Chief Justice of the Constitutional Court Moh. Mahfud MD as a speaker in a Coordination Meeting of Inter-institution Relation of Indonesian Democratic Party of Struggle, Monday (28/3) at the Partyâs Headquarter.
Jakarta, MKOnline-The Constitutional Court (The Court) followed a view of progressive law. That was told by the Chief Justice of The Court Moh. Mahfud MD when acting as speaker in a Coordination Meeting of Inter-institution Relations of the Indonesian Democratic Party of Struggle, Monday (28/3) at the Party’s Headquarter.
“Progressive laws are laws that are based on to uphold justice not laws to uphold laws. Laws and justice is often considered similar but we, at The Court, differentiate them. Laws are within the legislation, while justice relates to things outside the legislation. We hold a believe that as long as an act provides justice, then we follow it; but when an act is a deadlock and do not provide a solution, we make new laws; that is supported by our legal experts. A justice’s duty is to make laws, if the official law is unavailable. That is what we call progressive laws, and we put that into practice in our decisions,” announced Mahfud.
Mahfud also explained that with the progress that The Court made in making decisions were questions by many sides. He admitted that The Court’s new decisions were a breakthrough when the legal problem faced a deadlock. “For example, according to the Act, The Court could only state two things, to grant or to reject a petition. In practice, not only do The Court grant or reject a petition, but move somewhere in the middle. The Court were designed not to make a regulating decision, but The Court have to make one because if we are merely granting the petition, it will be a deadlock; similarly if we reject. Like the decision for East Java (election case), at first the decision raised many protests but soon it became a reference of similar decisions of The Court. We could find a solution by holding a re-election,” he pointed out.
According to Mahfud, The Court was established to balance the democratic activities and the law. Before the reform, said Mahfud, democracy was filled with misconducts, the decision on behalf of the majority votes had been manipulated for the sake of politics. Then the democracy became a fake one. At that time, continued Mahfud, many laws which were actually wrong in their substance, but because it had been decided by the “compromised” legislatives-a center of power-then the Act had to be considered right and should not be questioned.
In the past, the election had been arranged; no one should question the result. If it had been legalized by the President through the minister of domestic affairs, it had to be accepted. Violations were not questioned. We also had a bitter experience in presidential impeachments. Bung Karno, Pak Harto, Gus Dur all were impeached merely because of politics, no legal consideration at all; Bung Karno was never given a consideration at all, Pak Harto never, Gus Dur was the same. Therefore, we formed a new instrument, namely The Court, whose duty was to adjudicate the law, the election result, to consider the legal reasoning to impeach a president during the term of office; then, additionally, to dissolve political parties and settle a dispute between State Institutions Authorities. This is used as the basis of our work at The Court,” he explained.
On last March 18, explained Mahfud, The Court had decided on 778 case files with 1,116 cases. Mahfud explained that about 760 cases were electional disputes and the rest were judicial reviews. Interestingly, Mahfud pointed out, of the 760 election cases, The Court changed the electability of 12 seats in the Central Parliament membership. This, according to Mahfud, could not be imagined to happen before the reform era. “In the New Order era, no elected candidates could be overruled by court’s decision. The Court has also annulled 71 acts insofar.” He explained (Lulu Anjarsari/mh/YDJ)
Monday, March 28, 2011 | 21:38 WIB 261