Removing a Stumbling Block

The Constitutional Court has revoked an article preventing any judicial review of laws issued before 1999. Some oppose it, many others welcome it.

THE chance to question laws in the Constitutional Court is now indeed wide open. It results from the annulment of Article 50 of Law No. 24/2003 on the Constitutional Court, which regulates the institution's authority to review laws. In its session on April 12, the Constitutional Court declared the article in opposition to the 1945 Constitution. With this decision, all laws are automatically liable to judicial reviews, including that concerning capital punishment.

Those that will apparently move soon are several non-governmental organizations for human rights like the Commission for Missing Persons and Victims of Violence (Kontras), Imparsial, the Indonesian Legal Aid Foundation, the Jakarta Legal Aid Institute, and the Human Rights Study and Advocacy Institute. They are preparing a judicial review of a number of laws stipulating the death sentence. "The entire legislation containing capital punishment will be on our review list," said Kontras Working Body Coordinator Usman Hamid on Wednesday.

Kontras has listed at least 11 laws and regulations carrying punishment by death. Among those are Emergency Law No. 12/1951 on firearms, Law No. 5/1997 on psychotropics, Law No. 22/1997 on narcotics and Law No. 15/2003 on the eradication of crime of terrorism.

The plan to question the laws was in fact already decided by Kontras and the rights campaigning NGOs last year. One of the channels used was the request for a judicial review. But the expectation hit a stumbling block.

Article 50 was just the block. This article stipulates that the laws appropriate for submission as documents to be reviewed are those promulgated after the amendment of the 1945 Constitution.

With the revocation of this article, the laws subject to reviews are not only products of 1999 and subsequent years. "They cover laws produced under the Provisional Constitution and the Federal Constitution of the Republic of Indonesia," said Constitutional Court Chairman Jimly Asshiddiqie.

The annulment itself originated in the judicial review applied for by Chairmen of the Chamber of Commerce and Industry for Small and Medium-scale Enterprises (Kadin UKM), Elias L. Tobing and R.D.H. Naba Gunawan. They questioned Article 4 of Law No. 1/1987 on the Chamber of Commerce and Industry (Kadin). Article 4 was considered in violation of their constitutional right for preventing their establishment of Kadin UKM. It is because Law No. 1/1987 only recognizes one Indonesian chamber of commerce, which is Kadin.

This action, however, was stalled by Article 50. Law No. 1/1987 was issued before 1999 and the Constitutional Court was not authorized to judge. Elias then requested a judicial review of Article 50. This suit against Article 50 was accepted, but the other against Article 4 of Law No. 1/1987 was rejected. Yet the cancellation of Article 50 was not unanimously decided. Three justices, H.M. Laica Marzuki, H. Achmad Roestandi and H.A.S. Natabaya, conveyed their dissenting opinion.

According to Jimly, his institution actually went beyond its authority in 2003. At that time, he said, Machri Hendra, the judge of Padang's district court, filed his judicial review application against Law No. 14/1985 on the Supreme Court. For various reasons, the Constitutional Court put aside Article 50 and dealt with the case. Machri lost in the legal battle. "The public was not much aware of this breakthrough, probably because it's a new institution and its decisions drew less attention," he added.

The removal of Article 50 is likely to make the court under Jimly face an influx of suits for judicial reviews. This is the apprehension of Zain Badjeber, former chairman of the House of Representatives special committee for the constitutional court bill. According to Zain, Article 50 was the government's proposal later accepted by legislators. "The article was created just for the purpose of avoiding piles of cases in the Constitutional Court," he said. "I'm afraid this court will later be overwhelmed by requests as is now experienced by the Supreme Court," added Zain.

Jimly acknowledged that the annulment of Article 50 had reaped criticisms everywhere. "One of them described us as strengthening ourselves," he revealed. But in his view, his court had no choice. "Otherwise, some circles would be referring to the former constitution, others the new constitution, leading to a double standard," he indicated. As he observed, the amended constitution is virtually a new one. "Because out of its 199 paragraphs, 174 are new ones," he pointed out.

To the lecturer of constitutional law at Andalas University, Padang, Saldi Isra, the ridding of Article 50 is a correct decision. "In this way, the process of constitutional reform can be carried on," said Saldi. Only by this means, according to Saldi, can all legal products evaluated as rights infringements and justice inconsistencies be subjected to judicial reviews.

Besides the laws connected with capital punishment, there are in fact several others so far seen as being opposed to the spirit of the constitution. Nursjahbani Katjasungkana, a member of the House Commission III, mentioned Law No. 1/1974 on marriage. "Some articles of the law are against human rights," said Nursjahbani. Actually, noted Nursjahbani, the 1945 Constitution respects human rights. She cited Article 31 in this law, which defines the role of a husband as head of family and that of a wife as domestic woman, or Article 34, which stipulates that a husband provides everything needed in a household while a wife takes care of household affairs. "It's not in line with the spirit of human rights," she maintained.

Apart from the marriage law, Law No. 62/1958 on Indonesian citizenship, in the opinion of Nursjahbani, also needs a prompt review. This law requires that children of an Indonesian woman marrying a foreign citizen follow the citizenship of their father. "The law allows no equal right to the mother in terms of her children's citizenship and is opposed to the constitution," she asserted.

Among woman activists, said Nursjahbani, the two laws had been a subject of discussion for a long time. She disclosed that one of the aims of setting up the APIK Legal Aid Institute was to handle cases arising from such laws. "With the Constitution Court's decision, our chance of having both laws reviewed is now open," she added.

But in the eyes of Coordinator of the National Committee for Legal Reform (KRHN), Firmansyah Arifin, the absence of Article 50 will not readily cause the Constitutional Court to be flooded with cases. KRHN was among the agencies drawing up the "blueprint" of the Constitutional Court. "Though no trial charges are imposed, the constitutional right testing mechanism will become a means of selection of cases to be taken to this court," he said. Therefore, Firmansyah guaranteed that no "inflation of cases" would affect the court. "I believe the efficiency and effectiveness of this institution," he assured.

Abdul Manan



Application- Through the Case Administration Division- Written in Indonesian- Signed by the applicant- Submitted 12-fold- Specifying the type of case - Systematics. 1. Identities and legal standing. 2. Posita (reasons for application). 3. Petitum (Request that the law being questioned be denied permanent legal force)- Supporting evidence

Registration- Through the Case Administration Division- Document examination- Registration
Court trial schedule- First session is determined 14 working days after registration- Notification is sent to the applicant - Trial is announced to society

Preliminary examination- Before dealing with the case, the justice scrutinizes documents to check their completeness and clarity.- Counsel is given to complete and improve application papers- Documents and material must be complete in 14 days

Court trial- Open to the public- Examining the request and evidence

Decision- Decision making is based on consultation or consensus- Majority votes are adopted if consensus fails- Each justice submits written opinion or consideration

TEMPO, MAY 09, 2005-035/P. 40 Heading Law


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