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Protection itself is not enough to keep the independency of judicial authority. Protection means nothing without the support from other institutions

Ideas for amending the 1945 Constitution brought up by the Regional Council has come to nothing. The opportunity for the amendment to take place within this year is nearly impossible, considering the high workload for the General Election 2009. Even though so, the discourse seems to roll on following the amendment of the 1945 Constitution. One of the hot topics would be the constitutional protection for judicial authority

Susi Dwi Harijanti said that the amendment of the 1945 Constitution had to assure that the constitutional protection towards the judicial authority is carried out optimally. The recommendation issued by this expert in constitutional law from Padjadjaran University was based on the fact that the existing 1945 Constitution was considered to provide minimum protection. It was shown by the fact that there is only one Article in the Constitution regarding the independency of judicial authority.

Article 24 paragraph (1) stated: Judicial authority is an independent authority to access the judicial in order to enforce law and justice. Minimalist concept is even followed by a number of legislative regulations related with the judicial authority.

“The stipulation in Article 24 paragraph (1) is not enough to guarantee the judicial authority can work really independently,” said the Head of Constitutional Law Division of the Law Faculty of Padjadjaran University, Bandung.

Susi is comparing the 1945 Constitution with the Constitution of the Phillipines. In the country lead by a female President Gloria Macapagal-Arroyo, Constitution provides maximum protection or even tends to be exclusive towards the independency of judicial authority. Susi, for example, quoted the stipulation emphasizing that the judicial budget had to be guaranteed by the State. The Budget, in fact, should not be decreased every year even if the State Funding is experiencing deficit.

Section 3. The Judiciary shall enjoy fiscal autonomy. Appropriations for the Judiciary may not be reduced by the legislature below the amount appropriated for the previous year and, after approval, shall be automatically and regularly released. (Sumber: http://www.chanrobles.com/article8.html)

Because of that, Susi expected that in the future an amendment could produce articles within the constitution that provide details to secure the independency of judicial authority. Protection could be manifested in form of security of term of office, retirement age, judicial budget, disciplinary procedure, mutation-promotion or even judges’ salaries.

Protection, according to Susi, is an important thing because –quoting the opinion of Alexander Hamilton in the Federalist Papers No. 78—the judicial authority is a the weakest branch of government. Besides that, as one of the emerging democratic countries (countries in transitional period), judicial institutions in Indonesia have important roles in building the rule of law principle, Human Rights protection and economic reformation.

Susi added that protection was not enough to secure an independent judicial authority. There had to be improvement in other sectors, especially the ones related with the emerging of new institutions related to the judicial authority like the Constitutional Court and the Judicial Commission. “Numerous protection can be weak if no other efforts for improvement occurs as the result of the ongoing practices,” he said.

Depending on Performance

Speaking in the same tone as Susi, a member of National Law Commission, Frans Hendra Winarta, said that the judicial authority indeed needed to be protected. Nevertheless, Frans emphasized that the protection needed was the protection against all forms of intervention. The senior advocate considered that intervention was often used as the gate for courts mob. Judicial officers, especially judges had to be protected against the lobbies from case-related parties.

“Courts officers needs to be provided security guarantee as well so that they can do their tasks freely,” he said. Security, according to Frans, is important because the fact is that there have been incidents in Indonesia. This country once shocked by the murder case of Supreme Judge Syafiuddin Kartasasmita or the incident of the murder of Judge of Religious Affair Ahmad Taufiq after being stabbed by a military member.

Meanwhile, Vice Chief of National Ombudsman Commission, Sunaryati Hartono, said that protection had to be in linear equivalent with performance. The recent condition of the courts, according to Sunaryati, is relatively improper to be given an overrated protection. She demanded the courts to improve themselves before the Constitution gave maximum protection.

“Why should they be provided by protection if their performance is still bad,” she said. Sunaryati for example, highlighted the quality of the verdicts that is still worrying. This condition happened related to the strictness of the monitoring unit of the Supreme Court in responding to the bad court’s officers. Despite from being fired, troubled judges were often made inactive. Ironically, it is the inactive judges who made the verdict of the Supreme Judge. (Rzk)

Source www.hukumonline.com (27/08/08)

Photo courtesy of  www.google.co.id

Translated by Yogi Djatnika

 

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