Volume 4 Issue 1, March 2023: PP: 85-98
Faculty of Law, Universitas Lampung, Bandar Lampung, Indonesia.
http://jurnal.fh.unila.ac.id/index.php/constitutionale P-ISSN: 2723-2492 E-ISSN: 2745-9322
A Comparative Analysis of Constitutional Rights in the Gambia and Indonesia
Ousu Mendy1
1Universitas Atma Jaya Yogyakarta, Indonesia E-mail: [email protected]
Article’s Information Abstract keywords:
Autonomy, Constitutional Rights, Enforcement, Indonesia, The Gambia.
DOI :
https://doi.org/10.25041/constitutio nale.v4i1.2951
While there is strong advocacy globally on human rights, little attention is paid to constitutional rights in some countries. Many constitutions contain constitutional rights, which are mainly referred to as the bill of rights in their constitutions. This piece presents a comparative exposition of the constitutional rights in The Gambia and Indonesia as constitutional states. Both countries are sovereign, and the strength and lethargy in enforcing these rights in these countries are of great significance in this research. In this research, empirical and normative research approaches are taken to examine both primary and secondary data. Primary materials like the constitutions of the two countries, legislation and court cases on constitutional rights are used. Secondary materials like articles and books are sufficiently used to support this research. Cognizant that a constitution is both a legal and political instrument, the Constitutional Court of Indonesia is undermined to a certain extent by both the House of Representatives and the Executive, and The Gambia’s sparing moments in disobeying High Court orders as regards constitutional rights, this research finally reaches an informed verdict that constitutional rights are different from human rights and approaches to their enhancement ought to be premised on citizenship. The inclusion of legal provisions in constitutions does not, ex cathedra, make institutions strong. Therefore, both countries need a paradigm shift in their national mechanisms to strengthen the institutions that enforce these rights despite the institutional differences in socio-political and socio-legal structures. To do this, the constitutional defense bodies must be comparatively Submitted: Mar 07, 2023; Reviewed: Mar 29, 2023; Accepted: Mar 30, 2023
legislative, executive, and judicial functions to carry out such activities to increase individuals’ and States’
respect for the constitutions and the law and the constitutional rights guaranteed by these constitutions will make fresh and significant strides.
A. Introduction
A constitution is not only a legal document but also a political tool. It is a multifaceted instrument in terms of what it permits, restricts, and propagates. While a constitution is set out to, among many things, protect the constitutional rights of the people within the country, it is also designed to limit the activities of the states and to what extent states can derogate certain rights of the people.1 The constitutional ideologies of absolute and derogatory rights and state of emergency form vital components in dealing with constitutional rights issues in a country.
Indonesia and The Gambia exhibit differences in terms of the legal system, legal politics, and sociology but amidst these differences stands out one vital thing that forms a nexus between them. Both constitutions of the two countries recognized provisions of the International Bill of Rights. It is obvious that there is a nexus in both the legal and political frameworks of the two countries as enjoined by their constitutions.
A constitution is sometimes described as “the magnificent agreement” between the government and its people and “a ticket for admittance to a civilized nation”. The constitution is a fundamental agreement and covenant between the people and the government. Citizens grant the government a kind of “mandate” or “power of attorney” for it to carry out the terms of the constitutional contract.2 As a result, citizens act as the authorizer and the state as the beneficiary of the mandate or power of attorney. In other words, if there is a “right” of the people, then the state has a “duty” to uphold that right. To fulfill or obtain a citizen’s right, the state must execute its obligation to do so.3 Rights and obligations are inseparable.
While these countries have different institutions in the enforcement of constitutional rights, their ultimate objectives are to ensure recognition, protection, and fulfillment of these rights within the context of the constitutions. To achieve this, both primary and secondary data are used with a comparative approach to how the court systems in these two countries respond to constitutional cases and how effective they are in exercising their functions as constitutional institutions. Therefore, a comparative analysis of these two countries' constitutional rights will help reflect on their diversities and the extent to which constitutional rights are enforced and violated.
Therefore, the challenges and prospects are key to this research regarding the effectiveness or otherwise of legal mechanisms in ensuring the enforcement of constitutional rights in the two countries. Article 1 (3) of the Constitution of Indonesia 1945 recognizes the country as a state premised on the rule of law. The rule of law is a political philosophy in that institution and citizens within a state or country are accountable to the same laws. It provides for the supremacy of the country's laws and theoretically establishes a country of laws and not of men. Section 4 of the Constitution of The Gambia, 1997 also recognizes the Constitution as the supreme law of the Land.
1 Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (London: Oxford University Press, 2019), 24.
2 Harry N Hirsch, A Theory of Liberty: The Constitution and Minorities (Routledge, 2019), 40.
3 TM Luthfi Yazid, Galang Asmara, Gatot Dwi Hendro Wibowo, and Hayyan ul Haq, “Questioning the Constitutional Obligation of the State in Protecting Citizen’s Fundamental Rights in Religion,” Journal of Legal, Ethical and Regulatory Issues 23 (2020): 1.
These two provisions form a condicio sine qua non for these states to be held accountable for their acts. Human rights enshrine in a constitution as constitutional rights only apply to persons with citizen status.4 The Constitution is the highest law, and other laws only help to define its provisions, including provisions that deal with regulation and subsequent development of more operational and tangible protections for constitutional rights. It is required to ensure legal certainty and the judicial institution to enforce and interpret the Constitution to assure that the Constitution is fully implemented in terms of protecting human rights and guaranteeing that the regulations made pursuant to the Constitution are in accordance with or not in conflict with the Constitution itself.5
The Constitution of The Gambia 1997 provides for the constitutional rights of Gambians in sections 17 to 33 and those of Indonesians are in Article 28 of the Constitution of Indonesia 1945. These two sets of provisions in these constitutions outline a yardstick of what the people can demand of their states. Constitutional rights are rights drawn from human rights principles and enshrined in the constitution. Once such human rights have been ratified and incorporated into a constitution, they bind all divisions of governmental authority.
Therefore, a violation of constitutional rights is a violation of the constitution, and the person who has those rights must be provided with legal recourse to uphold those rights, which the constitution guarantees.6 One of the main attributes of a constitution is constitutionalism. This is a constitutional philosophy in which state institutions operate based on the constitution and may not violate the constitution. Instead of aspirational and theoretical and philosophical purposes, provisions of a constitution must be applied in practice. While The Gambia interprets and enforces constitutional rights through the High Court,7 Indonesia also does so through the Constitutional Court as a constitutional institution in Article 24C.8 Indonesia conforms to a democratic system in the sense of direct democracy in the context of Pancasila democracy.9
This is enunciated in the fourth moral principle of Pancasila. The Pancasila democracy, which represents social justice for all Indonesians, is a democracy that is founded on God, just and civilized mankind, and the unity of Indonesia.10 Therefore,the regulations that stipulate that human rights occur, are acknowledged, and are protected but enforced are the only ones that are covered by existence and recognition at the constitutional level. On the other hand, as regards implementation, it also relies on institutional apparatus, as well as the workings of state organizers and their determination.11 Therefore, ascertaining the effectiveness and otherwise of the states’ institutions is examined below. However, none of these cited authors discuss the constitutional rights issues of one country in relation to another country.
4 Tafta Aji Prihandono, Sri Kusriyah Kusriyah and Widayati Widayati, “Awareness on Constitutional Rights of Citizens and Form of Protection of Constitutional Rights of Citizens in Indonesia,” Jurnal Daulat Hukum Vol. 1 No.4 (2018): 1006.
5 Tibaka, Leli, “The Protection of Human Rights in Indonesian Constitutional Law after the Amendment of the 1945 Constitution of the Republic of Indonesia,” Fiat Justisia Vol. 11 No.3 (2017):.271.
DOI: http://dx.doi.org/10.30659/jdh.v1i4.4145
6 I Dewa Gede Palguna, “Constitutional Complaint and the Protection of Citizens the Constitutional Rights,” Constitutional Review Vol. 3 No.1 (2017): 2. DOI: https://doi.org/10.31078/consrev311
7 Section 132 (1) (b), Constitution of the Republic of The Gambia. 1997.
8 Section 24C, Constitution of Indonesia 1945.
9 Franciscus Xaverius Wartoyo, “The Consept and its Implementation of Indonesian
Legislative Elections based on the Pancasila Democracy Perspective,” Yustisia Vol. 8 No. 1 (January-April 2019): 109.
