Constitutional Justice Suhartoyo delivering a keynote speech in a webinar organized by the Constitutional Court and the Law Faculty of the Islamic University of Indonesia (UII), Tuesday (30/6) at the the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) collaborated with the Constitutional Law Department of the Law Faculty of the Islamic University of Indonesia (UII) to organize a webinar entitled "Two Decades of Development and Dynamics of Judicial Power" on Tuesday (30/6/2020) through Zoom. Constitutional Justice Suhartoyo delivered a keynote speech alongside UII’s constitutional law lecturers Idul Rishan and Sri Hastuti Puspitasari as well as the Head of the Public Relations and Domestic Cooperation Department of the Constitutional Court Fajar Laksono.
Justice Suhartoyo began his presentation by stating that post-constitutional amendments, the state’s development is aimed to create state practices that are in line and balanced and provide guarantees for the realization of democratic values and the rule of law. In the 1945 Constitution, Indonesia has explicitly divided the authorities of the holders of judicial power because it is a key position in the administration, especially in deciding disputes between individuals, between individuals and the state, and between institutions and the state.
He explained that in Indonesia, there was a change of institutional dynamics of judicial power post-Reform. This is evident in the establishment of the Constitutional Court (MK) and the Judicial Commission (KY). Article 24 paragraph (2) of the 1945 Constitution states that judicial power is not only implemented by the Supreme Court, but by other institutions such as the Constitutional Court and the Judicial Commission. This marks the independence of judicial power.
In the last two decades, Justice Suhartoyo added, the affirmation of judicial power is contained in Articles 24 and 25 of the 1945 Constitution. Then after the amendment to the 1945 Constitution, there are Article 24 paragraphs (1) and (2). Thus, the judicial power’s independence is clearly confirmed in the norms. He observed the need for justices to act as law enforcers, who are free from litigants’ influence and pressure from the national and international communities.
"As the changes to the 1945 Constitution are also balanced with checks and balances, it is expected that the judicial power can achieve independence," he said.
Justice Suhartoyo believes in judicial independence, that both the Supreme Court and the Constitutional Court justices must be accountable in the courts, so corrupt actions can be minimized. The Constitutional Court has proven this through independence and impartiality in its rulings. Although the justices are representatives of three branches of power, they ended their ties with their supporting institutions. Therefore, the constitutional justices do not represent the institution that nominated them in reaching their rulings; instead, they do so based on constitutional justice. Judicial independence is also created through transparency in order to eliminate abuse of power, including in the Constitutional Court. For this reason, the Constitutional Court whole-heartedly carries out its duties by striving to provide services that are affordable, easily understood, and accepted by the public.
"Hopefully public trust will lead the Constitutional Court to become a modern judiciary that is swift, measurable, and IT-based so that the Court can meet the public’s need for law because it has trust in the Court," he said.
Constitutional Mandate
Head of the Public Relations and Domestic Cooperation Department of the Constitutional Court Fajar Laksono also spoke at the event about "Relations between the Constitutional Court and the Legislature." He stated that between the two institutions there can be confrontational and cooperative relations. Both models been studied in Estonia, Hungary, Poland, Ukraine, and Romania.
In Estonia, Hungary, and Poland, the relationship tends to be cooperative where the Constitutional Court and the legislature both play their roles in protecting the people’s basic rights and achieving the state’s objectives. "It is actually an ideal model but, on the other hand, there is the fact that in Ukraine and Romania, these two institutions actually contradict each other, even use the guise of legality and attack each other outside the constitutional path and weaken each other’s authorities," he said alongside webinar moderator Allan F. G. Wardhana, a law lecturer at UII.
Fajar observed how those to models could be adapted in Indonesia, especially how the judiciary’s relationship, especially the Constitutional Court, with the House (DPR) and the president is rooted in the enforcement of the Constitution. He saw two ways in which these institutions are connected. First, the House and the president are connected through constitutional legislation, meaning that their authorities are inherent in the authority to interpret the Constitution as outlined in the law. Second, the Constitutional Court passively interprets the Constitution in its rulings. So, in this case, the Constitution is equally enforced with the support of legislation and the judiciary.
However, Fajar added that legislation became complicated after the establishment of the Constitutional Court. An expert stated that the legislature, not the drafters, interpret the law. So, the one who has the final authority to interpret the law is the Constitutional Court.
Fajar observed that the Constitutional Court not only examines laws, but first, also declares them unconstitutional. This could affect legislation, which will affect laws made by the legislature, because their legal products would then have no binding legal force. Second, it is a constitutional mandate that the Constitutional Court doesn’t directly declare law null and void, but create a binding and direct order to the legislature.
"Then the Constitutional Court’s decisions contains the constitutional mandate in its considerations, which made the House deem the Court have interfered too far in matters of legislation," he said.
Fajar explained that in 2003-2015, there were six variants of the constitutional mandate in the Constitutional Court’s decisions. The Constitutional Court gave the legislature recommendations to make changes in lawmaking. "It is only a suggestion that the legislature follow the Constitutional Court’s mandate," he said.
The Constitutional Court also provides an alternative normalization in lawmaking. The Constitutional Court can prohibit the inclusion of certain norms in the future. The Court required the legislature to perfect the law within a certain period, but without any enforcing consequence. The Court can only give an ultimatum or sanction if the legislature doesn’t make amendment after that deadline.
The State’s Positive Intervention
UII lecturer Eid Rishan delivered a presentation entitled "State Intervention and Judicial Power." He observed that in 20 years, freedom of justice shouldn’t have been intervened. However, according to him, state intervention is sometimes also needed, especially during political transitions. He said that intervention should be watched whether it will harm the performance of the judiciary or not. "Legal politics over the judicial power is a positive and necessary form of state intervention," he explained.
In fact, Eid believes that the threat to judicial independence can also come from the judiciary itself, such as organizational performance with minimal oversight or judicial budget limitations that leads the court including the justices not being able to maintain independence.
UII lecturer Sri Hastuti Puspitasari in a presentation entitled "The Reform and the Role of the Parliament in the Recruitment of Judges" stated that the Reform directed the country towards a democratic political system through democratic consolidation. There is a close relationship between the Reform, consolidation, and the ultimate goal of democracy. One concrete step is the arrangement of representative institutions, political parties, and elections, including the House’s involvement in the selection of supreme and constitutional justices. This is part of consolidation in the judiciary. According to her, this is because the House represents the people. The House is a manifestation of the people’s sovereignty, whose existence is to perform checks and balances between state institutions and limit presidential power.
After the presentations by the speakers, 146 participants who attended the webinar encouraged to ask questions relevant to the themes of the discussion. (Sri Pujianti/NRA)
Translated by: Yuniar Widiastuti
Translation uploaded on 6/30/2020
Tuesday, June 30, 2020 | 18:17 WIB 281