Part 1 of 2: Indonesian judiciary in constitutional crisis
Part 1 of 2: Indonesian judiciary in constitutional crisis
Tim Lindsey and Simon Butt, Melbourne, Australia
The Constitutional Court's decision July 23 in the Masykur
Abdul Kadir case may be one of the most important in Indonesian
legal history.
In Kadir's case, the court exercised its powers of
constitutional review to strike down Law No. 16/2003 because it
conflicted with a new provision in Indonesia's recently amended
Constitution. This was one of the first times this power has been
exercised by an Indonesian court.
This watershed decision is one of the better argued and
reasoned judgments ever handed down by an Indonesian court.
It could well be used as a template for legal analysis and
decision-making by other Indonesian judges. It is also
significant because the provision it upheld forms part of the new
and impressive Bill of Rights in Chapter XA of the Constitution.
But the most important aspect of the decision is that the
controversy it has generated now threatens to destroy the court
itself -- and perhaps even the fragile negara hukum (law state)
reformers have been building in the shadow of the New Order.
Kadir's lawyers claimed that their client had been
investigated, charged, prosecuted, convicted and imprisoned for
15 years for his role in the Bali bombings of October 2002 under
an unconstitutional law: No. 16/2003. This is because this Law
did not exist at the time of the blasts, being introduced as
Interim Law (Perpu) No. 2/2002 only week or so later.
Law No 16 attempted to authorize police, prosecutors and
judges to use Indonesia's Anti-terrorism Law (Interim Law No 1 of
2002 / Law No 1/2003) to pursue the Bali bombers, even though the
Anti-terrorism Law did not exist when the bombings took place.
Kadir's lawyers argued that Article 28I(1) of the Indonesian
Constitution provides citizens with a right to not be prosecuted
under retrospective laws and sought a declaration from the court
that the Law was invalid. By the narrowest of margins, 5 out of 9
judges agreed that the Law was unconstitutional.
The Indonesian and international legal community expected
that Kadir and other bombers prosecuted and convicted under the
law would now be released.
The assumption was that because Law No. 16/2003 was declared
unconstitutional and of no binding force by the court, it had
never been constitutional and had never had binding force.
However, the process under which the unconstitutionally-convicted
bombers could enforce the judgment in their favor is unclear and
untested. And, unfortunately, both the Constitution and Law No.
24/2003 on the Constitutional Court are silent on this critical
issue.
The Bali bombers' lawyers have cited Article 263(2)(a) of the
Criminal Code, claiming that it enables many of their clients to
lodge a Supreme Court application for 'judicial review'
(Peninjauan Kembali or PK) against their sentences, using the
Kadir decision and the resulting invalidity of the Law as a
novum.
A 'novum' is a new circumstance that, if known at the time of
trial, would have resulted in acquittal, dismissal or a lighter
sentence or led to rejection of the prosecutor's indictment.
Others claimed that the bombers could simply lodge 'appeals'
against their convictions in the general courts. No one is
certain if these strategies will work.
The result has been widespread legal confusion, even panic.
We believe the way in which it is resolved could be a watershed
for judicial power in Indonesia or the greatest set-back in
Indonesia's recent judicial and constitutional history
Apparently fearing that the convictions would be lost, Justice
Minister Yusril Ihza Mahendra and Constitutional Court's Chief
Justice Prof. Jimly Asshiddiqie issued their own interpretation
of the decision by press release. They claim that the bombers
must remain in jail because Constitutional Court decisions cannot
operate retrospectively. In other words, the Kadir decision,
although binding, only prevents future investigations,
prosecutions and convictions under Law No 16/2003. They claim it
cannot affect convictions already obtained.
The Chief Justice of the Supreme Court, Prof. Bagir Manan, has
also sought to block the bombers' release, commenting publicly
that the Constitutional Court decisions were not, in his view, a
novum and couldn't be relied on for a PK, although this is not
settled law.
The way these senior judges have made their views known is of
grave concern. The fact that Asshiddiqie and the justice
minister issued statements at around the same time and conveyed
the same view gives the impression that they collaborated --
although this might not have been the case -- and this, of
course, raises questions about judicial independence.
Likewise, any judicial analysis of the complex implications of
the Kadir decision should be restricted to a formal court
decision, where it can be dealt with by a full panel of justices.
A single judge talking to the press should not attempt to
unilaterally reinterpret a binding judicial decision of a
superior court, particularly a case in which the court was split.
It is highly significant here that many of the bombers were
also convicted under Emergency Law No 12 of 1951, which prohibits
possession of weapons and explosives and carries the death
penalty and significant prison terms. This should mean that even
if their convictions under the Anti-terrorism law fail, their
prison sentences should stand anyway, by virtue of their
convictions under the 1951 Law. Others who were not charged under
this Law can probably be recharged under other criminal laws that
also existed at the time of the bombing.
These statements are, therefore, probably entirely unnecessary
-- the Bali bombers and accomplices will probably remain in jail
regardless. Their sole effect may be to seriously damage
Indonesia's emerging new Rechtsstaat (law state)
It has been 30 years since Soeharto introduced Law No.14/1970,
which made it clear that the New Order would deny the courts the
power to review the constitutionality of statutes. Giving courts
this fundamental power has since been a key demand of lawyers
and, in particular, of post-1998 reformasi advocates. They
understand well that it is a basic component of Trias Politika
(separation of powers): If the courts cannot conduct
constitutional review, then there is little to prevent Indonesian
governments from persistently enacting laws in breach of the
Constitution, as happened regularly under Soeharto. This is
because, according to Asshiddiqie and Mahendra, wrongful acts
performed by the state under such laws can never be undone, even
if the unconstitutional laws that authorize them are later struck
down.
Associate Professor Tim Lindsey is Director, and Simon Butt is
a PhD student, in the Asian Law Centre at the University of
Melbourne.