Suspension constitutional Order by indonesia Constitutional court by Fritz Edward Siregar Suspension constitutional Order by indonesia Constitutional court.

Presentasi berjudul: "Suspension constitutional Order by indonesia Constitutional court by Fritz Edward Siregar Suspension constitutional Order by indonesia Constitutional court."— Transcript presentasi:

1 Suspension constitutional Order by indonesia Constitutional court by Fritz Edward Siregar Suspension constitutional Order by indonesia Constitutional court by Fritz Edward Siregar

2 Fundamental aspect of the reform agenda The amendment of the 1945 Constitution (from 1999 until 2002) The successive amendments incorporated an extensive bill of rights, based on the international bill of rights nto the Constitution Effectively for the first time, citizens of the Indonesian Republic were able to enjoy rights independently of the State The amendment of 2001, Those rights were declared to be enforceable by a newly created Constitutional Court The creation of Indonesia’s Constitutional Court was linked decisively to the need for an independent institution that would be able to drive the democratisation process forward The Constitutional Court has positioned itself as ‘the guardian of the Constitution and the protector of Indonesian human rights’

3 By issuing conditionally constitutional decisions The Court started to expand its role from negative to positive legislator. One form occurred when the Court stated that ‘the law was constitutional but only if it [was] interpreted the way the Court interpreted it’ The second form of conditional decision occurred when the Court issued a conditionally constitutional or conditionally unconstitutional decision by inserting a new word into the law. The Court had the capacity to issue two forms of conditionally constitutional decision The third form of conditional decision declared that the law was unconstitutional and provided a period during which the decision should be enforced, giving the President and the DPR time to amend the existing law according to the Court’s interpretation. “Suspension of invalidity or suspension of constitutional orders”

4 The First Case Challenge to the constitutionality of the Corruption Court. The Court reviewed the constitutionality of Article 53 of the Anti-Corruption Commission Law regarding the establishment of the Corruption Court. The Court determined that the establishment of the Corruption Court under the anti- corruption commission law was unconstitutional as it provided an opportunity for a general court to handle corruption cases Invalidating the article would weaken the fight against corruption in Indonesia, The Court provided three years for the legislature to revise the law and establish a proper legal basis for the anti-corruption court The Second Case The 2008 Education Budget Case The Court found that the Education section of the 2008 State Budget did not comply with Article 31(4) of the 1945 Constitution and declared the 2008 State Budget unconstitutional. The Court suspended the validity of the Court’s decision until the Government introduced a new State Budget The 2004 Water Resources Case The Jimly Court first introduced a type of conditionally constitutional decision in deciding the constitutionality of Law Number 7 of 2004 on Water Resources (the 2004 Water Resource case) In that decision, rendered on 19 July 2005, the Court rejected the application and declared the legislation conditionally constitutional but it provided some principles that the government must comply with when implementing the 2004 Water Resource Law. The Court acknowledged that the right to use water was a right derived from basic human rights and should be interpreted as part of the right to live

5 it left open the opportunity for the application to be relodged as a judicial review application if the government failed to comply with the principles the Court had provided the Court waived restrictions on filing an application for judicial review of a statute against a specific constitutional provision more than once, as ordinarily prohibited by Article 60 of the 2003 Constitutional Court Law the applicants challenged six implementing regulations of the 2004 Water Resources Law that they alleged contradicted a set of principles that had been decided by the Court in the 2004 Water Resource Case on 18 February 2015, the Court rendered its decision and determined that the President had not complied with the Court’s interpretation of the law in the 2004 Water Resource Case and declared the entire Law 7 of 2004 on Water Resources unconstitutional

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7 The applicants were teachers and members of the Indonesian Teachers Association. Argued that Article 31(4) of the Constitution, which required the State to prioritise education by allocating at least 20 per cent of the State and regional revenue and expenditures budget to education spending, imposed mandatory obligations. Every year since 2005, the applicants had filed a judicial review case against the State Revenues and Expenditure Budget Law First Education Budget Case decision The Court had dismissed the applicant’s petition. T The Court reasoned that the Petitioner could not prove that there is constitutional right that has been breached by the non- compliance of Article 31 (4). The annulment of 2005 State Budget Law, in Court’s view would create difficulties in entire financial system and lead to uncertanity on budgeting in other sectors.

8 Third Education Budget Case decisions The Court granted the petition, but decided, having regard to the consequences of the State Revenue and Expenditure Budget Law being declared constitutionally invalid, to declare only the existing percentage of the education budget to be in violation of the Constitution. The Court stipulated that the only the existing percentage of the education budget ( which is only 9.1%) to be in violation of the the Constitution but not for the remaining clauses of the 2006 State Revenue and Expenditure Budget Law. Fourth Education Budget Case decision The Court was confronted with an education budget in the revised 2008 State Revenues and Expenditures Budget Law what made up 15.6 per cent of the overall budget The Court declares the entire revised 2008 State Revenues and Expenditures Budget Law constitutional[ly] invalid

9 The Court declared that Corruption Court that esablished through the Article 53of the KPK Law was inconsistent with Article 24 paragraph (1) and 24 paragraph (1) and (2), Article 24A paragraph (5) of the Constitution Article 53 of the KPK Law has established two different court within the same jurisdiction, with each court applying different procedural rules. In practice, the ordinary courts and the Corruption Crime Courts had shown double standards to eradicate the corruption through two distinctive judicial mechanism. 2006 The Court argued that, “However, if Article 53 of the KPK Law which has been declared contradictory to the Indonesian Constitution also declared no longer has binding legal force, the ongoing corruption criminal investigation by KPK and the Corruption Court hearing becomes impaired or obstructed due to loss of legal basis. The Court considers the necessity of providing time for a smooth transition process for the establishment of a new rule Corruption has damaged the social and economic rights of the Indonesian Community, as an extraordinary crime and a common enemy of the community and nation as a whole 3 years for KPK to improve its institutional arrangements of the Corruption Court. If within 3 years the law makers not fulfil this decision, then the provision of Article 53 of the KPK Law not have any binding legal force anymore The Court decided to give more time

10 has been developed in practice not only in Indonesia but also in different part of the world, to suspend the validity or legal consequence of a decision. The suspension gives the legislators time to correct or update the law to fit what the Constitutional Court decided. Judicial deferral or suspension declaration of invalidity or suspension of constitutional order to reduce the disruptions and chaos that may arise with the introduction of a new legal regime The legal consequence which should be done after a decision regarding the contrary of a law to Constitution is too difficult to implement, or unrealistic if it must be implemented immediately The purpose of this suspension the court need to give a grace period to amend the legal norm, in order to allocate the impractical and unrealistic legal cause to certain period of time provided. the suspension order also allows for a constitutional dialogue between judiciary and legislature. The Court can provide the parliament with time and space to introduce a new arrangement, and the legislature in general would have more sources of information and greater legitimacy as democratic institution. In consequence

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