Const. Law

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October 1, 2010

Resensi Buku: “The Constitutional Law of Indonesia”

Posted by Pan Mohamad Faiz under Const. Law, Indonesian Law, Konstitusi, Resensi
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HTN INDONESIA DALAM BAHASA INTERNASIONAL

Judul Buku: The Constitutional Law of Indonesia: A Comprehensive Overview

Bahasa: Inggris

Halaman: li + 751

Tahun: 2009

Penulis: Jimly Asshiddiqie

Penerbit: Sweet & Maxwell Asia   Distributor Indonesia: PT Ina Publikatama

Peresensi: Pan Mohamad Faiz, Staf Ketua Mahkamah Konstitusi

Dimuat di Media: Majalah Konstitusi Edisi Agutus 2010

Bergulirnya reformasi konstitusi yang dimulai sejak 1999 sampai dengan 2002 telah mengubah kehidupan bangsa Indonesia secara fundamental. Konfigurasi tata negara yang berubah dan kian berkembang telah pula melahirkan tumbuh suburnya beragam teori dan praktik sistem ketatanegaraan terbaru. Tidak sulit sebenarnya untuk menemukan hal-hal tersebut. Apabila kita hunting ke toko buku maka puluhan literatur dan buku seputar hukum tata negara akan nampak berderet memenuhi rak-rak kategori bidang hukum. Jikalau ingin mencari teori yang lebih spesifik lagi maka perpustakaan hukum menjadi alternatif tempat yang harus dituju.

Artinya, banyak sudah literatur hukum tata negara yang dengan mudah dapat kita temukan sekarang ini. Namun di antara varian buku hukum tata negara itu, sepertinya baru ada satu buku teks Hukum Tata Negara yang diterbitkan secara komprehensif dengan menggunakan medium bahasa Inggris, yaitu “The Constitutional Law of Indonesia” karya Prof. Dr. Jimly Asshiddiqie, S.H.

(more…)

 

April 9, 2008

Human Rights Protection and Constitutional Review in Indonesia

Posted by Pan Mohamad Faiz under Const. Complaint, Const. Law, Const. Review, HAM, Sust. Development
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HUMAN RIGHTS PROTECTION AND CONSTITUTIONAL REVIEW:
A Basic Foundation of Sustainable Development in Indonesia
By:
Pan Mohamad Faiz *
(The paper has been presented at Indonesian Students Scientific Meeting 2008
13-15 May 2008 in Delft, The Netherlands and the Presenter awarded as the Best Oralist Presentation (Lecture) at the Conference)

Abstract:

Many people strongly believe that rising the challenge of sustainable development can help the country go forward in a better direction. One of the best approaches for promoting the sustainable development of Indonesia can be viewed from the perspective of human rights protection of the people. Basically, sustainable development encompasses three pillars based on environmental, economic, and social values that are interdependent and that mutually reinforce human rights. Moreover between sustainable development and human rights there is an inseparable relationship and a respect for human rights that has been recognized as a prerequisite for development. In this context, the current paper seeks to present an integrated conception and the relationship between these two formations. The paper also presents the measures of human rights protection, particularly constitutional review mechanism before the Court as the newest instrument established after the amendment of 1945 Constitution.

Index Term: Constitutional Complaint, Constitutional Review, Human Rights, Indonesia, Sustainable Development
(more…)

 

November 1, 2007

Indonesia, Constitution and Holy Book

Posted by Pan Mohamad Faiz under Const. Law, Constitution, Freedom of religion, Judicial Review
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CONSTITUTION OR HOLY BOOK?
By: Pan Mohamad Faiz, New Delhi

One of the important developments in our constitutional structure was the establishment of the Constitutional Court as a response to the demand for a strengthening of the checks and balances in the system of state administration.The improvement in the constitutional situation post the amendment has been very fast. Recently, Indonesian society entered a new stage of constitutional practice as regards the fight for the basic right of freedom of religion.

