The Constitutional Court: Don't let the sky fall in<\/p>\n
Mohamad Mova Al 'Afghani, Jakarta<\/p>\n
\"The state (shall) give priority to the education budget (by
\nallocating) at least 20 percent of the state as well as regional
\nbudgets to meet the requirements of implementing national
\neducation.\" (Article 31 paragraph 4, 1945 Constitution, 4th
\nAmendment)<\/p>\n
Clear legal text such as the above can often be subject to
\nmultiple interpretations by scholars, judges and politicians.
\nFaced with difficulties in managing the budget, the government
\nhas always advocated that the text should read \"the state shall
\napply sustainable increases in the education budget of up to 20
\npercent\". However, there are also scholars and judges who
\nconsider that the text should read as is, and that 20 percent is
\nactually the minimum allocation for the education budget.<\/p>\n
When a group of people submitted a judicial review of the
\nState Budget Law to the Constitutional Court last May, the court
\nwas faced with a dilemma. The state budget is, after all, a law,
\nand as a law, it could be invalidated by the court. The problem
\nis, however, if the State Budget Law was invalidated, the state
\nwould have to refer to the budget of the previous year; something
\nthat would lead to economic chaos.<\/p>\n
Thus, there are two options that could be considered: to
\ndeclare the law constitutional, or to reject the applicant's
\nlegal standing before the court.<\/p>\n
The fourth amendment of the Constitution itself was poorly
\ndrafted. Inserting a very technical provision in a budgetary
\narticle was not a wise thing to do. Economic conditions can vary
\nfrom year to year and each demand a certain unique treatment.
\nInserting a technical provision poses the danger that if the
\ngovernment fails to fulfill the provision, it would violate the
\nConstitution. Nevertheless, the fourth amendment has been
\nratified and become the law of the land, so everyone has to
\nadhere to it.<\/p>\n
The government and a minority of judges at the court
\nconsidered the State Budget Law and the National Education Law
\nalready in line with the Constitution. They were of the opinion
\nthat a \"gradual increase in the education budget\" was compatible
\nwith the Constitution.<\/p>\n
Their argument, however, was not based on strong rationale.<\/p>\n
First, when drafters put figures in a contract or a law, they
\nalways intend to mean either to indicate the figures per se, to
\nindicate the uppermost ceiling of a condition, or to prescribe a
\nminimum requirement. These are often clarified with the phrases
\n\"maximum\", \"at the latest\" or, in the case of Article 31, \"at
\nleast\".<\/p>\n
Second, there are probably only four possible legal norms
\nrecognized in the Indonesian legal system; that is, to prohibit,
\nto allow, to encourage and to obligate. Article 31 was not
\nintended to allow the government to prescribe their own
\neducational budget percentage, and neither was it intended to
\nsimply encourage them to gradually increase the budget allocation
\nfor education.<\/p>\n
Third, the provision is there because it was intended to
\nsignify a specific meaning. Interpretation must therefore be
\nstrict, focused, but reasonable. If a Constitution can mean
\nanything, then it means nothing.<\/p>\n
Two dissenting judges on the case wrote important remarks to
\nthe effect that the nature of the State Budget Law was different
\nfrom ordinary laws, in that it served a budgetary function of the
\nHouse of Representative rather than a legislative function, and
\nthat the State Budget Law was only normally valid for a one-year
\nperiod, unlike normal laws that stand until they are revoked.
\nNonetheless, to this proposition one can argue that just because
\nthe State Budget Law has a different character from other \"normal
\nlaws\" does not prevent it from being exposed to a
\nconstitutionality test.<\/p>\n
In the end, a majority of Constitutional Court judges agreed
\nthat Article 31 was drafted to obligate the 20 percent allocation
\nof the budget to education, and that in the absence of such
\nprovision, the 2005 budget was, in fact, in violation of the
\nConstitution. But the court was subsequently faced with a dilemma
\nin that if it accepted the submissions, then the state would be
\nexposed to economic chaos.<\/p>\n
In its final decision, the court judged that the applicant did
\nhave legal standing and constitutional grounds to submit their
\npetitions. However, the court considered that if the case was
\nadmitted and further adjudicated, it would lead to a financial
\ndisaster to the state, which would create legal uncertainties.
\nWith the aforementioned reasons, the court creatively declared
\nthe case \"inadmissible\".<\/p>\n
Declaring the case \"inadmissible\" was indeed the most risk-
\nfree (and smartest) approach the court could have come up with.
\nIt does, however, pose important questions about the future
\nprocess of Constitutional interpretation.<\/p>\n
The first question is whether the consideration to declare the
\ncase inadmissible due to its inclination toward economic chaos
\nconstituted solid grounds in legal interpretation. Political
\nmatters, political questions and political implications of court
\ndecisions should not have been considered.<\/p>\n
And the second question is whether the court has, in fact, the
\nauthority to declare such a case to be inadmissible under Law No.
\n24 Year 2003 on the Constitutional Court.<\/p>\n
Can a court -- any court -- decide to declare a case
\n\"inadmissible\" on the grounds that if adjudicated and ruled, the
\noutcome would be catastrophic to society? The answer to this
\nquestion should be \"no\". Whether a ruling of a case triggers a
\nriot or not, for example, should not be the concern of the court.
\nThe function of the court should be limited to interpret, apply
\nand uphold the law.<\/p>\n
The role of the courts in upholding justice at any expense
\nstems from Latin adagium fiat justitia ruat caelum (Let justice
\nbe done though the heavens fall). In seems that in the case of
\nIndonesia, the adagium must be rewritten to \"uphold the law, but
\ndon't let the sky fall in\".<\/p>\n
This is a bad precedent in law enforcement as the
\nmaterialization of formal justice could be obstructed by mere
\npolitical considerations. By the same token, with the rewritten
\nadagium above for example, judges could suspend or revoke a
\ncitizen's constitutional right to practice their religion simply
\nbecause their practices triggered the \"anger\" of people of other
\nreligions, if it was deemed to have the potential to lead to
\nsocial chaos.<\/p>\n
The writer (movanet@yahoo.com) is a lawyer and lecturer.<\/p>", "url": "https:\/\/jawawa.id\/newsitem\/the-constitutional-court-dont-let-the-sky-fall-in-1447893297", "image": "" }, "sponsor": "Okusi Associates", "sponsor_url": "https:\/\/okusiassociates.com" }