Unconstitutionality of Public Schools with International Standards Education is an important tool for a nation to nurture their future generations.

In an effort to further develop Indonesian students, the government established public schools with international standards (Sekolah Bertaraf International) mandated by Article 50 (3) of Law No. 20 of 2003 on the National Education System (Education Law). Public schools with international standards aim to enrich the education of their students with certain qualities of excellence from developed nations, which therefore generate graduates that meet demands of the Indonesian and international industry, and able to compete with overseas graduates. But even with these aims to further develop future generations, the Constitutional Court declared public schools with international standards to be unconstitutional in Decision No. 9/PUU-X/2012 on 8 January 2013 (Decision) on 8 January 2013. As shocking as it might seem, the Decision will abolish all 357 public schools with international standards throughout Indonesia1 at the end of this school year2 without any means of repeal or reconsideration. The Decision The Decision repealed Article 50 (3) of the Education Law, which stipulates the Government to establish an education unit with international standards in all levels of education. Article 50 (3) of the Education Law is the legal basis of public schools with international standards. By repealing this Article, the Decision also repeals its implementing provisions in Government Regulation No. 17 of 2010 on Management and Organization of Education, and Ministry of National Education Regulation No. 78 of 2009 on Establishment of International Standard Schools in Elementary and Secondary Education (International Standard Regulation). The Constitutional Court based their Decision on practices and implementations in declaring public schools with international standards to be unconstitutional. In the Decision, the Constitutional Court stated that public schools with international standards in practice uses foreign languages (especially English) as the intermediate language, which according to the Constitutional Court threatens the pride in Indonesian languages and cultures in Indonesian Students.3

Daftar sekolah menengah atas berstatus RSBI, Wikipedia Bahasa Indonesia Ensiklopedia Bebas, (http://id.wikipedia.org/wiki/Daftar_sekolah_menengah_atas_berstatus_RSBI#cite_note-1, accessed 6 February 2013). 2 RSBI Tetap Berjalan Hingga Akhir Tahun Ajaran, (http://www.hukumonline.com/berita/baca/lt50f6bd9e17932/rsbi-tetap-berjalan-hingga-akhir-tahun-ajaran, accessed 15 February 2013). 3 It should be noted that the use of a foreign language as the intermediate language is lawful, according to Article 29 (2) of Law No. 24 of 2009. This Article states that foreign languages may be used as the intermediate language to improve the students ability in using a foreign language.

Additionally, the Constitutional Court stated that public schools with international standards are excessively expensive, which discriminates other students and schools. Ultra Vires Decision In my opinion, the Constitutional Court was ultra vires in rendering the Decision, as it has no authority to base decisions on practices and implementations of laws according to Article 10 (1) of Law No. 24 of 2003 on the Constitutional Court (Constitutional Court Law). Article 10 (1) of the Constitutional Court Law specifically states that the Constitutional Court has authority to review only Laws with the 1945 Constitution of the Republic of Indonesia (Constitution), which implies that the Constitutional Court should only review Article 50 (3) of the Education Law independently with the Constitution. Independently, Article 50 (3) of the Education Law does not stipulate public schools with international standards to be what is implied by the Constitutional Court. Problems and complications related to public schools with international standards stated in the Decision are only relevant to the implementing regulations of Article 50 (3) of the Education Law. For example, public schools with international standards are expensive because it is enabled by Article 13 (3) of the International Standard Regulation. The said Article stipulates that public schools with international standards may charge additional fees to cover shortage of funds. In accordance to the Constitutional Court Law, the Constitutional Court does not have authority whatsoever to review implementing regulations of laws, or to review implementations or practices of laws. Therefore, the Decision constitutes a fundamental breach towards the Constitutional Court Law. Inconsistency of Constitutional Court Decisions I believe that the Decision constitutes inconsistencies in Constitutional Court decisions, as previous cases that were based on actual practices and implementations of laws were rejected by the Constitutional Court. For example: Decision No. 7/PUU-VII/2009,4 the Constitutional Court stated that the case was not related to the constitutionality of a norm, and that the case was more related to the damages suffered by the applicant caused by wrongful implementation of laws.5 Another example is Decision No. 12/PUU-VII/2009,6 where the Constitutional Court decided that applicant did not have legal standing because the arguments brought by the applicant of the case was more related to implementations of laws and execution of a court decision.7

4 5

The case appealed Article 160 of the Indonesian Criminal Code. Paragraph 3.14.4, Decision 7/PUU-VII/2009. 6 The case appealed Articles in Law No. 10 of 1995 on Customs, as amended by Law No. 17 of 2006. 7 Paragraph 3.10, Decision No. 12/PUU-VII/2009.

