Chief Justice Anwar Usman attending an international symposium of the Association of Asian Constitutional Courts and Equivalent Institutions hosted by the Constitutional Court of Mongolia virtually, Monday (6/6/2023) from the Court’s main building in Jakarta. Photo by MKRI/Panji.
JAKARTA (MKRI) — The Chief Justice of the Constitutional Court of the Republic of Indonesia (MKRI) Anwar Usman attended an international symposium of the Association of Asian Constitutional Courts and Equivalent Institutions hosted by the Constitutional Court of Mongolia on Monday, June 5, 2023. The chief justice attended the event online alongside Secretary-General Heru Setiawan and several other staff members at the Court’s main building.
On the occasion, Chief Justice Anwar delivered a presentation on “Protection of Human Rights in Law Judicial Review of Laws in the Constitutional Court of Indonesia.” He said the authority to review laws for the Constitutional Court of Indonesia is its core business among other authority. The Constitutional Court’s authority to review laws against the 1945 Constitution is a checks-and-balances authority against the power of the executive and legislative branches.
“The executive and legislative institutions have the authority to positively form laws, while the Constitutional Court has the negative authority to cancel them. This paradigm of balance between state institutions stems from the idea of the need for balance in a democratic system that prioritizes the people’s sovereignty and the sovereignty of norms that have become a state consensus,” he said virtually before 38 participants from various countries.
He believed this to be based on the factual notion that power born in a democratic system is majoritarian and has a tendency of abuse. As a result of this majority, the authority of the legislature and the executive in forming a law is strictly regulated, both formally and materially. The formal rules determine that a law must be formed in accordance with the lawmaking process. Meanwhile, from a material aspect, the substance or content of a law must not conflict with the constitution as a higher regulation. Therefore, the review of laws against the Constitution in the Constitutional Court can involve these two aspects, namely formal and material review.
“An example of the protection of human rights or citizens’ constitutional rights through the judicial review mechanism is the protection of citizens’ constitutional rights in education. The 1945 Constitution explicitly mandates that the national education budget be set at one-fifth (20%) of the total state budget (APBN) and regional budget (APBD). The provision of education budget setting in the Constitution is a constitutional amendment made after the 1998 Reform,” he explained.
Chief Justice Anwar emphasized that although normatively the amendment of the 1945 Constitution in 2002 stipulated that the state has an obligation to allocate an education budget of 20% of the total budget of the central and local governments, it does not mean that the issue can be implemented immediately. In fact, he continued, Law No. 20/2003 on the National Education System, especially in the elucidation to Article 49, actually allows for the fulfillment of education funding in stages. Then finally, the elucidation to the article was declared unconstitutional through judicial review in the Constitutional Court in case No. 011/PUU-III/2005.
He emphasized that in its consideration, the Court stated that the 1945 Constitution expressis verbis had stipulated a minimum education budget of 20% from the APBN and APBD, so it could not be reduced by any laws and regulations below it. In addition, the elucidation to Article 49 of Education System Law is not explanatory, but is a new norm, so it has obscured the main norm. For this reason, the elucidation to Article 49 must be canceled. After the Court decision was issued, the Government finally allotted 20% of the education budget as clearly stipulated in Article 31 paragraph (4) of the 1945 Constitution.
In the context of human rights protection for indigenous peoples, Chief Justice Anwar continued, the Court through the judicial review of Law No. 41 of 1999 on Forestry, filed by several associations of indigenous peoples’ administrators, reviewed Article 1 point 6, which reads “Customary forests shall be state forests located in the territory of indigenous peoples.”
Chief Justice Anwar said the Petitioners argued that such a norm constituted denial of customary forests where indigenous peoples had resided in for generations. The norm defines customary forests not to belong to customary law communities, but as state forests that the state can utilize at any time without any approval/permission from customary law communities who have been living in the forests for generations, when in fact customary forests should be defined as lands with customary rights that belong to customary law communities.
In this case, the Court held that the Forestry Law had treated customary law communities differently from other legal subjects. In this context, the legal subjects in question are the state, customary law communities, and holders of land rights on which forests are located. Due to this different treatment, customary law communities potentially and factually lose their rights to forests as natural resources for their lives, including their traditional rights. Therefore, due to the enactment of the a quo norm, customary law communities face difficulties in fulfilling their needs through the forests.
Thus, with regard to customary forests, the state’s authority over customary forests is limited. Indigenous forests are within the scope of customary rights because they are located within a unitary customary law community territory whose demonstration is based on traditions that live in the atmosphere of the people (in de volksfeer). The customary law communities have the right to open its customary forests to be controlled and cultivated for the fulfillment of personal and family needs. Thus, it is not possible for the rights held by customary law communities to be abolished as long as they meet the requirements as stipulated in Article 18B paragraph (2) of the 1945 Constitution.
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The international symposium was divided into two sessions with ten speakers—Chief Justice Anwar Usman, Chairperson of the Constitutional Court of Kazakhstan Elvira Azimova, Constitutional Justice Andrey Bushev from Rusia, Korean Constitutional Justice Kim Ki-young, Constitutional Judge Chinara Aidarbekova of Kyrgyzstan, member of the Constitutional Tribunal of Myanmar Marlar Aung, and Supreme Justice Muhammad Ali Mazhar of Pakistan.
Author : Utami Argawati
Editor : Lulu Anjarsari P
Translator : Yuniar Widiastuti (NL)
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.
Monday, June 05, 2023 | 16:10 WIB 235