Session I: Sharing Experiences in Strengthening Democracy
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President of the Constitutional Court of Colombia Juan Carlos Henoa Perez (center) in the Plenary of The International Symposium on the theme Constitutional Democratic State, Tuesday (12 / 7) at Shangri-La Hotel, Jakarta.


 Entering the second day of the International Symposium on the theme Constitutional Democratic State, Tuesday (12 / 7), participants were divided into three separate panels with three sub themes. In Panel I it discusses the theme The Role of the Constitutional Court and Similar Institutions in Strengthening Democratic Principles. The participants review various issues of law, democracy and constitution, both in terms of theory, the rule of law, and practice in their respective countries.

In that session there were five speakers, namely the German Federal Constitutional Court Judge Rudof Mellinghoff, Constitutional Court Mongolia Judge Dugerjav Munkhgerel, the President of the Constitutional Court of Colombia Juan Carlos Henoa Perez, Chairman of the Constitutional Council of the Republic of Kazakhstan Rogov Igor Ivanovich, and Judge of the Constitutional Court of the Republic of Indonesia Maria Farida Indrati.  

Rudof Mellinghoff says as a general rule, democracy requires self-determination of citizens who have the same rights. According to him, freedom of opinion by the public is an important prerequisite of the political process. In addition, it must be ensured that in a parliamentary democracy, the parliament as a representative body of the people should be able to effectively carry out their functions in interaction with other constitutional bodies.

Meanwhile, Constitutional Court Judge Dugerjav Munkhgerel from Mongolia said although the Court still fairly new, but its role is large enough to ensure that any laws and decisions issued by another state agency does not violate the constitution. "The Court also has authority to decide relating to the alleged violations committed by the President, the Prime Minister, Chairman of the Supreme Court, Attorney General, and so forth, does violate the constitution or not," he explained. In addition, the Constitutional Court of Mongolia has the obligation to guarantee every citizen of Mongolia and foreign nationals legally residing in Mongolia can make a complaint to the Constitutional Court. "They have the right to file a petition or complaint to the Constitutional Court of Mongolia," Dugerjav said.

Other experiences expressed by the President of the Constitutional Court of Colombia, Juan Carlos Henoa Perez. At the time of the material presented, he asserted the implementation of democracy, participation, and pluralism should be reflected in respect for human dignity. In Colombia, voting is instrumental to building accountable government. "That is the democratic nature of our charter and it is one of the principles underlying our Constitution," he said.

Besides talking about the principles underlying the constitution, Juan Carlos Henoa Perez also touched on the major role of MK in the social jurisdiction. He explained that the legal controls that exist in Colombia cannot be separated from the political dimension that allows for continuous public watched. "People immediately corrected their decision, or take action to ensure its efficiency," he explained.

Meanwhile, Rogof Igor Ivanovich, Chairman of the Constitutional Council of the Republic of Kazakhstan indulged that the basic of law making is a democratic country which uphold the highest human values, including the right to life, liberty and the rights, including guarantees of property rights.

Meanwhile, Constitutional Justice Maria Farida Indrati from the occasion stressed MKRI’s role in protecting citizens' constitutional rights, including the right to vote and be elected. According to him, the Constitutional Court to guarantee the exercise of these rights is not hampered or hindered by the various interests of certain parties, including blocking administratively that make citizens to use their voting rights.

"Up to now, the presence of Court in the state system is considered in many to give much contribution for the growth of democratic principles and the rule of law in Indonesia. Since the establishment of the Constitutional Court, the legislator cannot be based solely on majority agreement on the momentary interests but must see whether these interests conflict with the constitution or not, "Maria explained.

Ultra Petita
Panel II to act as the panel is Judge of the Constitutional Court Anwar Usman, the Korean Constitutional Court Justices Min Hyeong-Ki, Toma Birmontiene from Lithuanian Constitutional Court, Constitutional Court Justice of Chile Christian Suarez Crothers, and the Spanish Constitutional Court Judge Francisco Perez de Los Cobos. The panel was moderated by Jawahir Thontowi.

Usman Anwar delivered a paper entitled 'The Role of the Constitutional Court in Strengthening the Principles of Democracy in Indonesia'. On that occasion, he explained the history and background of thoughts about the birth MKRI. According to him, the existence MKRI, one of them, intended to strengthen the rule of law and democratic principles.

