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.