Review and Security Sector Reform
The implications of this analysis underscore the central role of the Constitutional Court as guardian of constitutional supremacy. Judicial review in this context is not an intrusion into political discretion but a mechanism for preserving normative hierarchy. Indonesian constitutional jurisprudence has consistently affirmed that security institutions remain subject to constitutional limitations, including civilian supremacy, institutional differentiation, and fundamental rights protection derived from Articles 30 and 28 of the 1945 Constitution.
By scrutinising parliamentary decisions that generate constitutional-level effects, the Court performs a stabilising function within Indonesia’s constitutional architecture. The object of review is not legislative wisdom, but constitutional permissibility. Where parliamentary action effectively reconfigures constitutional balances governing coercive power, it enters the domain of constitutional politics and must be assessed against higher-order norms.
The doctrine of conditional unconstitutionality offers a calibrated judicial response. Rather than invalidating legislation wholesale, the Court may uphold statutes subject to constitutionally mandated conditions. This approach preserves democratic space while preventing the normalisation of constitutional erosion through statutory means.
Comparatively, similar judicial strategies have emerged in Asian jurisdictions such as South Korea, Taiwan, and India, where courts intervene selectively to constrain legislative dominance without over-judicialising security governance. Indonesia’s Constitutional Court thus operates within a regional pattern of cautious but consequential constitutional guardianship.
6. Conclusion
This article has argued that Indonesia’s recent experience with parliamentary-led police reform illustrates a subtle but consequential pathway of constitutional backsliding in Asia. Rather than arising from executive aggrandisement or formal constitutional amendment, the erosion identified here operates through ordinary legislative processes that acquire constitutional-level effects.
By integrating Kelsenian normative hierarchy with Ackerman’s theory of constitutional politics, the article shows how abusive constitutionalism may manifest through legislative consensus and technocratic reform discourse. Doctrinally, it advances conditional unconstitutionality as a judicial tool capable of arresting constitutional erosion without provoking institutional backlash.
In comparative perspective, Indonesia emerges not merely as a national case study but as an early-warning reference point for Asian constitutional orders confronting the quiet displacement of constitutional supremacy by parliamentary authority.
Notes;
The author, Dr. Surya Wiranto, SH MH, is a retired Rear Admiral of the Indonesian Navy, Advisor to Indo-Pacific Strategic Intelligence (ISI), Senior Advisory Group member of IKAHAN Indonesia-Australia, Lecturer at the Postgraduate Program on Maritime Security at the Indonesian Defense University, Head of the Kejuangan Department at PEPABRI, Member of FOKO, Secretary-General of the IKAL Strategic Center and Executive Director of the Indonesia Institute for Maritime Studies (IIMS). He is also active as a Lawyer, Receiver, and Mediator at the Legal Jangkar Indonesia law firm ⚓️.
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