Constitutional Court needed to uphold laws<\/p>\n
Controversy around permits to hold public gatherings has
\nresurfaced. Legal expert Frans H. Winarta offers his view on the
\nissue.<\/p>\n
JAKARTA (JP): A public debate on the government's rulings that
\nstipulates the requirement of a permit for a gathering is going
\non. The government has applied the rulings based on its
\ninterpretation of Article 510 of the Criminal Code, which
\nrequires permits for parades and festivities. The article, which
\nis actually part of our Dutch-inherited criminal code, has been
\ninterpreted by the government as applicable to scientific
\nseminars, academic forums, discussions and conferences as well.<\/p>\n
The debate, focusing on whether or not it is appropriate to
\napply the article as part of the government's permit policy, is
\njoined in by legal experts, the police, the National Commission
\non Human Rights, members of the House of Representatives and
\ngovernment officials.<\/p>\n
The Coordinating Minister for Political Affairs and Security
\nSoesilo Soedarman is planning to set up a special team to study
\nthe controversial issue. Rudini, the former minister of home
\naffairs, is of the opinion that the policy of requiring permits
\nis no longer relevant because Indonesia has been enjoying a
\nhighly stable and secure condition.<\/p>\n
On the other hand, Minister of Home Affairs Moch. Yogie S.M.
\nbelieves that the policy is still relevant when it comes to
\ngatherings such as seminars, although a notification to the
\nauthorities, rather than a permit, is sufficient.<\/p>\n
As a matter of fact, the government's initiative, in studying
\nthe policy of requiring permits on their own, may potentially
\nlead to more complications, because the results are likely to be
\nvery subjective. Therefore, it seems that what we need is an
\nindependent body capable of deliberating and determining whether
\nthe policy is still relevant and whether Article 510 of the
\nCriminal Code is indeed constitutional or not. The most
\nappropriate independent body for these purposes would be a
\nConstitutional Court.<\/p>\n
At any rate, a Constitutional Court would be better suited to
\nexamine the constitutionality of the policy of requiring permits
\nby means of the motion of impeachment in the House, or by means
\nof a Constitutional Petition from the government or individuals.
\nIn the case of Article 510 in particular, the government itself
\ncan request the Court to decide on its constitutionality.<\/p>\n
It seems that we are in the midst of a contradiction. On the
\none hand, the promise and progress of openness and
\ndemocratization are increasingly emphasized. On the other hand,
\nthe government itself, which took the initiative that started the
\nprocess, seems to strongly adhere to the policy of requiring
\npermits -- a policy that is basically anti-democracy. It is a
\npity that the democratization bandwagon should be slowed down by
\npotholes in the form of the permit requiring policy.<\/p>\n
It is necessary to study the policy of requiring permits in
\nlight of the right to associate and the right to express one's
\nopinions, as guaranteed by our Constitution.<\/p>\n
More strangely, this policy of requiring permits has not been
\nconsistently applied. In fact, it has been put into effect
\ndiscriminately. Two similar types of organization, holding
\nidentical kinds of gathering, may obtain different results when
\napplying for the same permit. We have also had cases in which the
\nthreat of arrest has been used, or a gathering has been disbanded
\nby force.<\/p>\n
If we insist on applying this policy, then the international
\nworld will have difficulty understanding our real stance on
\ndemocracy.<\/p>\n
On the one hand, our high-ranking officials keep reiterating
\nthe fact that in Indonesia we have achieved and maintained
\nunquestionable stability and security. But, on the other hand,
\nthere is still a strong feeling of fear in regards to opposition
\nand all its criticisms -- regardless of the fact that the
\ngovernment has never recognized the existence of opposition
\nparties in this country. In addition, our experience has
\nrepeatedly demonstrated that criticisms can be constructive in
\nnature, and therefore, highly useful to the government.<\/p>\n
The debate surrounding the permit policy would not have to go
\non and on if we have a Constitutional Court, that can serve as an
\nimpartial judge. This court can be expected to give us a fair and
\njust ruling.<\/p>\n
It is perfectly relevant to talk about the formation of a
\nConstitutional Court, particularly because we still have plenty
\nof legal products from the colonial era that have to be replaced
\nbecause they are no longer suitable and no longer conform to the
\npublic feeling of justice.<\/p>\n
A number of legal experts have expressed their opinion
\nconcerning several articles in our Criminal Code. Some, for
\nexample, believe that Articles 154 to 157 of the Criminal Code --
\nmore popularly known as \"hate-sowing articles\" -- are rather
\ncontroversial, since they tend to be repressive and anti-
\ndemocracy.<\/p>\n
Furthermore, our Anti-subversive Act has been debated among
\nour legal experts and practitioners for a long time, without
\nsatisfactory solution.<\/p>\n
These are just some of the reason we need a Constitutional
\nCourt, which could play an active role in reviewing all legal
\nproducts, including those originating from the Dutch colonial era
\nand those created after our independence.<\/p>\n
The Court can conduct reviews based on requests made by the
\ngovernment, the House, individuals or ordinary courts. The
\nConstitutional Court can be set up as part of our Supreme Court,
\nor it can be established as a completely independent body, as in
\nother countries, in which it is ruled by the Constitution itself.<\/p>\n
The writer is an advocate based in Jakarta.<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/constitutional-court-needed-to-uphold-laws-1447893297", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }