JP\/4\/MK<\/p>\n
Constitutional Court's compromise approach criticized<\/p>\n
Muninggar Sri Saraswati
\nThe Jakarta Post\/Jakarta<\/p>\n
The two-year-old Constitutional Court deserves credit for its
\nefforts to ensure transparency, including publishing its verdicts
\nonline, including dissenting opinions, shortly after they are
\nhanded down.<\/p>\n
This effort, which makes use of new technology, helps to
\nprevent backroom deals -- a practice often associated with
\nIndonesia's judiciary, which struggles with the perception that
\nit is riddled with corruption.<\/p>\n
The Constitutional Court also does everything it can to follow
\nall its practical procedures and stick to its schedule of cases,
\nwhich are also part of its efforts to avoid collusion.<\/p>\n
However, a seasoned constitutional law expert said the
\nConstitutional Court revealed its true nature in its second year
\nof existence.<\/p>\n
By true nature, he meant the court often issued \"compromise\"
\nverdicts by considering nonlegal matters such as political and
\neconomic issues, which could set a bad precedent in law
\nenforcement by allowing formal justice to be determined or shaped
\nby political considerations.<\/p>\n
This can been seen in several of the verdicts issued by the
\ncourt in 2005.<\/p>\n
A group of people filed in October a judicial review of the
\n2005 State Budget Law on the grounds that the budget violated
\narticle 31, paragraph 4 of the Constitution.<\/p>\n
The article says: \"The state (shall) give priority to the
\neducation budget (by allocating) at least 20 percent of the state
\nas well as regional budgets to meet the requirements of
\nimplementing national education.\"<\/p>\n
Although the court agreed the 2005 state budget (which
\nallocated just over 9 percent of total spending for the education
\nsector) was in violation of the Constitution, it ruled that the
\ncase was \"inadmissible\". The justices argued that if it accepted
\nthe case, the state would be exposed to economic chaos.<\/p>\n
Another case was related to the review of the controversial
\nWater Resources Law. Although the court rejected the case, it
\nordered the government to issue ancillary regulations for the
\nlegislation, in line with the court's interpretation of the law
\nas set out in its ruling.<\/p>\n
The court also required the government to ensure affordable
\npublic access to water resources, otherwise the plaintiffs would
\nbe allowed to file another judicial review of the legislation --
\nsomething that would be unprecedented in the court's history.<\/p>\n
Some constitutional law experts have commented that the
\nConstitutional Court too often takes into consideration the
\npolitical, social and economical implications of its decisions.<\/p>\n
The Constitutional Court must set aside such considerations in
\nupholding justice, particularly since its rulings are final and
\nbinding, they say. The function of the court should be limited to
\ninterpreting, applying and upholding the law.<\/p>\n
\"It seems they want to play it safe,\" one court observer said.<\/p>\n
But playing it safe is not the job of the Constitutional
\nCourt. It has the authority to declare whether an article or a
\nlaw violates the Constitution.<\/p>\n
The Constitutional Court is authorized by the state to review
\nexecutive and legislative steps in making laws. Dubbed the
\nguardian of the Constitution, the Constitutional Court should
\nnever compromise in an attempt to prevent any negative impact
\nfrom its verdicts.<\/p>\n
Whether or not political power influences the verdicts of the
\nConstitutional Court, only the justices and God know.<\/p>\n
What is known for sure is that the nine Constitutional Court
\njustices were selected and approved by the House of
\nRepresentatives, which represents political power.<\/p>\n
Three of the nine justice were nominated by the government,
\nthree others by the House and the rest by the Supreme Court.<\/p>\n
However, it is nearly impossible to prevent the justices from
\ntaking into consideration issues other than purely legal ones
\nwhen reaching a verdict, since they are only human.<\/p>\n
The justices' integrity, consequently, has become a major
\npoint of public consideration when talking about the court's
\ncredibility.<\/p>\n
Indeed, the Constitution is a broad issue and it is the
\njustices' main task is to interpret it.<\/p>\n
The interpretation of the Constitution, therefore, lies in the
\nhands of the justices. This interpretation may change in line
\nwith changes in the justices as well as conditions in the
\ncountry.<\/p>\n
\"The Constitution is not a holy book, neither is its
\ninterpretation. It is dynamic, in accordance with developments in
\nsociety,\" Constitutional Court chief Jimly Asshidiqie once said.<\/p>\n
However, some people link the compromise approach with the
\nignorance of the government and other parties in implementing the
\ncourt's rulings -- which are also laws.<\/p>\n
No wonder the Constitutional Court sent a letter to the
\ngovernment in September, warning that its decision to raise fuel
\nprices by an average of 126 percent in October had been made on a
\nshaky legal basis since it failed to cite a previous ruling by
\nthe court.<\/p>\n
Presidential Decree No. 55\/2005 on the new retail prices for
\noil-based fuels used the Oil and Gas Industry Law as a legal
\nbasis. But the court late last year ruled the government had to
\nrevise the law because a number of its provisions violated the
\nConstitution.<\/p>\n
The government initially ignored the court's warning letter,
\nalthough it later revised the decree on the fuel price increases.<\/p>\n
It is true courts generally must be passive, but for the
\nConstitutional Court to uphold the Constitution it has to follow
\nthe principle of judicial activism. This enables justices to
\nactively seek the truth through judicial reviews that reflect
\ndevelopments in society.<\/p>\n
Irman A. Putrasidin, an assistant to a Constitutional Court
\njustice, said Indonesia was not yet familiar with the idea of
\nconstitutional supremacy.<\/p>\n
\"It takes time for state institutions to comply with
\nConstitutional Court rulings because Indonesia is still in a
\ntransitional period,\" he said.<\/p>",
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