Session III: Mechanism of Checks and Balances in Various Countries
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Chairman of the High Court of Malaya of the Federal Court of Malaysia Tan Sri Arifin bin Zakaria (left), in the discussion session of the Mechanism of Checks and Balances between the Institutions of the State in Panel III in a series of activities of The International Symposium themed Constitutional Democratic State, Tuesday (12 / 7) at Shangri-La Hotel Jakarta.


The third session of the International Symposium of the Constitutional Court on Tuesday (12 / 7) carried some themes. They were the Mechanism of Checks and Balances among State Institutions. The themes discussed are part of the three themes, namely The Role of the Constitutional Court and Equivalent Institution in Strengthening the Principles of Democracy, The Democratization in Making Law, and the Mechanism of Checks and Balances among the Institutions of the State.

In a chance on an existing panel of three speakers, namely Justice Supreme Court (MA) Mexico Margarita Beatriz Luna, Constitutional Court Judge Gulzorova Muhabbat Mamadkarimovna from Tajikistan, and Judge of the Constitutional Court of Indonesia Akil Mochtar.

Margarita Beatriz Luna had given the opportunity by Maruarar Siahaan as moderator to convey the material in advance. She said democracy is a fundamental and essential value of the constitutional state whose sovereignty lies in the will of the people. In the context of Mexico, Beatriz said that the Supreme Court of Mexico, today, a concrete manifestation in resolving the various conflicts that exist. "All that is subject to the jurisdiction," he explained.

In addition to talking about the fundamental value, Beatriz also spoke about constitutionality. According to him, the judicial control system in ensuring the constitutionality, a complement or close the gap that has been judged to be. "With the existence of judicial review, civil liberties or fundamental rights can be maintained," he explained.

Meanwhile, Gulzorova Muhabbat Mamadkarimovna of Tajikistan expressed the importance to protect the constitutional rights and the rights and freedoms of individuals by applying the constitution in the government. "Therefore, Tajikistan led to an independent agency, the National Constitutional Review, the Constitutional Court," he explained.

Gulzorova further explained that the country's constitution to guarantee and protect human rights and freedoms through constitutional jurisdiction of independence, collegiality, openness, competition and equality of the parties. "Based on these principles, the Constitutional Court must make a decision that has value in protecting the rights and freedoms of man and citizen," he explained.

In the same occasion, Judge of the Constitutional Court of Indonesia, Akil Mochtar, describing the principle of checks and balances adopted by Indonesia. According to Akil, checks and balances come from the needs to ensure that each authority is not beyond his control. "As an example of the power held by the parliament to form the law, but that any Bill should be decided jointly between the Parliament and the President," he explained.

Strengthening the Principle of Checks and Balances
Furthermore, in Panel 2 moderated by Djoko Priyono with three speakers, namely the House Colombian Vice Solgado Nidia Marcela Osorio, President of the Parliament of Timor Leste's Fernando de Araujo La Equally, as well as Constitutional Court Judge RI Hamdan Zoelva.

At that time, Nidia Marcela, presented a paper titled "Constitutional Democratic State". In its delivery, he reviewed the history of the constitution in Colombia. According to him, the last Colombian constitution provides many developments in the life of democracy in his country. "Constitution is a source of legality of the Court as the highest court to protect the constitution," he explained. In fact, in this constitution, also regulates the recognition of indigenous peoples in Colombia.

In addition, the constitution also set about freedom and power sharing in a balanced manner. He reveals, there are nine justices on the Constitutional Court of Colombia. "Three of the Senate, three from the Supreme Court, and three of the parliament," he said. He emphasized that judges should be able sage, neutral and sought not do the slightest mistake. "Must be able to maintain the principles of democracy," he said.

While other speakers, Fernando La Sama, with the theme "Democratic Balance and Separation of Powers." He said, in his country there is no Constitutional Court. However, the Supreme Court there carried some authority in general. "To monitor whether the rules have been in accordance with the constitution (or not)," he said. In addition, Supreme Court also carried out some election issues.

Hamdan Zoelva gave the paper entitled "Checks and Balances Mechanism among State Institutions, Experience and Practice in Indonesia". In his presentation, Hamdan describes the development of democracy in Indonesia. According to him, it had ever known in Indonesia as Democracy of Pancasila. However, Hamdan said, at that time only in the form of formal democracy alone, not to the substance.

As for now, post-reform, many fundamental changes that have been made. Big step it is to do an amendment to the 1945 Constitution. According to him, the changes mainly occurred in the institutional structure of the state. This has implications for the position of state sovereignty. Before the change, the sovereignty of the people executed by the People's Consultative Assembly (MPR) as the highest state institution, whereas after the change, all state institutions to be aligned. In addition, the emergence of new state institutions is the House of Regional Representatives (DPD). Unfortunately, the DPD was "complementary", he said. The hope, with such a constitutional structure, there is checks and balances among state institutions. There were no checks and balances between central and local governments.


State Requirement


Another interesting thing also appear in Panel 3 is filled by four panelists, namely the President of the Court of Appeal Federal Court of Malaysia Malaya Tan Sri Arifin bin Zakaria, Turkish Constitutional Court Engin Yildirim, Vice Chairman of the House of Representatives Priyo Budi Santoso, and Chairman of the Senate Legal Committee of Azerbaijan Ali Huseynii . In his explanation, the four panelists said that every country adheres to the principles of democracy and checks and balances mechanism tailored to the needs of each country.

Malaysia Tan Sri Arifin convey system of separation of powers since the days of British rule until now. In his presentation, Tans Sri Arifin said that the system has a hierarchy of power in Malaysia, the Yang Pertuan Agong, the Institute's Executive (Cabinet), Legislative (Parliament), and the Institute of Judiciary (Federal Court). "The doctrine of separation of powers requires that the principle of checks and balances in a systematic and effective. It is useful to ensure that any state agencies and branches of power to its authority in accordance with the law, "he said.

Responding to questions about reform in Malaysia, Tan Sri Arifin explained that the issue of 'reform' is a sensitive issue in Malaysia. "The issue is rather sensitive reform as it pertains to the dissidents (traitors state, ed.). The reform means change, but in Malaysia, must remain guided by the Constitution. However, power remains in the community through the general election, "he explained.

In Turkey, the Turkish Constitutional Court Engin Yildirim said that Turkey's Constitutional Court is an important and controversial agency in both political and legal aspects in Turkey. Every decision of the Turkish Constitutional Court has always reaped a variety of reactions and responses. Some sees the Constitutional Court as the guardian of Turkey's important constitutional values, but not rare criticism also presented. "Criticism is related to the authority of the Constitutional Court dissolved the party in politics. Turkish Constitutional Court has dismissed as many as 30 political parties formed during since 1962, "he said.

Meanwhile, the power system in Azerbaijan is divided into several branches of power to the system of separation of powers. It is like that delivered by the Chairman of the Law Commission of Azerbaijan Ali Huseynii Senate. Huseynii revealed branches of power, namely the legislative, represented by Milli Najlis, executive and a judicial branch of government represented by the President was represented by the judiciary in Azerbaijan.

"The Constitution divides power branch which must interact with each other. This is an organizing principle of modern government is based on the nationality and the structure of democratic society, " Huseynii said. (Dodi Haryadi / Lulu Anjarsari / Shohibul Umam / Miftakhul Huda/Yazid.tr)


Thursday, July 14, 2011 | 13:57 WIB 343