Constitutional Justice Arief Hidayat, President of the Constitutional Court of Türkiye Zühtü Arslan, and Justice Abdelouahab Kherief of the Constitutional Court of Algeria at the AACC-CCJA Joint Conference, Tuesday (10/4/2022) at the Bali Nusa Dua Convention Center, Bali. Photo by MKRI/Ifa.
Tuesday, October 4, 2022 | 16:13 WIB
BALI (MKRI)—There is a stark contrast between the challenges to the protection and enforcement of human rights in Asian-African countries and in western or other developed countries. Challenges in developed countries could be contemporary issues, while in Asian-African countries the issues are more related to the impacts of the state’s political conflicts, violence, intolerance, freedom of speech, discrimination, the rights of persons with disabilities, and other similar issues.
The statement was made by Constitutional Justice Arief Hidayat at the Joint Conference of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC) and the Conference of Constitutional Jurisdictions of Africa (CCJA) on Tuesday, October 4, 2022 at the Bali Nusa Dua Convention Center (BNDCC), Bali.
During the discussion on “Constitutional Jurisdictions and Protection of Fundamental Rights: Crossed Looks from Africa and Asia,” Justice Arief said it is necessary to make different approaches and to have different values considering Asian-African countries have different characteristics from western countries in that one has communal culture while another has individualistic culture.
To that end, he said, the Joint Conference of the AACC and the CCJA can be a brand-new platform for collaborative cooperation among constitutional jurisdictions and a potential solution in order to overcome various challenges in the life of the nation and state.
He added that the Constitutional Court of the Republic of Indonesia had taken a part in the historic Asian-African Conference in 1955 by preparing to continue solidarity among Asian-African countries.
“In order to improve cooperation in various fields, especially in establishing supremacy of law, constitutionalism, democracy, as well as the protection of human rights in the effort to achieve welfare for the people, this joint conference may create the opportunity to establish a joint permanent secretariat of Asian-African constitutional jurisdictions. The goal is to improve cooperation between [Asian-African constitutional jurisdictions], to improve our strength in safeguarding the advancement and the dignity of Asian-African nations based on justice and lasting peace,” Justice Arief said in his presentation, alongside moderator Moussa Laraba, Secretary-General of CCJA.
Also read: CCJA and AACC Organize Joint Conference
Religion, Culture Distinguish Human Rights Implementation in Algeria
Meanwhile, Constitutional Justice Abdelouahab Kherief of Algeria, which is a member of the CCJA, said in his presentation that human rights in Algeria have different characteristics from that of other countries in the world, considering that religion and culture are vital for enforcing collective and individual rights in the country. He added that being a colonized country, Algeria had a vested interest in establishing a different constitution.
“Algeria adopted a constitution designed for the independence of the Algerian nation in economy, education, and other sectors. The Constitution of 1989, which was amended after a political crisis spanning from 1990 to 2000, has opened up opportunities for political pluralism, which is characterized by the emergence of 60 political parties. However, the amendment of 1996 banned the formation of political parties based on race, religion, and class. Article 41 of the Constitution prohibited people from establishing parties that were based on race, religion, class, etc. Meanwhile, human rights are regulated in the Constitutions of 2016 and 2020, which always contained a special chapter on human rights and freedoms. In addition, every constitutional amendment always discusses freedom, including the Constitutional Court’s power and authority,” Justice Kherief said.
He also revealed that since its establishment in November 2021, the Constitutional Court of Algeria has issued 41 decrees including 6 on election, 32 constitutional amendments on judicial review, and 2 decisions on the Constitutional Court’s internal system.
“The Constitutional Court of Algeria is a new, unique experience for Algeria considering that it has 11 justices, half of whom are professors and judicial figures. Affiliation with political parties and the legislature is prohibited in order to maintain our institution’s independence,” he remarked.
No Country is More Equal than Others
In the next discussion on “Actuating the Bandung Principles on Equality of All People, Races, and Nations in Asia and Africa,” the President of the Constitutional Court of Türkiye Zühtü Arslan revealed about equality in his country. He believes equality of all nations is a prerequisite for fair politics. The principle of equality in the Asian-African Conference (AAC) referred to the equality of every person and nation-race across the world. Therefore, the UN provision that only grants veto power to five countries needs to be reviewed. “[This is] because no country is more equal than others,” he said.
In Türkiye, everyone’s right to equality is protected through equality before the law, without any discrimination based on belief, religion, sect, or any such grounds. Article 10 of the Turkish Constitution is the main provision drafted to protect the principle of equality. The last paragraph of the Article 10 imposes positive and negative obligations on public authorities. Accordingly, the legislative, executive and judicial organs are required to act in line with the principle of equality.
The Court has developed and applied a test in interpreting Article 10 in determining breach of the principle of quality in both constitutionality review and individual application. The Court dismissed a request for annulment of the provisions allowing for an increase in penalties for offences committed against health-care professionals. It also examined a case of individual application, which concerned a female lawyer's expulsion from a courtroom for wearing a headscarf, which she argued was discrimination on account of religious belief.
“The applicant claimed, inter alia, that she was discriminated against on account of her religious beliefs. The Court held that no objective and reasonable ground was presented for preventing the applicant from taking part at the courtroom by wearing a headscarf for her religious convictions. Therefore, since the applicant was put in a disadvantageous situation compared to those female lawyers not wearing a headscarf, the prohibition of discrimination guaranteed by Article 10 of the Constitution was violated,” Justice Arslan explained.
Human Rights Enforcement Requires Peace and Democracy
Meanwhile, President Meaza Ashenafi Mengistu of the Supreme Court and the Constitutional Council of the Republic of Ethiopia said that relations between Asia and Africa have existed for a long time and developed well because of their long history. It helped end colonization in Africa, including within the framework of United Nations. Among the 24 countries attending the 1955 Asian-African Conference, only Ethiopia, Egypt, and Sudan represented Africa, while other African countries were still under colonialism. President Mengistu emphasized that in upholding human rights, peace and democracy are required. Democracy is needed to resolve state problems. One of ways is through the Constitutional Court and similar independent bodies to prevent violence at the national level.
“In Africa, the Constitutional Court is dedicated to interpret the law and is mandated to review the highest court, one of which is interpreting the Constitution and constitutional complaints,” he said virtually.
Cooperation between the AACC and the CCJA was initiated on August 9, 2017 with the signing of a memorandum of understanding in Surakarta, Central Java, Indonesia, where the two organizations agreed to share experiences in exercising constitutional jurisdictions and implementing democracy in Asia and Africa.
The joint conference was a side event ahead of the Fifth Congress of the World Conference on Constitutional Justice (WCCJ), which takes place on Wednesday–Thursday, October 5–6, 2022. The congress, which 95 courts and 4 organizations attended, will be inaugurated by President Joko Widodo on October 5. In addition to the congress, the Constitutional Court of the Republic of Indonesia will hold the 5th Indonesian Constitutional Court International Symposium (ICCIS) and the AACC International Short Course on Wednesday–Thursday, October 5–6.
Writer : Sri Pujianti
Editor : Lulu Anjarsari
Translator : Ahmad Yusuf, Alfhatin Pratama
Editor : Yuniar Widiastuti (NL)
Translation uploaded on 10/5/2022 10:32 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.