Constitutional Justice Daniel Yusmic P. Foekh and head of the Center for Research, Case Study, and Library Management Pan Mohamad Faiz closing the 6th Indonesian Constitutional Court International Symposium (ICCIS), Friday (8/11/2023). Photo by Humas MK.
JAKARTA (MKRI) — The 6th Indonesian Constitutional Court International Symposium ended on Friday, August 11, 2023 with closing remarks by Constitutional Justice Daniel Yusmic P. Foekh.
In his remarks, Justice Foekh said the symposium was not intended to provide solutions to all the challenges related to judicial independence, as more time was needed to discuss specific issues in more detail. “However, this symposium has opened a discourse on issues that may have received less attention in comparative studies of constitutional law, especially those related to judicial independence,” he said.
He stated that he had always encouraged employees to scrutinize and study latest issues on constitutional law and the judiciary in various countries in an atmosphere that upholds academic values, so as to provide substantive support to the constitutional justices. Therefore, the Constitutional Court of the Republic of Indonesia (MKRI) is open to collaborating with universities and research institutions affiliated with the speakers and participants of this symposium.
“On this occasion, let me invite all of you to submit papers to the [MKRI’s] Constitutional Review journal, so that these ideas and opinions can be read by justices, lawyers, and legal scholars in various parts of the world. The Constitutional Review journal is a scientific journal managed by the Constitutional Court of Indonesia and has been indexed by Scopus, making it one of the trusted references in the field of constitutional law,” he explained.
Presentation by Speakers
Earlier, on this second day of the symposium, Manuel Adrián Merino Menjívar, professor of constitutional law at the undergraduate and master’s levels at the Gerardo Barrios University, El Savador, delivered the first presentation by discussing a specific event in El Salvador on May 1, 2021 where the Legislative Assembly aligned with the president of the Republic decided to remove justices of the Constitutional Chamber of the Supreme Court despite them having six years remaining in term.
On that fateful day, he revealed, some deputies of the majoritarian party made a surprising proposal to remove the Constitutional Chamber justices with the argument that the Chamber had issued a series of arbitrary judgments out of the range of its competence that they violated the separation of powers and that they put into risk the health of Salvadorians by ruling against the measures taken by the government to fight COVID-19.
“An independent constitutional court is often the greatest counterbalance to power in a constitutional democracy. That is why both domestic and international regulations ensure special guarantees for those judges, especially constitutional judges, [such as] stability and tenure in office, which means that they can only be removed for legally-established reasons and through due process of law. What happened on May 1, 2021 in El Salvador is a perfect example of how power under the influence of authoritarian populism that simulates acting within constitutional rules can undermine any remaining democratic element that poses obstacle to complete concentration of power,” the professor concluded.
The next speaker, in his presentation Zoltán Szente, research professor at the Institute for Legal Studies of the Center for Social Sciences in Budapest, Hungary, highlighted a widespread view that democracy was declining around the world. He explained that upon observation of the Hungarian Constitutional Court, which has changed in recent years due to packing by the executive power, he had developed an analytical framework to prove the political bias of a constitutional court. He added that there has been a political trend that seeks to change the authority of the Constitutional Court by changing the fundamental authority in a way that cannot be judged legally, by prioritizing the political interests of the government, and by changing the method of constitutional interpretation.
He gave an example how those in power legally changed the method of legal interpretation and constitutional standards, but did not change the content of the constitution by reinterpreting the substance of constitutional concepts in favor of the government.
The next step is to make the Constitutional Court set constitutional requirements instead of repealing unconstitutional laws, defend unconstitutional laws, support the government by making interpretations that suit the political will of those in power, and annulling clearly unconstitutional laws with ex nunc (rather than ex tunc) effect.
Next, in his presentation, Islamic University of Indonesia (UII) lecturer Idul Rishan compared what happened in the Hungarian Constitutional Court and that in the Polish and Indonesian Constitutional Courts. Eid Rishan argued that through the struggle of a long political transition, the Hungarian Constitutional Court played an important role in developing the law and protecting human rights. However, after the amendment and revision of the law, the Constitutional Court became weaker and its independence was affected.
Next, Justin B. Apperson, a senior administrative specialist at the National Center for State Courts, highlighted the need for budgetary protection for the salaries and staffing needs of the judiciary. He said that, in general, the judiciary in the United States relies on appropriations provided by the legislature to fund the needs of the courts. For this reason, courts try to improve their relationship with other branches of power through strategic planning and performance assessment in order to fulfill their budgetary needs. On the other hand, he said, courts also sometimes use their authority to force budget approvals from legislative and executive officials even though it ultimately lowers respect and weakens relationships with other branches of power.
Next, Fritz Edward Siregar, a constitutional law lecturer at Indonesia Jentera School of Law, presented his research on judicial resilience against populist pressure in South Africa, Colombia, and Indonesia. He detailed four steps to maintain the independence of the judiciary: strengthening the legal and institutional framework, fostering a culture that upholds the principles of the rule of law, increasing judicial accountability and transparency, and encouraging dialogue and cooperation between judicial institutions. He believes that amidst the challenges of populist movements, support from the public is essential to help the judiciary gain legitimacy, so that judicial institutions are more authoritative and effective in carrying out their decisions.
On the second day of the 6th ICCIS Mónica Castillejos-Aragón from the University of California, Berkeley School of Law, USA; Osayd Awawda from Hebron University, Palestine; and Cekli Setya Pratiwi from the Institute of Human Rights and Peace Studies of Mahidol University, Thailand also delivered their presentations. (*)
Author : Ilham W.M.
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.
Friday, August 11, 2023 | 21:19 WIB 258