The Constitutional Court: Don't let the sky fall in

The Constitutional Court: Don't let the sky fall in

Mohamad Mova Al 'Afghani, Jakarta

"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." (Article 31 paragraph 4, 1945 Constitution, 4th
Amendment)

Clear legal text such as the above can often be subject to
multiple interpretations by scholars, judges and politicians.
Faced with difficulties in managing the budget, the government
has always advocated that the text should read "the state shall
apply sustainable increases in the education budget of up to 20
percent". However, there are also scholars and judges who
consider that the text should read as is, and that 20 percent is
actually the minimum allocation for the education budget.

When a group of people submitted a judicial review of the
State Budget Law to the Constitutional Court last May, the court
was faced with a dilemma. The state budget is, after all, a law,
and as a law, it could be invalidated by the court. The problem
is, however, if the State Budget Law was invalidated, the state
would have to refer to the budget of the previous year; something
that would lead to economic chaos.

Thus, there are two options that could be considered: to
declare the law constitutional, or to reject the applicant's
legal standing before the court.

The fourth amendment of the Constitution itself was poorly
drafted. Inserting a very technical provision in a budgetary
article was not a wise thing to do. Economic conditions can vary
from year to year and each demand a certain unique treatment.
Inserting a technical provision poses the danger that if the
government fails to fulfill the provision, it would violate the
Constitution. Nevertheless, the fourth amendment has been
ratified and become the law of the land, so everyone has to
adhere to it.

The government and a minority of judges at the court
considered the State Budget Law and the National Education Law
already in line with the Constitution. They were of the opinion
that a "gradual increase in the education budget" was compatible
with the Constitution.

Their argument, however, was not based on strong rationale.

First, when drafters put figures in a contract or a law, they
always intend to mean either to indicate the figures per se, to
indicate the uppermost ceiling of a condition, or to prescribe a
minimum requirement. These are often clarified with the phrases
"maximum", "at the latest" or, in the case of Article 31, "at
least".

Second, there are probably only four possible legal norms
recognized in the Indonesian legal system; that is, to prohibit,
to allow, to encourage and to obligate. Article 31 was not
intended to allow the government to prescribe their own
educational budget percentage, and neither was it intended to
simply encourage them to gradually increase the budget allocation
for education.

Third, the provision is there because it was intended to
signify a specific meaning. Interpretation must therefore be
strict, focused, but reasonable. If a Constitution can mean
anything, then it means nothing.

Two dissenting judges on the case wrote important remarks to
the effect that the nature of the State Budget Law was different
from ordinary laws, in that it served a budgetary function of the
House of Representative rather than a legislative function, and
that the State Budget Law was only normally valid for a one-year
period, unlike normal laws that stand until they are revoked.
Nonetheless, to this proposition one can argue that just because
the State Budget Law has a different character from other "normal
laws" does not prevent it from being exposed to a
constitutionality test.

In the end, a majority of Constitutional Court judges agreed
that Article 31 was drafted to obligate the 20 percent allocation
of the budget to education, and that in the absence of such
provision, the 2005 budget was, in fact, in violation of the
Constitution. But the court was subsequently faced with a dilemma
in that if it accepted the submissions, then the state would be
exposed to economic chaos.

In its final decision, the court judged that the applicant did
have legal standing and constitutional grounds to submit their
petitions. However, the court considered that if the case was
admitted and further adjudicated, it would lead to a financial
disaster to the state, which would create legal uncertainties.
With the aforementioned reasons, the court creatively declared
the case "inadmissible".

Declaring the case "inadmissible" was indeed the most risk-
free (and smartest) approach the court could have come up with.
It does, however, pose important questions about the future
process of Constitutional interpretation.

The first question is whether the consideration to declare the
case inadmissible due to its inclination toward economic chaos
constituted solid grounds in legal interpretation. Political
matters, political questions and political implications of court
decisions should not have been considered.

And the second question is whether the court has, in fact, the
authority to declare such a case to be inadmissible under Law No.
24 Year 2003 on the Constitutional Court.

Can a court -- any court -- decide to declare a case
"inadmissible" on the grounds that if adjudicated and ruled, the
outcome would be catastrophic to society? The answer to this
question should be "no". Whether a ruling of a case triggers a
riot or not, for example, should not be the concern of the court.
The function of the court should be limited to interpret, apply
and uphold the law.

The role of the courts in upholding justice at any expense
stems from Latin adagium fiat justitia ruat caelum (Let justice
be done though the heavens fall). In seems that in the case of
Indonesia, the adagium must be rewritten to "uphold the law, but
don't let the sky fall in".

This is a bad precedent in law enforcement as the
materialization of formal justice could be obstructed by mere
political considerations. By the same token, with the rewritten
adagium above for example, judges could suspend or revoke a
citizen's constitutional right to practice their religion simply
because their practices triggered the "anger" of people of other
religions, if it was deemed to have the potential to lead to
social chaos.

The writer (movanet@yahoo.com) is a lawyer and lecturer.