Regulations must reflect annulled articles: Expert
Muninggar Sri Saraswati, Jakarta
A legal observer has urged the Constitutional Court to order state institutions to follow up its ruling annulling contentious articles of law by scrapping regulations involving such articles.
"They should notify other institutions to follow up their ruling. It would be a waste of time and energy if people must file for judicial review with the court or the Supreme Court to comply with the ruling," Benny K. Harman said after a discussion here on Friday.
He was referring to the Court's ruling annulling an article of Law No. 12/2003 on legislative election that bans former members of the now-defunct Indonesia Communist Party (PKI) from joining the election.
There are some 250 regulations, in the form of either laws, presidential decrees, government decrees and others, that still discriminate against former PKI members and their descendants.
"The court should take an active role, otherwise their rulings will not be effective," Benny said.
Court chief Jimly Asshidiqie told The Jakarta Post that his office has always notified other institutions about the rulings of the Constitutional Court.
"The state gazette records our rulings and it is available to the public. Other institutions use our rulings as a benchmark to issue regulations," he said.
However, he said it was not possible for other institutions, including the House of Representatives, to automatically annul certain articles based on the court's ruling.
"It is on a case-by-case basis. An annulment of certain articles in a law cannot be used to annul other laws and regulations in general," he said.
Jimly referred to Germany, a state that bans former Nazis from becoming ministers although they are allowed to enter the parliament.
"There are different legal arguments for each law. To be a legislator requires certain conditions that are different from that of public officials," he said.
A number of plaintiffs are now waiting for the court's ruling on their request to annul several articles of Law No. 23/2003 on presidential election banning former members of the PKI to run for public office.
In February, the court took a historic decision to annul an article in Law No. 12/2003, paving the way for former PKI members to become legislative candidates. The amendment to the law has been seen as more progressive than Election Law No. 3/1999, which only restored former PKI members' rights to vote.
Some parties have suggested that the government scrap all discriminatory regulations against them after the issuance of the law.
Hundreds of thousands of people are believed to have been killed after the 1965 coup blamed on the communists. Millions of suspected PKI members were sent to prison without trial.