This basic right is clearly stated in Article 28B(1), Article 28I(1), and Article 29 of the Constitution, as well as in international human rights instruments, particularly Article 18 of the Universal Declaration of Human Rights (UDHR) and Article 18 of the International Covenant on Civil and Political Rights (ICCPR).Until today, the main problems regarding the protection of freedom of religion have never entered the arena of constitutional review. The Constitutional Court’s decision No. 12/PUU-V/2007 on the Marriage Law, especially the articles on polygamy, has opened the gate to constitutional activism for the protection of freedom of religion as a fundamental right of every Indonesian citizen.

A constitution as the supreme law of the land sets out the basic structure of the governmental system in every nation. The constitution of every country, however, has different characteristics that can influence the form of the state. As regards the freedom of religion, we often hear about the different concepts of a religious state, secular state and other types of state. (more…)

 

October 11, 2007

Constitutional Review and Freedom of Religion

Posted by Pan Mohamad Faiz under Const. Court, Const. Law, Freedom of religion, Human Rights, Judicial Review, Religion
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PROTECTING FREEDOM OF RELIGION IN INDONESIA
THROUGH CONSTITUTIONAL REVIEW
Pan Mohamad Faiz, New Delhi, India*

The history and development of constitutional practice in Indonesia within 62 years never asides from process of trial and error. It is conducted to create more democratic living society with a high respect on human right values.

One of the important developments in our constitutional structure was the establishment of Constitutional Court as a response of demand for strengthening the check and balances mechanism in government’s role system.

The improvement of constitutional living post-amendment has developed very fast day by day. Recently, Indonesian society has entranced into a new stage of constitutional practice in regards to fight for their basic rights on freedom of religion. These basic rights has clearly stated in Article 28B (1), Article 28I (1), and Article 29 of 1945 Constitution as well as in International Human Rights instruments, particularly in Article 18 of Universal Declaration of Human Rights (UDHR) and Article 18 of International Covenant on Civil and Political Rights (ICCPR).

Till today, the main problem regarding to the protection of freedom of religion never emerge in the latitude of constitutional review. It is a decision of Constitutional Court No. 12/PUU-V/2007 on Constitutional Review of certain recruitments for practicing polygamy under the Marriage Act, 1974 which has opened the gate to start the constitutional activism for the protection of freedom of religion in order to implement the religious practice as a fundamental right of every Indonesian citizen.

Whatever the verdict of Constitutional Court which has a final and binding decision, we can conclude that the horizon of Indonesian constitutional practice has begun to move forward with the issue which has a close relationship between conception of constitution, freedom of religion and citizen.

Constitution as a supreme law of the land is a basic structure of governmental system in every nation. Every country, however, has different characteristic of its constitution which can influence the form of the state. In regards to the freedom of religion, we often hear a difference between the concept of religious state, secular state, and other concepts.

The result of 46th Amendment of Indian Constitution which added the word ”secular” in its Preamble has shown that India is a secular state with special emphasize in respect to the values on freedom of religion and tolerance.

The First Amendment of American Constitution gives a guarantee on freedom of religion for each of its citizen, but it doesn’t give any chance for its legislature to make any Law that can regulate the religious practice.

In their research on relationship between constitution and freedom of religion, Tad Stahnke and Robert C. Blitt (2005) divided the countries which have majority muslim population into four categorizes, they are: first, the countries declaring themselves as an Islamic-State; second, the countries stating Islam as the official religion of the state; third, the countries declaring themselves as secular-state; and fourth, the country never declaring anything in their constitution, whereas one of them is Indonesia.

If Indonesia is categorized as the latest, then the question is what is the real concept of our state which has been created by our founding fathers? To answer this question, Mahfud M.D. tries to explain using the prismatic conception which is adopted from the terminology made by Fred. W. Riggs.

From the constitutional perspectives, according to him, Indonesia is a Pancasila State. It means that Indonesia neither is a religion-state nor a secular state. A religion-state only based on a particular religion while a secular-state prevents religion from interfering with state affairs. Moreover, the Pancasila State is a religious nation state in which a nation protects and facilitates the development of all religions followed by the people without any different treatment due to the quantity of its followers.