In addition, he also informed the development of case handling data last MKRI. At least, there are 840 petition has been filed. Including, 372 petition for judicial legislation (Act), 5 cases authority of dispute of state institutions, 116 disputes the results of national elections, and 337 requests related disputes regional head election results. "There were 781 applications which had been cut until early July 2011," he said.

In his speech, Anwar also touched on some of the Constitutional Court's decision. He asserted that the Court always seeks to protect and fight for the rights of citizens guaranteed by the Constitution (1945). Among them, related to opening the doors to individual candidates for the head area and allow the use of ID cards and passports in the election when addressing the issue of voters list in the last election.

Meanwhile, Christian Suarez Crothers elaborated on the constitutional amendment process in Chile. According to him, the amendment is influencing the development of democracy in his country. In the constitution, said members of the Constitutional Court of Chile of 10 people. "Three of the President, three of the Supreme Court, and four from the Senate," he said.

One of the authorities of the Constitutional Court of Chile was declared not force a law to specific cases. He said two of the provisions that have been canceled by the Constitutional Court of Chile is a rule which states must provide a defense lawyer for free as well as health-related rights of the people. In carrying out its duties, the Constitutional Court of Chile adopted several principles of international law; one of them is erga omnes. In his paper Corthes gives the theme 'Constitutional Justice, Fundamental Rights and Democracy in Chile'.

As for other speakers, Min Hyeong-Ki bring paper 'The Role of the Constitutional Court in Strengthening the Principles of Democracy', Toma Birmontienė bring 'The Doctrine of the Constitutional Court of Lithuania as An Instrument in Shaping Democratic Institutions', and Francisco Perez de Los Cobos 'Constitutional Court’s Role in Strengthening Democracy in Spain. Before the panel is closed, the participants also had time to conduct a brief question and answer.

One participant asked whether the judges in their respective countries can perform ultra petita. Hyeong-Ki Min judge replied, in Korea there has never been ultra petita decision. "If it is required by the court," he said. It is similarly in Spain. While in Lithuania, according to Toma Birmontiene, ultra petita do. "(We) ever (do) it," he said.

Socio-Cultural Issues
Interesting things that appear on the panel delivered III as moderator Paulus Hadi Suprapto. The birth of Court in various countries is generally encouraged as a result of social problems and the emergence of cultural discourse on the protection of Human Rights. Meanwhile, the right to democracy can be expressed as a major factor the emergence of a constitutional democratic state.

Five judges from five countries attended the constitution to give an explanation the role of MK in their respective countries in this panel. The speakers include the Constitutional Court Uzak Barazov Uzbekistan, the Constitutional Court the Kingdom of Thailand Chalermpon Ake-uru, Johannes Shcnizer Austrian Constitutional Court, Constitutional Court of Ukraine Mykhallo Zaporozhets, as well as Constitutional Court Judge Ahmad Fadlil Sumadi from Indonesia.

"In the constitutional system in Uzbekistan, the Constitutional Court of Uzbekistan has an important role to ensure the principle of Check and Balances going well. Constitutional Court of Uzbekistan also has the authority to maintain and protect the rights of citizens of Uzbekistan. The main principle of the Constitutional Court of Uzbekistan to work with based on the principle of independent, collegial, transparency, and equal rights in law, " Judge Uzak Barazov explained Uzbekistan Constitution.

Meanwhile, Constitutional Justice Johannes Austria Austria Schnizer explains the decision of the Constitutional Court is not always followed by implementation in the field, for example regarding the Austrian Constitutional Court Decision on road signs. According to Schnizer, in some areas like in Campton, it is inhabited by minority communities who use the Slovenian language as an everyday language.

"Governor Campton ago does not make the decision of the Court which ordered that the road signs in Campton must be made in two languages constitution set this arena. And now the street signs were implemented by the new Governor of Campton and apparently earned a lot of votes. This indicates that the application of the Constitution understood by the Austrian People, " Schnizer explains.

Discussion session I was part of three sub themes of this symposium. For Session II is entitled Democratization of Lawmaking Process and session III, The Mechanism of Checks and Balances among State Institutions. (Dodi Haryadi / Lulu Anjarsari / Shohibul Umam / mh / Yazid.tr)


Thursday, July 14, 2011 | 12:55 WIB 219