10 Wahyudin, “Pancasila and the Development of Democracy in Indonesia: An Axiological Perspective,” Jurnal Kawistara Vol. 9 No.2 (2019): 133. DOI: https://doi.org/ 10.22146/kawistara.34854
11 Sulistyowati, Wahyu Nugroho and Umar Ma’ruf, “The Problem of Legal Protection for Human Rights Activists,”
Sociological Jurisprudence Journal Vol. 6 No. 1 (2023): 56.
The novelty of this research comparatively examines the constitutional rights of the two countries of Indonesia and Gambia to reflect on the diversity and extent to which constitutional rights are upheld and violated. Although these two countries have different institutions in the enforcement of constitutional rights, the ultimate goal is to ensure the recognition, protection and fulfillment of these rights in the context of the constitution. In this regard, none of the cited authors address the issue of a state's constitutional rights in relation to other states.
B. Discussion
1. Constitutional Institutions and Constitutional Rights
The inclusion of this institution as a state entity in the constitution (the Constitution of 1945) is to enhance human rights institutions. The protocol will result from this strengthening, and institutional rights will be quite powerful. A national institution that has been given the separate and distinct legal status of a legal entity is able to exercise its authority, make decisions on its own, and carry out its duties without interference from the government or other public or private organizations.12 A special chapter, Chapter XA, which comprises Articles 28A–28J, implements the assertion of Indonesia as a state of the law with greater and more thorough regulation of human rights. All facets of human rights are safeguarded in this chapter. The rights to the welfare of society, such as economic, social, and cultural rights, are included in these components in addition to civil and political rights. To qualify Indonesia as a state law, the 1945 Constitution's protection of human rights represents a state commitment to constitutional rights.
Human rights are not automatically honored just because they are guaranteed and protected by the constitution. The only ones guaranteed at the constitutional level are those governing the existence, recognition, and protection of human rights. Meanwhile, institutional infrastructure, mechanisms, and formal state promises are necessary for its implementation.13 Numerous incidents of human rights abuses, including egregious ones that have not been adequately addressed, show how poorly human rights are protected and enforced in Indonesia.
This is inextricably linked to the issue with institutional models, as each still has several flaws, including a lack of independence and effectiveness in power, functions, and funding.
As a result, it's critical to incorporate and integrate the strengthening of human rights protection and enforcement. The inclusion of this institution as a state entity in the constitution (the Constitution of 1945) is to enhance human rights institutions.
The protocol will result from this strengthening, and institutional rights will be quite powerful. A national institution that has been given the separate and distinct legal status of a legal entity is able to exercise its authority, make decisions on its own, and carry out its duties without interference from the government or other public or private organizations. A special chapter, Chapter XA, which comprises Articles 28A–28J, implements the assertion of Indonesia as a state of the law with greater and more thorough regulation of human rights. All facets of human rights are safeguarded in this chapter. The rights to the welfare of society, such as economic, social, and cultural rights, are included in these components in addition to civil and political rights.14
To qualify Indonesia as a state law, the 1945 Constitution's protection of human rights represents a state commitment to constitutional rights. Human rights are not automatically
12 Erwin Chemerinsky, Constitutional Law: Principles and Policies (Cambridge: Aspen Publishing, 2019), 12.
13 Khalid, Hartiwiningsih, and Hari Purwadi, “Strengthening of Institutions and Protections Enforcement of Rights of Women and Children in Constitution.” International Journal of Business, Economics and Law Vol. 15 No.5 (2018): 65 - 66.
14 David M Beatty, Human Rights and Judicial Review: A Comparative Perspective (Leiden: Brill Nijhoff, 2021), 77.
honored just because they are guaranteed and protected by the constitution. Numerous incidents of human rights abuses, including egregious ones that have not been adequately addressed, show how less effective human rights are protected in Indonesia. Amnesty International Report, 2021/2022 on Indonesia records human rights violations ranging from about 367 activists for human rights have been the targets of 158 violent attacks, cyberattacks, and other types of attacks in the past year. In Papua and West Papua regions, security forces committed unlawful killing largely with impunity.15 This is inextricably linked to the issue with institutional models, as each still has several flaws, including a lack of independence and effectiveness in power, functions, and funding. As a result, it's critical to incorporate and integrate the strengthening of human rights protection and enforcement.
