The only thing apparently standing in Jimly's way to a second term on the Constitutional Court is personal political ambition! The previous months have often seen Jimly in the public eye at political events. Whether this is openly courting support for a second term on the Constitutional Court or courting support for a bigger play on the political stage such as the Vice-Presidential nominee on a favourable ticket remains to be seen. But there seems little doubt that the Chief Justice (or as he prefers the President of the Court) is angling for much bigger fish!
There is considerable parliamentary support for the current Chief Justice and in this sense he would be an unbackable favourite to be one of the three nominations that the parliament can make. The other six nominations are split three a piece between the Supreme Court and the Government (red: President).
The thing about Jimly is that he is consistent in his decision making and that provides a degree of certainty in the legal process. It is pretty much a case of you know what you will get decision wise. I certainly do not always see eye-to-eye on the interpretation of the Constitution aspects nor the manner in which retro-activity has been defined and now enshrined in Indonesian law (I know who cares, he is the Constitutional Law Professor and expert and you are but a mere lawyer -- yep, but an opinionated lawyer!). But to the Court's credit it has been consistent on this front.
Nevertheless, the danger is always going to be judicial ego, the idea of overstepping the mark from judicial review and interpretation to that of law makers. I have recently had a short but interesting "to and fro" with the Chief Justice on this point. The Court views itself as the ultimate guardian and interpreter of the Constitution and in this respect sees itself as a balancing and where necessary a correcting force to all those less educated souls on constitutional law.
My personal view is that the Chief Justice should throw his hat into the ring for another round. If he is serious about leaving a legacy, then two-terms on the Court should pretty much enshrine any legacy he wants to leave in the judicial sense. But if the call of public service is too great, and I am sure that it is, he will more than likely be opting to try and kick start a political career where any legacy he might leave could be much broader and far-reaching than any legacy he might leave at the Constitutional Court...
Time will tell!
Showing posts with label Jimly Asshiddiqie. Show all posts
Showing posts with label Jimly Asshiddiqie. Show all posts
26 February 2008
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!
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!
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