Former constitutional justice I Dewa Gede Palguna and Prof. Bertus de Villiers of the State Administrative Tribunal of Western Australia speaking at the first discussion of the International Short Course of the AACC, Wednesday (10/5/2022) at the Bali Nusa Dua Convention Center, Bali. Photo by MKRI.

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Wednesday, October 5, 2022 | 17:40 WIB

BALI (MKRI)—In the first discussion of the International Short Course of the Association of Asian Constitutional Courts and Equivalent Institutions (AACC), former Constitutional Justice of 2003–2008 and 2015–2020 I Dewa Gede Palguna and member of the State Administrative Tribunal of Western Australia Prof. Bertus de Villiers delivered their speeches on Wednesday, October 5, 2022 at the Bali Nusa Dua Convention Center (BNDCC), Bali, Indonesia.

Palguna cited the Preamble to Indonesia’s 1945 Constitution: “And then to form a Government of the State of Indonesia that protects all Indonesian people and the entire land of Indonesia and to develop the welfare of the people, the life of the nation, and participate in the world orderliness based on freedom, eternal peace and social justice, National Freedom of Indonesia is prepared in a Constitution of the State of Indonesia, formed in a structure of the State of the Republic of Indonesia with people sovereignty based on the One Supreme God, Just and civilized humanity, Indonesian unity and Democracy lead by wisdom in Deliberation/Representation, and by realizing a Social justice to all Indonesian people.”

“The issues of justice are broader than ever before, covering many social issues,” he said.

He also said that Indonesia’s state ideology Pancasila refers to the five principles that serve as Indonesia’s foundation. It is enshrined firmly in the Preamble to the 1945 Constitution. There is no definition and/or scope of social justice adopted universally. Although no universal definition or understanding on social justice, experts and activists have agreed on the minimum principles for social justice.

Palguna added, most social experts and activists agree that, historically, social justice issues can be traced back to the industrial revolution era in the early 19th century, which “created” social strata in the society based on wealth (and the gap between the rich and the poor was significant and became wider). There is a strong belief that human rights-based approach is very important to attaining social justice. Until today, social justice is still connected to social and economic rights. Experts believe that it will be reinforced if it includes all human rights.

In terms of laws, he added, if there is a law that do not meet one of the conditions for social justice, individual citizens who have a constitutional stake, even only one, can challenge the constitutionality of the law and lodge a case to the Constitutional Court for the law to be reviewed. If the Constitutional Court finds the arguments reasonable, it will rule the law unconstitutional and the law will lose its binding legal force.

The issue is, Palguna added, in many cases of violation of constitutional rights in general and of social justice principles specifically, the violation is not because the law is unconstitutional, but because public officials take action and commit negligence that violate the citizens’ constitutional rights based on the law. In numerous countries, the case can be brought to the Constitutional Court as a constitutional complaint. Unfortunately, the Constitutional Court of Indonesia is unable to rule on such cases.

Meanwhile, Dr. de Villiers explained that courts can be play a transformative role and change the pathway of the countries in which they serve. He said that courts can breathe life into the dry text of a constitution.

“The judiciary can make a rainbow of the black print. The judiciary can let the silent words of the constitution speak out by resolving disputes based on findings of fact, the application of relevant law, and the exercise of discretion. It can fill in gaps in policies,” he said. 

He believes the judiciary is responsible, based on the facts and submissions before it, to declare the law of the land for which it is responsible. The judiciary cannot write a constitution, but it can enliven it. The life-giving ability of the judiciary applies to long established, young and emerging democracies.

In addition, he said that the dynamics that influence the outcome of reasoning of the judiciary are complex, diverse, and influenced by the social issues of the day. “In the Marbury v Madison-judgement the Supreme Court of the United States introduced what is today known as constitutionalism (Marbury 1803). In Brown v the Education Board of Topeka, the Supreme Court of the United States in the briefest of judgements overturned the dogma of ‘separate but equal’ and set the USA (and consequently many other nations) on a course of civil rights and equality (Brown-case 1954). These judgements, arising from the oldest written constitution, are exemplary examples of transformative constitutionalism,” he said.

Judiciary’s Transformative Competency

Furthermore, Dr. de Villiers said that the provisions of the constitution ought to be used by the courts to actively address the essential issues that cause inequality in a particular society, for example, through the recognition of socio-economic rights; minority and indigenous rights; or environmental rights.

He added that with Kenya’s Constitution of 2010 being a transformative charter, the Supreme Court became transformative, but in doing so the court has emphasised values that may as well also be associated with traditional liberalism (for example social justice, equality, devolution, human rights, rule of law and freedom and democracy).

He asserted that it is easier to describe transformative constitutionalism than to define it. Whilst what is exactly meant by transformative constitutionalism remains ambiguous, it has been suggested that the essential difference between transformative constitutionalism and traditional liberalism is that the latter pursues formal equality, whilst the former pursues substantial equality.

“It is not surprising that transformative constitutionalism has ‘received a fair amount of criticism’ since it seeks greater involvement of the courts in policy priorities and even budgetary allocations. Pursuing an own agenda may bring the courts in conflict with other organs of government; whilst being enslaved to the text of the constitution may erode the public credibility and legitimacy of the courts.   In each of the case studies below the highest court managed to retain the umbilical constitutional cord that links it to the nation; it upheld and respected the separation of powers; it adhered to the constitution under which it serves; and yet it managed to change the direction of the nation,” he asserted.

In essence, the professor highlighted, the transformative role and ability of a court goes deeper and is more multi-layered than the age of the constitution under which the courts function. The transformative role of the judiciary may arise from a democratisation process; an end to civil war; eradication of socio-economic inequality; recognition of ethno-minority and indigenous rights; accommodation of societal plurality; ensuring equal treatment of all individuals; laying the contours of federal-state intergovernmental relations; upholding constitutional values such as the separation of powers, or acknowledging the importance of environmental issues.

Whilst transformative constitutionalism is often referred to in literature within the context of socio-economic rights, the true test for transformative constitutionalism is whether the courts address the issues that a relevant to a particular society and whether those judgements give rise to practical changes within the society.

Discussion Session

In response to the presentations by both speakers, Fransiska, a substitute registrar of the Constitutional Court of the Republic of Indonesia, said that she agreed with the notion of transformative judiciary. The state implements the Constitution but there may be an emergency in which the state’s policies lead to a conflict with the Constitution. She said that during the pandemic, the Government bore responsibility for the state of emergency, but the State Budget Law has not determined the time limit for the state budget for such a state. “Based on your experience, is there any basis of justice that enables a constitutional court to be put on trial? Have you seen any ruling by the court on other institution’s authority or court? Can we say that such a ruling is constitutional?” she asked.

In his response, Dr. de Villiers said that as far as the Mabo decision, the High Court of Australia recognized native title. There were strong opinions in Australia that Parliament should override the decision by legislation, but the Parliament decided to respect the decision.

 “I’m not sure if you would understand what it means to overrule 200 years of constitutional tradition. It was like a peaceful revolution in Australia, but this is where the point comes in of respect for the rule of law.… All of us, whether we are from young democracies or old democracies, it is a continual process to encourage people to respect for the rule of law and that is what was demonstrated in Mabo.… judges are not elected. The judges are probably the people who are most removed from society. That’s why people say judges sit in an ivory tower…. Sometimes it also means they don’t really understand what goes on outside. So, I think if judges transform society, it mustn’t be because of one single judge wanting to hand down certain judgment. There must be a consensus in society that our society needs to be transformed,” he replied.

Discussion on General Elections

In the second session, Professor Topo Santoso from the University of Indonesia delivered his presentation on general elections for people’s prosperity. He said general elections are one of the benchmarks to bringing prosperity to the people. “The voted leaders will bring changes that bring about prosperity,” he said.

Furthermore, he emphasized a theory that competitive elections can be an incentive for politicians to provide public goods. Meanwhile, quantitative research observed that democracy increases spending, but it only makes small impacts or none to education and health, after the implementation of appropriate control. In addition, a case study showed that democratic politics results in a small or negative incentive for politicians to promote reform. When they do it, it is unlikely because of the pressure of general elections. The impacts of democracy on social services are more complex than suggested by these recent theories.

Prof. Topo also explained that in order to ensure honest and fair general elections, the General Election Commission (KPU) must take necessary measures; the Elections Supervisory Body (Bawaslu), law enforcers, and the Constitutional Court must perform monitoring, ensure the enforcement of election laws, and resolve election disputes; and by the people must guard and oversee elections through various nongovernmental institutions, election observers, and reporting to Bawaslu.

He further stressed the need to educate voters to vote for the best candidates who have credibility and competency to bring about prosperity and not to vote for candidates who commit violations such as money politics (vote buying). The people must also monitor/evaluate executive leaders and their representatives in legislative institutions after they are voted to ensure that they fulfil their promises during the election campaign and to ensure that they will bring prosperity for the people. If they break their promises, it will negatively impact those in the next elections.

The Constitutional Court of the Republic of Indonesia (MKRI) organizes an international short course annually as the Permanent Secretariat for Planning and Coordination of the AACC. The short course, which was initiated in 2015, includes various topics on the work of the constitutional courts and equivalent institutions, and the promotion of constitutional rights.

The speakers of the short course were justices, former justices of the Constitutional Court of the Republic of Indonesia, academics, researchers, and law practitioners. The participants were substitute registrars, rapporteur judges, researchers, and legal staff of the AACC members, as well as academics from Indonesian leading universities. The various backgrounds of the speakers and participants of the short course have encouraged fruitful discussions from different perspectives and experiences based on their respective skills.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
Translator  : Ayu Wulandari
Editor        : Yuniar Widiastuti (NL)

Translation uploaded on 10/7/2022 00:44 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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