In this context, it is a must that a State has to have a constitutional obligation to protect the freedom of religion for each of its citizen. Quoting the association which is used by Jimly Asshiddiqie, when the Constitution stands on one of our hands, the holy book has also stand in another hand. It means that those two things have to work in harmony and it cannot contradict one to each others.

Using the approach of comparative study, Indonesia is one of the countries which lacks of experience on the effort of protection of freedom of religion through the constitutional review mechanism. In fact, this mechanism has become an important tool in other countries when the right to practice the freedom of religion cumbered by the regulation or any actions of the State.

In some countries, such as India, United States and Germany, the constitutional review on the ground of freedom of religion is a common practice. For instance, the case on Mudghal v. India (1995) about the planning of law unification due to the growing practice of polygamy in India, or the case on Wels v. United State (1970) about the rejection of one person to accede the battle of war because it is against his belief.

Another interesting case on Federal Constitutional Court of Germany (Bundesverfassungsgericht) is “the traditional slaughter case” (BvR 1783/99, 2002). The court accepted the petition of constitutional review on the provision of animal slaughter method under the Animal Protection Act. Several provisions on this Act, according to the applicant, hamper the practice of worship based on his religion.

With the development on constitutional review practice, the guarantee and the protection of freedom of religion and its practice will become stronger. Unfortunately, the constitutional review in Indonesia merely can be done by reviewing laws against the Constitution. It excludes from the mechanism of constitutional complaint where it has become the most important authority of the Germany Constitutional Court.

Consequently, many government actions in the middle of society, all form of regulations and decisions of court which are believed violate the provision of freedom of religion in 1945 Constitution cannot be reviewed perfectly before the Constitutional Court.

It means that the Indonesian constitutional system and its practice have to be developed more seriously. Due to the lacuna of constitutional protection mechanism, it can be predicted that in the future there will be a huge obstacle to fulfill the basic rights of citizen in order to achieve the intrinsic of freedom of religion.

* The writer is a Postgraduate student on Comparative Constitutional Law at Faculty of Law, University of Delhi. He can be reached on http://faizlawjournal.blogspot.com.

Education is not a product – mark, diploma, job, money – in that order; it is a process a never-ending one.
 

May 2, 2007

Death Penalty in Indonesia (2)

Posted by Pan Mohamad Faiz under Const. Law, Death Penalty, Indonesian Law, Judicial Review
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THE CONSTITUTIONAL DEBATE ON DEATH PENALTY
By Mohamad Mova Al ‘Afghani (Bremen) and and Pan Mohamad Faiz (Delhi)

Capital punishment debate resurfaces when a group of death row inmates lodged a judicial review to the Constitutional Court against death penalty articles under the 1997 Narcotics Law, used by the criminal court to sentence them. Almost 130 countries in the world had abolished capital punishment while the rest including Indonesia still preserves it.

The petitioners argue that death penalty is a denial on the right of life as guaranteed by Articles 28A and 28I of 1945 Constitution. According to international human rights instruments such as the International Covenant on Civil and Political Rights (ICCPR), the right to life is a “non-derogable right”. Indonesia is a party to the ICCPR but has not acceded to its protocols. Petitioner’s lawyers argued that as the verses on the Constitution almost verbatimly mimic the ICCPR’s wordings, they have to be interpreted pararell to the ICCPR.

ICCPR does not prohibit death penalty but its protocols do. As Indonesia is not a party to any ICCPR’s protocol the practice of death penalty will not violate any international obligation to the ICCPR as long as the treatment of the inmates in the death row and the execution of the convict is made in accordance with international standards.

It is then left to the problem of constitutional interpretation. Article 28I (1) of the constitution guarantees stated that the right to life cannot be limited under any circumstances, but Article 28J (2) stated that “In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law … based upon the consideration of morality, religious values, security and public order in democratic society”. The debate goes on as to whether the application of Article 28I (1) – due to the phrase “cannot be limited under any circumstances” – is non-derogable, including by Article 28J (2).

