Chief Justice Anwar Usman giving a keynote speech after inaugurating a smartboard mini courtroom at Brawijaya University, Friday (11/5/2021). Photo by Humas MK/Hendy.

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Saturday, November 6, 2021 | 20:50 WIB

MALANG, Public Relations—One of the most up-to-date and interesting books on constitutional amendment is one by Professor Richard Albert, a constitutional law expert from the University of Texas, entitled Constitutional Amendments: Making, Breaking, and Changing. The 338-page book, which consists of 3 main sections and 6 subsections, had been reviewed by the Constitutional Court (MK) in 2019. The book started off with two fundamental questions. First, what is constitutional amendment? Second, how should the drafters of the constitution formulate the procedure?

“These two seemingly simple basic questions do not have simple answers. The challenge to answer them in detail is enormous. They are complicated to answer,” said Chief Justice Anwar Usman in his keynote speech on “Constitution Amendment” after the inauguration of a smartboard mini courtroom at Brawijaya University of Malang on Friday, November 5, 2021.

In the first section “Forms and Function,” Albert outlined the formal procedure of constitutional amendment as part of the principle of constitutionalism in the concept of a rule of law. This formal procedure aims to correct the imperfections of the constitution in the future and to differentiate between a constitution and an ordinary law. Albert believes the formal provisions for the amendments to the Constitution must create a measurable procedure and take into account democratic values. The most important thing from the formal amendment process of the constitution is to make formal changes to the constitution as a medium to apply the principles of a living constitution.

“The author also points out that formal changes are not the only mechanism for changing the constitution, because state administration practices are part of the unwritten constitution. We know the unwritten constitution as a convention. A concrete example of this convention is the state address that the president delivers every August 16,” Justice Anwar said.

Comparison of Constitutions

In the second section “Flexibility and Rigidity,” Albert compared the constitutions of Indonesia and the US. He even states explicitly that Article 37 of the 1945 Constitution reflects a more flexible mechanism for constitutional amendments when compared to Section Five of the US Constitution. He also reveals that Article 37 paragraph (5) of the 1945 Constitution is the expression of state nationalism, which aims to maintain the values of pluralism in Indonesia, which is very diverse ethnically, while at the same time maintaining the founders’ national commitment as the Unitary State of the Republic of Indonesia.

In the third section “Creation and Reform,” Albert talks about two different roles of the Constitutional Court and the judiciary in the constitutional amendment process. The Supreme Court of Canada, for example, has the authority to assess or review the constitutionality, both from the substantive and procedural aspects, of the proposed constitutional amendment to be carried out by the Canadian parliament. It has a long history of advising MPs on how and why constitutional amendments should be made. Although it has the authority to reject proposed constitutional amendments, in practice, the Canadian Parliament usually first submits a constitutional amendment proposal to the Supreme Court, and then the Supreme Court provides guidance to keep the amendment constitutional.

Although the Constitutional Court of the Republic of Indonesia (MKRI) does not have the authority to assess the constitutionality of the constitutional amendment process as the Canadian Supreme Court does, in practice, the MKRI has reformulated the meaning of Articles 6A and 22E of the 1945 Constitution in the Decision No. 14/PUU-XI/2013. The Court approached the interpretation of implementation of the legislative elections and presidential elections through the systematic and grammatical interpretation of the original intent.

“So, this new interpretation had implications on legislative elections, which were originally held separately where the legislative election was conducted first and the presidential election conducted after, to be conducted simultaneously. The Constitutional Court’s decision is said by some experts to be an informal constitutional amendment process and is part of the judicial authority of interpretation of the Constitution, Justice Anwar explained. 

Smartboard Mini Courtroom

Justice Anwar said that the Court’s collaboration with universities since 2003 has significantly improved public awareness and understanding of the 1945 Constitution. This is apparent in the cases that the Court has ruled. In addition, access to justice is better following the remote hearing technology placed at law faculties across the country. Initially, videoconference facilities were built at 42 universities across all provinces. However, they will be replaced by smartboards in mini courtrooms at law faculties in universities across the country. This will not only facilitate justice seekers in filing petitions and litigating in the Constitutional Court, but also provides transparency of constitutional justice.

With the technology, Justice Anwar added, the community, especially the academic community, can directly monitor the proceedings in the Constitutional Court in real time. In addition, it can also be used for academic purposes such as public lectures, scientific discussions, and seminars. Amid the COVID-19 pandemic, the use of remote court can be maximized. This aims to implement health protocols and prevent direct interactions that can lead to massive spread of the virus.

“The remote hearing [facility] has contributed to the success of simultaneous regional election cases in 270 regions in 2020. Indeed, although there are currently many platforms for online trials or meetings, [they] often encounter problems. Therefore, I hope that the use of the smartboard mini courtroom can be maximized for the wider community in the future,” Justice Anwar concluded.

Writer        : Nano Tresna Arfana
Editor        : Nur R.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/9/2021 15:00 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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