Constitutional Court needed to uphold laws

Constitutional Court needed to uphold laws

Controversy around permits to hold public gatherings has
resurfaced. Legal expert Frans H. Winarta offers his view on the
issue.

JAKARTA (JP): A public debate on the government's rulings that
stipulates the requirement of a permit for a gathering is going
on. The government has applied the rulings based on its
interpretation of Article 510 of the Criminal Code, which
requires permits for parades and festivities. The article, which
is actually part of our Dutch-inherited criminal code, has been
interpreted by the government as applicable to scientific
seminars, academic forums, discussions and conferences as well.

The debate, focusing on whether or not it is appropriate to
apply the article as part of the government's permit policy, is
joined in by legal experts, the police, the National Commission
on Human Rights, members of the House of Representatives and
government officials.

The Coordinating Minister for Political Affairs and Security
Soesilo Soedarman is planning to set up a special team to study
the controversial issue. Rudini, the former minister of home
affairs, is of the opinion that the policy of requiring permits
is no longer relevant because Indonesia has been enjoying a
highly stable and secure condition.

On the other hand, Minister of Home Affairs Moch. Yogie S.M.
believes that the policy is still relevant when it comes to
gatherings such as seminars, although a notification to the
authorities, rather than a permit, is sufficient.

As a matter of fact, the government's initiative, in studying
the policy of requiring permits on their own, may potentially
lead to more complications, because the results are likely to be
very subjective. Therefore, it seems that what we need is an
independent body capable of deliberating and determining whether
the policy is still relevant and whether Article 510 of the
Criminal Code is indeed constitutional or not. The most
appropriate independent body for these purposes would be a
Constitutional Court.

At any rate, a Constitutional Court would be better suited to
examine the constitutionality of the policy of requiring permits
by means of the motion of impeachment in the House, or by means
of a Constitutional Petition from the government or individuals.
In the case of Article 510 in particular, the government itself
can request the Court to decide on its constitutionality.

It seems that we are in the midst of a contradiction. On the
one hand, the promise and progress of openness and
democratization are increasingly emphasized. On the other hand,
the government itself, which took the initiative that started the
process, seems to strongly adhere to the policy of requiring
permits -- a policy that is basically anti-democracy. It is a
pity that the democratization bandwagon should be slowed down by
potholes in the form of the permit requiring policy.

It is necessary to study the policy of requiring permits in
light of the right to associate and the right to express one's
opinions, as guaranteed by our Constitution.

More strangely, this policy of requiring permits has not been
consistently applied. In fact, it has been put into effect
discriminately. Two similar types of organization, holding
identical kinds of gathering, may obtain different results when
applying for the same permit. We have also had cases in which the
threat of arrest has been used, or a gathering has been disbanded
by force.

If we insist on applying this policy, then the international
world will have difficulty understanding our real stance on
democracy.

On the one hand, our high-ranking officials keep reiterating
the fact that in Indonesia we have achieved and maintained
unquestionable stability and security. But, on the other hand,
there is still a strong feeling of fear in regards to opposition
and all its criticisms -- regardless of the fact that the
government has never recognized the existence of opposition
parties in this country. In addition, our experience has
repeatedly demonstrated that criticisms can be constructive in
nature, and therefore, highly useful to the government.

The debate surrounding the permit policy would not have to go
on and on if we have a Constitutional Court, that can serve as an
impartial judge. This court can be expected to give us a fair and
just ruling.

It is perfectly relevant to talk about the formation of a
Constitutional Court, particularly because we still have plenty
of legal products from the colonial era that have to be replaced
because they are no longer suitable and no longer conform to the
public feeling of justice.

A number of legal experts have expressed their opinion
concerning several articles in our Criminal Code. Some, for
example, believe that Articles 154 to 157 of the Criminal Code --
more popularly known as "hate-sowing articles" -- are rather
controversial, since they tend to be repressive and anti-
democracy.

Furthermore, our Anti-subversive Act has been debated among
our legal experts and practitioners for a long time, without
satisfactory solution.

These are just some of the reason we need a Constitutional
Court, which could play an active role in reviewing all legal
products, including those originating from the Dutch colonial era
and those created after our independence.

The Court can conduct reviews based on requests made by the
government, the House, individuals or ordinary courts. The
Constitutional Court can be set up as part of our Supreme Court,
or it can be established as a completely independent body, as in
other countries, in which it is ruled by the Constitution itself.

The writer is an advocate based in Jakarta.