The convict’s attorneys think that the rights under Article 28I (1) belongs to the cluster of rights which are non-derogable, including by Article 28J (2). The government on the other hand, is of the opinion that Article 28J (2) may derogate Article 28I (1). Toward this polemic, there are a few methods of interpretation that can be applied.

First, by using the literal approach, it would appear that prohibition of death penalty is stated nowhere on the Constitution. The wordings of “cannot be limited under any circumstances” under Article 28 I (1) cannot therefore be interpreted so as to mean prohibiting death penalty. A comparison towards Germany and Vietnam’s constitutions would reveal that the prohibition of death penalty is supported with a written, literal expression on the articles of the Constitution. As Indonesia’s Constitution has no such provision, death penalty is so far, in line with the Constitution.

Second, by using the teleological approach, it can be seen from the preamble that the purpose of the constitution is to first “protect the whole people of Indonesia and the entire homeland of Indonesia”. Indonesia has 3.2 million drug users with the number of death around 15.000 users per year or an average of 41 deaths per day due to the overdose or drug-related AIDS infection. The state has the constitutional obligation to prevent these deaths and to prevent the occurrence of lost generation. Thus, the protection of the people by the state is paramount and would constitute a higher obligation in comparison to other duties.

Third, using the systematical method of interpretation, it would be clear that Article 28 J is placed under the same chapter with Article 28 I, which is the amended human rights chapter. It is then conclusive that Article 28 J was made “in relation and with due regard to” Article 28 I. We do not consider it appropriate to interpret that the restriction towards the implementation of human rights under Article 28 J refers to clusters of rights other than Article 28 I. The restriction under Article 28 J appears to cover the whole set of the constitution.

Moreover, under the social contract construction, perpetrators are deemed to have waived their right to life which is protected under the law by conducting actions which results in the loss of life of other. Thus, by “knowingly” killing others and having aware that their action entails a capital punishment, they have given “implied consent” to be punished with death penalty.

There are also a number of non-legal arguments which supports death penalty, especially when it comes to “most serious crime”. There is no common understanding among UN Countries on this matter. Nonetheless, we can refer to the concluding observation of U.N. Doc. CCPR/C/79/Add. 25, 1993 which stated that the “imposition of [death penalty] … for crimes than do not result in loss of life, as being contrary to the Covenant.” The Advisory Council of Jurist of Asia Pacific Forum considers this crime as those which involve the wanton destruction of human life. In their book, International Criminal Law and Human Rights (2003), Claire de Than and Edwin Shorts defines the scope of “most serious crimes” encompass modern threats such as drug trafficking or terrorism.

Narcotics are the kind of crime which may results in the loss of life of others. The debate however continues as narcotic accomplices does not “pull the trigger” themselves. From a consequalist point of view, it may not be relevant that a certain crime is conducted “wilfully and knowingly” which means that there is a direct causal relation between the intention to kill and the consequences resulted by such intention or only “knowingly” which suggest that the intention to kill is not as manifest as the previous condition, as long as it results in the loss of life of others. Thus, killing by producing and organising narcotics is by no means a lesser evil compared to killing a person directly, as the perpetrators are fully aware that their action will result in the loss of life of others.

In this grave condition, States are fully responsible to protect its citizen. State has to exercise “action” by introducing a special measure of punishment. Otherwise the states might be guilty for failing to protect the lives of its thousand citizens because of its “omission” and a “failure to act” (Sustain and Vermule, 2005).

Comparative study has shown that most of the retentionist countries decided to abolish death penalty after a long crucial public, judiciary and legislative debate. Due to de jure reality of death penalty, what may be done is restricting the offence for which the death penalty is allowed under the law. Quoting the analysis from The Jurist of Asia Pacific Forum, ultimate abolition is possible only when the basic standard in the criminal justice system is already achieved.

***

Mohamad Mova Al Afghani (http://indolawreport.blogspot.com) is the founder of Center for Law Information.

Pan Mohamad Faiz (http://panmohamadfaiz.blogspot.com) is the founder of Institute for Indonesian Law and Governance Development.

Education is not a product – mark, diploma, job, money – in that order; it is a process a never-ending one.
 

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