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.