Constitutional Court's compromise approach criticized

Muninggar Sri Saraswati, The Jakarta Post, Jakarta

The two-year-old Constitutional Court deserves credit for its efforts to ensure transparency, including publishing its verdicts online, including dissenting opinions, shortly after they are handed down.

This effort, which makes use of new technology, helps to prevent backroom deals -- a practice often associated with Indonesia's judiciary, which struggles with the perception that it is riddled with corruption.

The Constitutional Court also does everything it can to follow all its practical procedures and stick to its schedule of cases, which are also part of its efforts to avoid collusion.

However, a seasoned constitutional law expert said the Constitutional Court revealed its true nature in its second year of existence.

By true nature, he meant the court often issued "compromise" verdicts by considering nonlegal matters such as political and economic issues, which could set a bad precedent in law enforcement by allowing formal justice to be determined or shaped by political considerations.

This can been seen in several of the verdicts issued by the court in 2005.

A group of people filed in October a judicial review of the 2005 State Budget Law on the grounds that the budget violated article 31, paragraph 4 of the Constitution.

The article says: "The state (shall) give priority to the education budget (by allocating) at least 20 percent of the state as well as regional budgets to meet the requirements of implementing national education."

Although the court agreed the 2005 state budget (which allocated just over 9 percent of total spending for the education sector) was in violation of the Constitution, it ruled that the case was "inadmissible". The justices argued that if it accepted the case, the state would be exposed to economic chaos.

Another case was related to the review of the controversial Water Resources Law. Although the court rejected the case, it ordered the government to issue ancillary regulations for the legislation, in line with the court's interpretation of the law as set out in its ruling.

The court also required the government to ensure affordable public access to water resources, otherwise the plaintiffs would be allowed to file another judicial review of the legislation -- something that would be unprecedented in the court's history.

Some constitutional law experts have commented that the Constitutional Court too often takes into consideration the political, social and economical implications of its decisions.

The Constitutional Court must set aside such considerations in upholding justice, particularly since its rulings are final and binding, they say. The function of the court should be limited to interpreting, applying and upholding the law.

"It seems they want to play it safe," one court observer said.

But playing it safe is not the job of the Constitutional Court. It has the authority to declare whether an article or a law violates the Constitution.

The Constitutional Court is authorized by the state to review executive and legislative steps in making laws. Dubbed the guardian of the Constitution, the Constitutional Court should never compromise in an attempt to prevent any negative impact from its verdicts.

Whether or not political power influences the verdicts of the Constitutional Court, only the justices and God know.

What is known for sure is that the nine Constitutional Court justices were selected and approved by the House of Representatives, which represents political power.

Three of the nine justice were nominated by the government, three others by the House and the rest by the Supreme Court.

However, it is nearly impossible to prevent the justices from taking into consideration issues other than purely legal ones when reaching a verdict, since they are only human.

The justices' integrity, consequently, has become a major point of public consideration when talking about the court's credibility.

Indeed, the Constitution is a broad issue and it is the justices' main task is to interpret it.

The interpretation of the Constitution, therefore, lies in the hands of the justices. This interpretation may change in line with changes in the justices as well as conditions in the country.

"The Constitution is not a holy book, neither is its interpretation. It is dynamic, in accordance with developments in society," Constitutional Court chief Jimly Asshidiqie once said.

However, some people link the compromise approach with the ignorance of the government and other parties in implementing the court's rulings -- which are also laws.

No wonder the Constitutional Court sent a letter to the government in September, warning that its decision to raise fuel prices by an average of 126 percent in October had been made on a shaky legal basis since it failed to cite a previous ruling by the court.

Presidential Decree No. 55/2005 on the new retail prices for oil-based fuels used the Oil and Gas Industry Law as a legal basis. But the court late last year ruled the government had to revise the law because a number of its provisions violated the Constitution.

The government initially ignored the court's warning letter, although it later revised the decree on the fuel price increases.

It is true courts generally must be passive, but for the Constitutional Court to uphold the Constitution it has to follow the principle of judicial activism. This enables justices to actively seek the truth through judicial reviews that reflect developments in society.

Irman A. Putrasidin, an assistant to a Constitutional Court justice, said Indonesia was not yet familiar with the idea of constitutional supremacy.

"It takes time for state institutions to comply with Constitutional Court rulings because Indonesia is still in a transitional period," he said.