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Chief Justice Anwar Usman delivering a keynote speech and opening a focus group discussion virtually alongside Secretary-General M. Guntur Hamzah, Monday (16/11/2020) from the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) organized a focus group discussion (FGD) on “The Urgency of Constitutional Complaint for the Promotion and Protection of Constitutional Rights of Citizens in Indonesia” on Monday, November 16, 2020. Chief Justice Anwar Usman, in his opening speech, said that the amendment of the 1945 Constitution in the Reform Era was related to the changes to the guarantee of citizens’ constitutional rights. Its enforcement through the Constitutional Court then gained attention.

He then talked about the discourse on constitutional guarantee through constitutional complaint. Ideally, he said, this authority can be carried out in three methods: an amendment to the 1945 Constitution, a revision of the Constitutional Court Law, and a Constitutional Court decision.

“These three methods have different challenges. Through an amendment to the 1945 Constitution, it would take a complex consensus. Through a revision of the Constitutional Court Law, it would be more realistic because it would only change the Constitutional Court Law by adding an authority that is, both theoretically and in practice, reasonable. Through a Constitutional Court decision, this would be doable, but its regulation would be case-by-case,” Justice Anwar said alongside Secretary-General M. Guntur Hamzah.

He hoped the presentations of the experts in the FGD would bring more perspectives and insight in the discourse on the development of the fight for citizens’ constitutional rights. He then officially opened the FGD.

Four Perspectives in the FGD

In his report, Secretary-General M. Guntur Hamzah said that the FGD would take place for two days (Monday-Tuesday, November 16-17, 2020). Constitutional complaint would be discussed in four sessions, representing four perspectives: philosophical, international comparison, regulation, and organization.

Guntur added that after the speakers deliver their presentations, academics and practitioners from communities and civil society organizations would also be given floors to respond to the presentations.

The Need for Constitutional Complaint

In the first session, former Chief Supreme Justice (MA) of 2001-2008 Bagir Manan discussed the need for the additional authority regarding constitutional complaint. He believes several things must be taken into account before granting this authority to the Constitutional Court.

First, in order to make constitutional complaint part of the state life, there must be sound democracy. To achieve this, the democratic system in Indonesia must be strengthened. Second, the law-based state that puts emphasis on the legitimacy of state powers must be strengthened. Third, the state life must be based on the fulfillment of human rights, not only as a set of rules.

“If the Constitutional Court really exercise this constitutional complaint authority, it means that it protects human rights in full,” said Bagir Manan in the session moderated by Constitutional Court researcher Irfan Nur Rachman.

Constitutional Court’s Readiness

Next, Deputy MPR (People’s Consultative Assembly) Speaker Arsul Sani said that the discourse of constitutional complaint in the context of the amendment of laws is part of the recommendation on the rearrangement of the judiciary and the legal system in Indonesia. During an internal discussion in the House (DPR), one of the recommendations is not to regulate it through an amendment to the 1945 Constitution, but a revision of the Constitutional Court Law.

The question that arose in the House Commission III (tasked with overseeing law, human rights, and national security) is the readiness of the Constitutional Court and its nine justices. Arsul observed that the Constitutional Court had received the heavy-duty authority of resolving regional head election disputes.

“Will the constitutional justices be ready to enforce the principles of the Constitution, given that the must safeguard their independence?” he asked.

Negligence of State Agencies

In the next session, former Constitutional Justice of 2003–2008 and 2015–2020 I Dewa Gede Palguna discussed “The Theoretical Aspects of Constitutional Complaint.” He opened his presentation with the definition of constitutional complaint, which is the complaint by any individual citizens of a violation of their constitutional rights due to the negligence of state agencies or officials, in which there is no other legal measure.

He added that the idea of constitutional complaint was based on the effort to create a constitutional democracy in countries that upheld constitutional supremacy through the judiciary. He said Indonesia is a constitutional democratic state, as is clearly and explicitly expressed in the fourth paragraph of the 1945 Constitution.

Based on this fact, it is highly possible to apply constitutional complaint without an amendment to the 1945 Constitution, on the condition that it is implemented with restrictions through judicial interpretation. This would depend on the Constitutional Court’s bravery to provide authentic interpretations in the judicial review of laws to also include the judicial review of actions.

“Would this then depend on the capacity and the integrity or statesmanship of the justices who would exercise [this authority]?” he said.

Human Ego

The next speaker, Constitution Forum (FK) member Gregorius Seto Harianto said the concept of constitutional complaint drives the human ego that they would forget more important sacrifices. He believes that not everything should be challenged because the concept of fairness and equitability means treating people differently in proportion to their differences implemented in a law-based state.

“This means that everything must be realized on the basis of existing statutory regulations. And freedom for the Indonesian people doesn’t mean merely the freedom from colonialism, but also to realize ideals by implementing the holistic principles of Pancasila through the Constitution,” he explained.

The virtual FGD presented experts in law and state administration, such as the former Chief Supreme Justice of 2001-2008 Bagir Manan, the former Chief Constitutional Justice of 2003-2008 Jimly Asshiddiqie, the former Chief Constitutional Justice of 2013-2016 Hamdan Zoelva, the former Constitutional Justice 2003-2008 and 2015-2020 I Dewa Gede Palguna, constitutional law professor of UII Ni’matul Huda, the head of the National Law Development Agency (BPHN) Benny Riyanto, and the commissioner of the National Commission on Human Rights (Komnas HAM) Munafrizal Manan.

Writer: Sri Pujianti
Editor: Nur R.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 11/19/2020 16:30 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.

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