Chief Justice Anwar Usman of the Constitutional Court of Indonesia, President Omar Belhadj of the Constitutional Council of Algeria, Justice Simina Tănăsescu of the Constitutional Court of Romania opening the first session of the 5th Congress of the World Conference on Constitutional Justice (WCCJ), Wednesday, (10/5/2022) at the Bali Nusa Dua Convention Center, Bali. Photo by MKRI/Ifa.

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Wednesday, October 5, 2022 | 15:07 WIB

BALI (MKRI)—In the second session of 5th Congress of the World Conference on Constitutional Justice (WCCJ), which is under the main theme “Constitutional Justice and Peace,” President of the Constitutional Court of Türkiye Zühtü Arslan and President of the Constitutional Court of Latvia Aldis Laviņš delivered their presentations on “Application.” In his presentation, President Arslan said that the Constitutional Court of Türkiye has a role in mitigating conflicts, especially those on religious beliefs, for example with regard to the headscarf ban.

He went on to say that a controversy over headscarf worn by Muslim women in Türkiye has developed into a social conflict. The Constitutional Court of Türkiye based its decisions on this issue on individual rights and human rights.

“In 2020, the Federal Constitutional Court [of Germany] found the ban on female legal trainees wearing headscarves in the courtroom compatible with the Basic Law. … In France, the ban on headscarf and other religious symbols has been the subject of heated debate from the very beginning. … When it comes to Türkiye, a Muslim-majority country, intense discussions had taken place on the constitutionality of headscarf ban in universities and in public offices. In 2008, the Turkish Constitutional Court annulled constitutional amendments which Parliament had enacted to abolish the headscarf ban in universities17. The Court ruled that the amendments infringed the constitutional principle of secularism. With the introduction of individual application system in 2012, the Court has shifted its direction to apply constitutional principles to favor the individual and human rights rather than state ideology,” he added.

Member of Commission III of the House of Representatives (DPR) Abu Bakar Al Habsyi asked a question about the limitation of authority of the Constitutional Courts of Türkiye and Latvia. Responding to the question, President Arslan said that the Constitutional Court of Türkiye once reviewed and adjudicated a case on constitutional amendments. The Constitutional Court made a decision to reject the application.

“[The Constitutional Court of Türkiye] annulled [the law] and it had triggered a lot of complicated controversies in Türkiye on whether the Constitutional Court had that authority or not,” he said.

He further said that in carrying out judicial activism, the Constitutional Court of Türkiye faces the choice to keep implementing it or to exercise restraint over it. “The Constitutional Court must be neutral and must protect the Constitution from any interference, both legislative and executive,” he added.

Also read: Constitutional Courts Play Key Role in Ensuring Rule of Law, Foreign Minister Says

Context in Europe

Meanwhile, President of the Constitutional Court of Latvia Aldis Lavinś said that the Constitutional Court of Latvia has the authority to assess whether the state has carried out its duties and fulfilled the demands of the people. For this reason, President Lavinś mentioned that the Constitutional Court of Latvia takes into consideration the context in Europe as the situation will be easier when there is jurisprudence to find the right balance.

“According to the law governing the Constitutional Court’s procedural law, our decisions are binding and not just cooperative; our interpretation is binding for legislators,” he said.

Erga Omnes

Constitutional Justice Enny Nurbaningsih of the Constitutional Court of the Republic of Indonesia asked about the challenges faced by the Constitutional Courts of Türkiye and Latvia as well as the erga omnes nature of their decisions. The Constitutional Court of Türkiye, President Arslan said, takes into consideration the objective and subjective aspects before making decision on constitutional complaints.

“However, we look more from an objective approach, that the Constitutional Court’s decisions must be obeyed by all citizens. There is no need to file an individual application if there is a violation of the Constitutional Court’s decision and it is very important to exercise the supremacy of the Constitution. If the Constitutional Court comes to a conclusion that a law has violated the Constitution, everyone must comply [with its decision],” he said.

He also reminded that if there is an intention to amend the Constitution, one must consider that constitutional amendments are needed considering that the world is changing while the text of the Constitution is static.

“We need to change the text, but we need to make sure that it does not exceed the authority of the Constitutional Court. If we must add authority, then we have to amend the Constitution,” he said.

The 5th Congress of the WCCJ, which takes place on October 5-6, 2022, was slated to be inaugurated by President Joko Widodo on October 5. The WCCJ Bureau chose “Constitutional Justice and Peace” as the main theme of this year’s congress because of the fact that constitutional courts in some countries have key roles in seeking peace after armed conflict within the country. In addition, several national constitutions explicitly mention peace and reconciliation as the goals that they want to achieve.

The 5th Congress of the WCCJ is the highest-level international forum on the constitutional jurisdictions, considering that 119 countries are members of the WCCJ as per 2022. In addition to being a forum for discussion, exchange of ideas, sharing of experiences and best practices among WCCJ members, this Congress is one of the MKRI’s efforts to improve the quality of its decisions as well as an opportunity to further strengthen Indonesia’s position as a constitutional democracy based on the ideology of the five precepts of Pancasila.

At the same time, the Constitutional Court also holds the 5th Indonesian Constitutional Court International Symposium (ICCIS) on October 5-7, 2022 under the theme of “Constitutional Court and Conflict Resolution.” Constitutional Justice Suhartoyo is slated to deliver the opening remarks, followed by a keynote lecture from Constitutional Justice Saldi Isra. In the ICCIS, 15 speakers from various countries are scheduled to present their perspective and views related to the themes. Accordingly, the ICCIS will conclude with closing remarks by Constitutional Justice Daniel Yusmic Pancastaki Foekh.

Writer        : Lulu Anjarsari P.
Editor        : Lulu Anjarsari P.
Translator  : Ahmad Yusuf, Alfhatin Pratama
Editor        : Yuniar Widiastuti (NL)

Translation uploaded on 10/6/2022 06:28 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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