I Dewa Gede Palguna moderating the discussion of the 6th Indonesian Constitutional Court International Symposium with speakers Mirza Satria Buana from Lambung Mangkurat University and Idul Rishan from UII, Thursday afternoon (8/10/2023) in Jakarta. Photo by Humas MK.

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JAKARTA (MKRI) — The constitutional discussion in the 6th Indonesian Constitutional Court International Symposium (ICCIS) continued to the second session on Thursday afternoon, August 10, 2023 in Jakarta with a review of concrete efforts to strengthen and implement the independence of judicial institutions in several countries. This time, I Dewa Gede Palguna from Udayana University moderated the discussion.

The speakers for the session were Prof. Simon Butt, Director of the Centre for Asian and Pacific Law at the University of Sydney Law School, Australia with a presentation on “Constitutional Court Decisions on the Judicial Independence of Other Indonesian Courts;” followed by Mirza Satria Buana and Ellisa Vikalista from the Law Faculty of Lambung Mangkurat University with a presentation on “Weak-Form Review and Judicial Independence: A Comparative Perspective.” Cekli Setya Pratiwi from the Institute of Human Rights and Peace Studies of Mahidol University, Thailand and Andriani Wahyuningtyas Novitasari from the Constitutional Court of the Republic of Indonesia (MKRI) were respondents for the first presentation while Eid Rishan from Universitas Islam Indonesia and Nalom Kurniawan from the MKRI were respondents for the second.

In his presentation on “Constitutional Court and Judicial Independence: A Comparative Perspective,” Prof. Butt discussed two decisions of the MKRI on judicial independence such as infrastructure and its impact on the welfare and tenure of judges. He analyzed the Constitutional Court Decisions No. 005/PUU-IV/2006 on the dispute between the Judicial Commission and the Supreme Court and No. 26/PUU-XXI/2023 on the Tax Court and their practice in Indonesia and discovered that independence is a prerequisite for the fulfillment of a fair trial for citizens. In addition, he asserted that judges should be free from pressure or threats, nor feel afraid of retaliation for making decisions, thus must be free from pressure, coercion, threats, and offers of recompense including economic benefits.

“However, the Court said there are some limitations… because independence goes hand in hand with accountability realized by supervision. There is a particular sensitivity about judicial independence which meant that care was required when devising accountability mechanisms. … So the Court decided that the Judicial Commission couldn’t formally examine the performance of the Supreme Court [because of its] judicial independence. … The critique comes in using judicial independence as a shield. I think the Supreme Court has protected many of its judges from scrutiny as much as possible,” he explained.

Cekli Setya Pratiwi responded to this presentation by stating that the state institutions’ compliance with the Constitutional Court Decision was still far from optimal as reflected in the case on institutional independence involving the Supreme Court and the Judicial Commission. She asked Prof. Butt what kind of regulations should be applied so that the Constitutional Court’s decisions can be obeyed and applied properly by relevant stakeholders.

Implementation of Judicial Independency

Meanwhile, in his presentation, Mirza Satria Buana examined the shift of the Constitutional Court’s judicial review power from strong-form review to weak-form review. He compared the use of those reviews in the United States (strong) and commonwealth countries (weak). He also outlined some anomalies from both reviews. He then recommended that the weak-form review is not suitable for the constitutional law in Indonesia because the state does not have the prerequisites and strong supervision through parliament. He expected that the Constitutional Court return to its original strong-form review in order to strengthen legal constitutionalism.

Also read: ICCIS Talks Independence of Constitutional Jurisdiction

The hybrid (virtual and on-site) symposium will run for two days—Thursday to Friday, August 10 – 11, 2023—which nearing the 20th anniversary of the Constitutional Court on August 13. At the 6th ICCIS, the Court invited researchers, academics, and legal practitioners to discuss various perspectives on the importance of the judicial independence, especially of the Constitutional Court. The subthemes are independence of the Constitutional Court in the democracy era; the independence of constitutional judges in the decision-making process; threats to judicial independence posed by populist movements; the Constitutional Court’s budget and financial independence; and the Constitutional Court’s performance and independence of judicial staff.

Author       : Sri Pujianti
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.

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