Category Archives: Constitution

Constitution and Sustainable Development

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CONSTITUTIONAL APPROACH TO DEVELOPMENT
Pan Mohamad Faiz, New Delhi

Note: This article was published in The Jakarta Post [18/02/2008]

According to the Human Development Report 2007, launched by the United Nation Development Program, the Human Development Index (HDI) for Indonesia is 0.728, giving the country a ranking of 107th out of 177 countries, and 7th among the Southeast Asian countries.

The most significant reason for this situation is the drawbacks caused by sustainable development in Indonesia. Some people strongly believe that raising the challenge of sustainable development can help the Indonesian policy debate go forward in a better direction.

At the heart of the problem is how to deal with promoting the sustainable development of Indonesia. One of the best approaches can be viewed from the perspective of human rights protection for the people.

Basically, sustainable development encompasses three pillars based on environmental, economic, and social values that are interdependent and mutually reinforce human rights. 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.

Indonesia, Constitution and Holy Book

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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. Continue reading →

Death Penalty in Indonesia

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CONSTITUTIONALITY OF DEATH PENALTY
IN INDONESIAN NARCOTICS ACT

1945 Constitution is the supreme law of the State. It is an agreement of all Indonesian people wherein every law and rules under the Constitution can not contrary the substances of Constitution itself. Constitutional interpretation is not an easy thing because it is not only strict to what grammatically stated.

Constitutionality of Death Penalty

Regarding to death penalty in Indonesia, actually how is the constitutional validity of its practice? Is it true that death penalty contrary with Article 6(1) of ICCPR and Article 28I (1) of 1945 Constitution such as the public opinion which has developed recently? Unfortunately, most of the people only interpreted the provision in partial without clearly understanding the whole meaning which is contained inside those Convention and Constitution.

Professedly ICCPR has a spirit to abolish the death penalty in this earth, but it is not an absolute proviso for its State Members. ICCPR doesn’t tickly close for those countries that still treating death penalty as one of the punishment methods in their legal system. Article 6(2) laid down an exception to impose the death penalty only for the most serious crimes. It means ICCPR fully respect the sovereignty of its members to regulate the necessity of death penalty in their countries as long as it is fulfilling the international requirements. This condition will totally change if Indonesia ratifies the Second Optional Protocol of ICCPR wherein the state members can’t execute anyone with death penalty unless for a most serious crime of a military nature committed during wartime through special reservation notify to Secretary General of the UN.

It is not much different when someone proposes to interpret the constitution. In this case, we have to use also a holistic interpretation method that interprets constitutional provisions as an integral and integrated constitution. It is right that Article 28I (1) guarantees right to life that cannot be limited under any circumstances, nonetheless it has to be followed with comprehensive understanding of Article 28J (2) which stated, “In exercising his/her rights and freedoms, every person shall have the duty to accept the restrictions established by law …”. In other meaning, the Constitution has given the exception and reservation of right to life in Article 28I (1) based upon the consideration of morality, religious values, security and public order.

The spirit of 1945 Constitution relating to the death penalty will be clearly seen when we use socio-historic interpretation method through the historical fact from the session when the legislator were amending the Constitution. We will easily find that the historical social context behind the formulation of the provision was not to abolish the death penalty, but it gravitates to give a stronger guarantee and more assertive of rights to the people.

Narcotic as ‘Most Serious Crime’

The explanation above has clearly said that the death penalty has constitutional validity according to 1945 Constitution. The next question is whether the narcotic and drug abuse implies the category of ‘most serious crime’ or not? Till today, the definition of this clause hasn’t come up with the common understanding amongst UN Countries. Nonetheless, we can refer to the concluding observation of U.N. Doc. CCPR/C/79/Add. 25, 1993 which stated, “considers the imposition of [death penalty] … for crimes than do not result in loss of life, as being contrary to the Covenant.” Therefore, there is a strong indication that only offences directly resulting in an intentional loss of life can fulfil the criterion (Jan Kratochivl, 2006). Martin Scheinin in Capital Punishment and ICCPR holds that the classification of a crime as one of the most serious crimes should be based on the intent of the perpetrator and the consequences of the crime.

Furthermore, 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. For drug trafficking, its subterfuges can be based on the UN Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substance, 1998 which becomes a legal ground for international cooperation amongst countries in order to exterminate the silent transnational crimes on illegal circulation of narcotic and psychotropic substance.

In national level, the dangerous of this crime has been proofed through the empirical research by National Narcotics Agency (BNN) and University of Indonesia (UI). It concluded that there are about 3.2 million drug users in Indonesia with the number of death around 15.000 users per year. It means there were 41 people died every day due to the overdose or drug-related AIDS infection. If it is always happen in the future, surely sure that within 5-10 years Indonesia will have lost generation. Hence, it will be very outlandish if someone not acknowledges Narcotic Crimes as a most serious crime in Indonesia.

– To Be Continued –

Notes for Next Articles:

  1. The drawback of implementation is nothing to do with constitutionality of death penalty.

  2. Ultimate abolition is possible only when the basic standards in the criminal justice system already referred to have been achieved (Advisory Council of Jurist of Asia Pacific Forum).

  3. According to Harkristuti Harkrisnowo (February, 2007), Indonesian Penal Code Bill will treat the death penalty as a preferential punishment wherein the accuser who has imposed by death penalty will be attempted for ten years. If the accuser discloses a good behaviour then his/her sentence will be changed into the life imprisonment. J.E. Sahetapy called this system as de facto abolition (January, 2005).

  4. New Evidence from Post-moratorium Panel Data by Joanna M. Shepherd et. al. in Does Capital Punishment Have a Deterrent Effect? published at American Law and Economic Reviews results that capital punishment has a strong deterrent effect; each execution results, on average, in 18 fewer murders.

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

Indonesian Parliament vs. Indonesian Constitutional Court

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The Ninth Schedule of India:
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.

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