An Alternative Solution for Indonesian Constitutional Balances?
The Ninth Schedule is a Constitutional provision of India which was drafted by the Nehru Government in 1952 granting Parliament the power to insulate any law from judicial review. The provision came into sharp focus as the political class tended to use it for all kinds of things.
According to this provision, none of the laws specified in the Schedule shall be deemed to be void, or ever to have become void, on the ground that it was inconsistent with any judgment, decree or order of any court or tribunal to the contrary. This meant that the laws figuring in the Ninth Schedule were not subject to judicial review.
The justification offered was that courts should not be allowed to get in the way of socialist policies such as land reform. Accordingly, all the 13 laws that were put in the Schedule in the first instance pertained to land reforms in various states. Presently, the number of laws in the Schedule has in the process jumped from 13 to 28.
Given it potential, successive governments have conferred the Ninth Schedule protection on a variety of laws, often chosen on consideration of political expediency. The reason why political parties again felt the need for the Schedule in the context of reservations was there recent verdict of the Supreme Court extending the creamy layer rule to SCs (schedules castes) and STs (schedules tribes).
The condition which I have illustrated above is quite similar with today issues where Indonesian Parliament want to have it. It was happen because many provisions of Act which have been enacted by Parliament were declared unconstitutional as judicial review petition came before the Indonesian Constitutional Court. At least several provisions from eight different Acts have been declared unconstitutional by the Court evey year. Even there were two decisions which had nullified a whole provision of its Act since three years back, namely the Electricity Act and the Truth and Reconciliation Commission Act. Therefore, the parliament felt uncomfortably with the decisions of Indonesian Constitutional Court who did not count an effort of legislators struggling and debating when they were making a Law.
Due to that condition, I was not very surprise when one of my faculty Professors invited and informed me that there were delegations from the Legislation Body of Parliament of Indonesia who came to share a comparative legislation in India last month. Fortunately I met and participated in the discussion meeting between Indonesian delegations and Professor of Laws from Delhi University, thus I knew what they were discussing inside.
One of the interesting questions rose in that discussion was the question regarding the legislation system in India to preventing the enacted laws by Parliament applied for judicial review before the Court. In that time, the representative professor just answered the question with a briefly explanation. They didn’t explained about the Ninth Schedule which I have explained before or may be I can say that they were all forget about this provisions.
It is great news for Indonesian Legislator, isn’t it? Finally, there is an example of balancing system in another country which can prevent all the laws totally applied for judicial review. If you think so, it means that you have to consider once again whether this system can be used for Indonesian judicial system in the future.
The reason why we should consider more for that system is because of persisting with its assertive mode vis-a-vis the legislature, the Supreme Court of India who has an authority to deal with judicial review application said on this week that laws put in the Ninth Schedule after April 1973 cannot escape judicial scrutiny if they appeared to breach citizenship’s fundamental rights or undermine the basic structure of the constitution.
In articulating the test of legality of ninth schedule laws, the Supreme Court of India virtually carved out the fundamental among the fundamental rights that form the basic structure of the Constitution and hence, inviolable. Moreover, a nine-judge constitutional bench of the court said right to equality, right to freedom of speech and expression with all their extended in interpretations form the core of the Constitution, which could by no means be violated by Parliament’s amending power.
The court took the extended interpretations of the fundamental rights as an integral part and demonstrated it by examples their vitality to the system of governance in the country. The legislature, depending on the situation, can limit it, but cannot pass a law totally abrogating it and the moment they pass such a law, it will the protection of the ninth schedule.
Conferring Parliament unlimited power the legislate even if it meant defeating the fundamental rights would translate into a licence to enact laws in the name of giving shape to the social justice principles under the Directive Principles, even if it practically breached fundamentals of Constitution that also incorporated social interest clause.
So, there is no way to adopt this system into Indonesian constitutional system. Because of those Court’s decisions, a brighten hope for Indonesian legislator has just gone by the wind. But please think more, since the decision is still debatable among Indian law expertise, it means there is a chance to bring the system with a little modification into Indonesian constitutional system. A senior advocate and former solicitor general of India, T. R. Andhyarunija, said that the latest judgment of the Court does not really break new ground as this was already decided by the Court in 1980 in Waman Rao’s case. Therefore, the latest judgment should not affect Indian Parliament’s power to amend the Ninth Schedule materially.
Finally, if you are in the same boat as Parliament’ thought who thinks that there should be a more restriction for Constitutional Court regarding to its decision authority which some Indonesian legal prominent said that the decree of the Court was often “ultra petitum”, adding the provision such kind of the ninth schedule into Indonesian constitution can be an alternative way despite to review the provisions of Constitutional Court either in 1945 Constitution or Law No. 24 of 2004 on Constitutional Court.
I hopeIndonesia could find the best way to establish his constitutional system in the future days.