25 December 2007

Indonesia's Man of the Year

Jimly Asshiddiqie...

An interesting choice to say the least but not surprising when the givers of this award, Globe Asia, characterize the recipient as Indonesia's most powerful judge and the leaving of a legacy that will influence and impact on coming generations of Indonesians! I am sure there will be some arguments concerning the characterization as Indonesia's most powerful judge but nonetheless it is impossible to downplay the role the Constitutional Court has had over the past four years.

The influence will be longer lasting than the debate about who is the most powerful judge in the country. The legacy will be mixed and to suggest it will be anything else but is to misrepresent what the Constitutional Court has achieved. Many of its decisions are inconsistent, and the principles that it evokes often counter to the Constitution itself, particularly in respect of legal standing.

The Constitutional Court is often lauded for being above politics and religion and race and all those other nasties that Indonesians dread, but some decisions arguably suggest otherwise. The decision in the terrorism case is a case in point. The Constitutional Court rejected partisan politics and decided on the principles contained in the Constitution, of that there is no criticism or debate, retroactive application of criminal laws in Indonesian is clearly in breach of the Constitution.

But the Constitutional Court then bowed to political pressures by stating that the decision comes into effect on the date it was handed down. This had the ludicrous outcome that people were convicted under an unconstitutional law but their convictions remain valid. The fact that the Bali Bombers would have been released was an unpleasant outcome to be sure, and the rush by the then Megawati government for convictions should see both her and her government held accountable for the error. So, you now have a situation where you have individuals under the sentence of death based on convictions garnered under a law that was unconstitutional at the time.

The argument as to whether Amrozi, Samudera, and Ghufron deserve to die for their crimes is a different argument. Personally, I would rather they did not get their wish to be martyrs but rather rotted in jail for the rest of their natural lives.

Another notable decision was the Constitutional Court's decision to invalidate Article 50 of Law No. 24 of 2003 on the Constitutional Court. It is an interesting proposition that the Constitutional Court can invalidate parts of its own constituting document in order to expand its own power and influence. In effect the Constitutional Court ruled that parliament got it wrong in drafting and enacting the legislation.

Yet, the parliamentary record is clear that legislators intended to restrict the jurisdiction of the Court to constitutional issues going forward. The Constitutional Court was not happy with this and invited a contentious case to be presented and then somewhat cynically dismissed the merits of the case but used it to repeal Article 50.

This, however, fits in with the Asshiddiqie constitutional philosophy that the Constitution cannot be interpreted on the words alone but it must be interpreted based on the 'spirit' of the document. This is wholly subjective and means that the words of the Constitution can be ignored where it does not fit the spirit that the justices want to evoke.

Yet, it must be said that under the stewardship of Asshiddiqie the Constitutional Court has served it up to all comers and annoyed just about everyone. This must be interpreted as the Court must be getting some things right. The decision on whether the former members of the PKI and their families were allowed to vote or be elected at general elections is a good one; they are and they deserve that right to be respected.

The decision that legal aid can be provided by people other than advocates was destined to annoy advocates, and it did. It is only fair to give credit where credit is due. In this case credit is due and it is given.

This piece though was written in terms of whether the Chief Justice of the Constitutional Court is worthy of the title of man of the year...I am not choosing or presenting this honour; so, to each their own!

No comments: