Constitutional Justice Saldi Isra and senior researcher Pan Mohamad Faiz speaking at a webinar by the Max Planck Foundation and the Supreme Court of the Maldives, Tuesday (10/11/2020) from the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—Constitutional Justice Saldi Isra spoke at a webinar by the Max Planck Foundation and the Supreme Court of the Maldives on Tuesday, November 10, 2020. Justice Saldi Isra delivered two presentations: “Respecting and Protecting Independence within the Judiciary” and “Judicial Independence and Impartiality as Manifestations of the Separation of Powers: The Experience of the Indonesian Constitutional Court.”
Justice Saldi started his presentation by saying that the nine constitutional justices in Indonesia are selected by the executive, legislative, and judicial branches—three each. “Based on my experience for 43 months as a constitutional justice, the constitutional justices are independent in carrying out their duties and authorities,” he said. He believes this can easily be achieved when the justices have knowledge, insight, and integrity. He added that a justice who maintains their integrity will not influence and be influenced by other justices.
This has been stressed in the preface to the Code of Ethics and Conduct of Constitutional Justices, which emphasized that the image of the judiciary and the public's trust in an independent judiciary, which the last bastion in efforts to uphold law and justice, are largely determined by the personal integrity, competence, and conduct of constitutional justices in carrying out the mandate to examine, judge, and decide cases.
To achieve a ruling, the constitutional justices convene at a plenary deliberation meeting, which is attended by all the justices, or at least seven justices under special circumstances. “At the plenary deliberation meeting to discuss the case, all justices have prepared their legal opinions. After all justices conveyed their legal opinions, they debate on the case. The debate and discussion of legal opinions can be said to be the forum where the justices influence each other to arrive at a decision. However, it occurs within academic and intellectual corridor and discourse,” he said before 32 participants.
Justice revealed that he was inaugurated on April 11, 2017 as the youngest constitutional justice. Currently, even after two new justices were inaugurated since then, he is still the youngest constitutional justice.
All Constitutional Justices Equal
Justice Saldi explained that the selection of eligible candidates of constitutional justices is done by institutions outside of the Constitutional Court, so there are no such hierarchy as senior and junior justices. “Even only two hours after being sworn in, I participated in a plenary hearing of regional head election results dispute. Furthermore, at this first hearing, I was asked to ask questions to review the case,” he said. Any kind of seniority among the justices, he revealed, is only related to age.
“Culturally [Asians] show respect for older people. [This] is a value maintained by Indonesian society. However, on duty, all constitutional justices are equal. Even the chief and deputy chief positions don’t reflect any hierarchy in deciding cases in the Constitutional Court,” he added.
Justice Saldi further explained that the justices often debate in discussing cases, as a consequence of a justice’s independence and judicial independence. However, no matter how heated the argument is, it is only confined in the deliberation meeting and not taken personally. In addition, he said, in countries that acknowledges judicial independence, no pressure is exerted on justices who have different opinions. Justices may provide dissenting or concurring opinions in a case.
Separation of Powers
In the second session, Justice Saldi said that Indonesia upholds separation of powers, which was introduced by Baron de La Brède et de Montesquieu in his book L'Esprit de Lois (1748). Montesquieu divided state powers into the executive, legislative, and judiciary. Each has separate functions and authorities.
“The legislative holds the functions of lawmaking, supervision, representation, and budgeting. The executive holds the highest state administrative authority, including implementing the legislation formed by the legislative. The judiciary resolves issues related to the implementation of the functions of the executive and legislative,” he explained.
He added that at the earliest development of separation of powers, each state branch was not allowed to interfere with the authorities of other state powers because each has strictly separate power. However, the development of world state administration increasingly shows that this authority needs to be supported by a mechanism of checks and balances between each branch. Thus, many countries have shifted from parliamentary supremacy, in which laws made by parliament cannot be contested by other branches of power, to constitutional supremacy. As a consequence, the constitutionality of laws made by the parliament can be reviewed by the judiciary and can even be revoked if proven to be unconstitutional.
Such separation of powers is an important element in constitutionalism, which contains the basic philosophy of limiting the authority of each branch of state powers. The basic rules limiting state powers are generally set out in the constitution, then are further regulated in its laws.
Role of the Judiciary
Justice Saldi also said that the judiciary has the authority to resolve disputes between the state and citizens. So far, he said, citizens have always been seen as in a weaker position than state powers. Therefore, the judiciary can become a forum where balance is maintained between citizens and the state in relation to their respective interests and needs.
Therefore, through its authority to interpret the constitution and legislation, the judiciary can also assess whether the implementation of a state official’s decision and policy is right or not. The judiciary can correct errors and violations in the enactment and implementation of decisions, either by revoking already issued decisions or ordering the issuance of new ones.
However, the judiciary also needs to understand the limitations of its authority. "The judiciary should not carry out a judicial overreach beyond the mandate given to it. This judicial overreach can occur when judicial activism is carried out beyond its limits," he said.
Justice Saldi believes that if this was the case, judicial activism could turn into judicial adventurism, in which the judiciary exercise excessive intervention in the functions of other branches that have run well. As a consequence, there could be counter-resistance from other branches in the form of intervention in the judiciary. In some countries, this have occurred through revision of laws, reduction of judicial budgets, to replacement of existing judges.
On the other hand, the judiciary also needs to understand when to apply judicial restraint, where it limits itself in exercising its authority so as not to take over authority from other branches. Of course it is not easy for judges to strike a balance between these approaches when deciding cases, especially those that are closely related to human rights that need to be protected and upheld, not only procedurally, but also substantially.
Judicial activism by the judiciary is still acceptable to the public and academics. Generally, these judicial institutions have strong institutional legitimacy with a high level of public trust. On the other hand, judicial institutions that do not have strong legitimacy and have low public trust are prone to sharp criticism if they carry out judicial activism when making decisions.
Writer: Utami Argawati
Editor: Nur R.
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 12/14/2020 20:33 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.