By rendering a decision based on practices and implementations, the Constitutional Court has established a firm legal basis for the Constitutional Court to accept and decide cases based on actual practices and implementations of laws, based on the stare decisis principle.8 Meanwhile, as explained earlier, the Constitutional Court should not have the authority to accept and decide cases on actual practices and implementations of laws in accordance to the Constitutional Court Law. Therefore, the Decision constitutes legal uncertainties towards the actual authority of the Constitutional Court, and indicates inconsistencies in Constitutional Court decisions. Discriminate Assessment of Practices I underline that the Constitutional Court should not base its decisions on practices and implementations of laws. However, for the sake of argument, I shall envision that the Constitutional Court has authority to render decisions based on practices and implementations of laws. Even if the Constitutional Court had the authority to render decisions based on practices and implementations, I believe that the Constitutional Court was discriminate in assessing practices in the Decision. The Constitutional Court seems to only select practices and implementations in favor of the applicant in the Decision. This discrimination in assessing practices and implementation is proven by practices and implementations in Surabaya related to public schools with international standards. In Surabaya, public schools are all, including public schools with international standards.9 In Surabaya, students must meet a certain set of educational qualifications to get into SBI/ RSBI. Qualified students that are able to get into SBI/ RSBI are only required to buy the books required for every class. Students that are not able to buy the said books will be provided by the school. This example ironically fulfills the criteria for public schools with international standards set by the Constitutional Court in the Decision (except for the consideration that public schools with international standards should be available to intellectually challenged students).10 Furthermore, it should have already provided a clear solution and reference to properly implement public schools with international standards. The Constitutional Court conveniently chose to ignore this particular practice and implementation of public schools with international standards.

The precedent principle (stare decisis) is the doctrine of precedent, under which a court must follow earlier judicial decision when the same points arise again in litigation (Blacks Law Dictionary, Ninth Edition, Thomson Reuters, 2009, p. 1565). A precedent is a decided case that furnishes the basis for determining later cases involving similar facts or issues (Blacks Law Dictionary, Ninth Edition, Thomson Reuters, 2009, p. 1323). 9 Biaya Sekolah Reguler dan RSBI di Surabaya Gratis, Beda Penekanan Mutu (http://surabaya.detik.com/read/2013/01/09/162453/2137486/466/biaya-sekolah-reguler-dan-rsbi-disurabaya-gratis-beda-penekanan-mutu, accessed 4 February 2013). Menengok Gaya Hidup Pelajar Sekolah RSBI di Surabaya yang Gratis Itu (http://surabaya.detik.com/read/2013/01/10/083446/2137968/466/menengok-gaya-hidup-pelajar-sekolahrsbi-di-surabaya-yang-gratis-itu, accessed 4 February 2013). 10 This consideration is stated in Paragraph 3.20 of the Decision.

Premature Decision The abovementioned example by Surabayas regional government also proves that the implementation of public schools with international standards could have been improved but the time to develop such improvements was denied by the Constitutional Court. Hence, in my opinion, the decision to abolish public schools with international standards is premature. The implementing regulation for public schools with international standards (the International Standard Regulation) was issued on 16 October 2009, which is only approximately three years from today. It is premature to decide that a program is unconstitutional after only three, and it is foolish to expect a perfect program after only three years of implementation. Conclusion In conclusion, I believe that the Decision was ultra vires a fundamental breach to the Constitutional Court Law. It constitutes a clear inconsistency with previous decisions rendered by the Constitutional Court. This will create confusion on the actual authority of the Constitutional Court. I also firmly believe that improvements could have been made by the government, and that the Constitutional Court over-exaggerated and hurried the Decision. Thus, the Constitutional Court has denied the time needed to improve public schools with international standards even with an ideal example set by Surabayas regional government. The abolishment of public schools with international standards was not necessary. It was just the Constitutional Court acting the hero.