Unquestionable but uncertain constitutional significance surrounds the issue of citizenship. Therefore, it makes sense that evil results wherever there is a larger awareness of constitutional rights or a greater focus than concurrent and proportionate obligations. Right requires obligation, and rights are the only things that make responsibilities acceptable.
Therefore, as civil liberty increases, so do man’s obligations because greater. Civil liberty entails the enjoyment of more extensive recognized rights. Therefore, let's refer to the freedom of activity determined and constrained by the acceptance of obligation as liberty and the freedom of action that is unconstrained by obligation as licentiousness. The more freedom, the greater the responsibility.16
In asserting the obligation of the state, Section 17 of the Constitution of the Republic of The Gambia, 1997 provides that “the fundamental human rights and freedom enshrined in this Chapter shall be respected and upheld by all organs of the Executive and agencies, the Legislature and, where applicable to them, by all natural and legal persons in The Gambia, and shall be enforced by the Court in accordance with this Constitution”. Including a person's rights in a constitution and other legislation is crucial but insufficient. It is a tool to achieve a goal.
These rights must be seen to be properly recognized and safeguarded. Even while a state of emergency is in effect, some fundamental rights may not be violated. According to Article 4(2) of the International Covenant on Civil and Political Rights, the Articles dealing with the right to life, the right not to torture or cruel, inhuman, or degrading treatment or punishment, the right not to be held in slavery or servitude, the right not to be imprisoned for failing to fulfill a contract, the right not to be held guilty or convicted for any criminal offense that was not a crime at the time of the crime's commission and the right not to be subject to heavier penalties, the right not to be held.17
a. Constitutional Framework of the Gambia and Indonesia
The High Court of The Gambia and the Constitutional Court of Indonesia are the two relevant constitutional institutions in The Gambia and Indonesia that deal with interpreting and enforcing constitutional rights. Constitutional institutions are institutions established by constitutions. Suffice it to point out that the two countries have different legal systems. Still, their commitment or otherwise to the enforcement of the constitutional rights of their citizens is worth examining. Indonesia has three legal systems: civil law, customary law and shariah.
On the other hand, The Gambia legal system comprises common law, customary law and shariah as provided in Section 7 of the constitution. With a view to establishing autonomous
15 Amnesty International Report 2021/2022 (Indonesia): 193 – 196. Available at: https://www.amnesty.org/en/location/asia- and-the-pacific/south-east-asia-and-the-pacific/indonesia/report-indonesia/
16 William N. Eskridge, “Relationship between Obligations and Rights of Citizens,” Fordham Law Review Vol. 69 No.5 (2001): 1723.
17 Maru Bazezew, “Constitutionalism,” Mizan Law Review Vol.3, No.2 (2009): 367.
institutions independent of the executive and the legislature, these institutions have exclusive jurisdiction to deal with the constitutional rights of citizens.
b. Constitutional Rights in the Gambia
High Court of The Gambia is a constitutional institution created in Section 131(1) of the 1997 Constitution of The Gambia, with its jurisdiction enshrined in section 132 to, inter alia,
“to interpret and enforce the fundamental rights and freedoms as provided in section 18 to 33 and section 36 (5), and in the exercise of such jurisdiction, the Court shall have all such power and authority as may be conferred by this Constitution or any other law”. Over the years, there have been constitutional rights cases in The Gambia that were heard in the High Court which will be referred to in this section.
The post-independence constitutions of The Gambia, such as the Republican Constitution of 1970 and the present 1997 Constitution, have fallen short of upholding constitutional safeguards for press and speech freedom that meet acceptance criteria. In a bid to undermine reliable and open governance based on the rule of law, participatory democracy, human rights, and justice, the rights have been constrained by laws and practices. Citizens continued to be subjected to the oppression and subjugation of the colonial era due to the laws that criminalized speech. For speech-related offenses that would ordinarily be regarded as a regular exercise of civic rights, journalists, political activists, and human rights campaigners were charged with crimes, and some of them were sentenced to prison.
Under the 22-year rule of former President Jammeh, it can be said that freedom of expression was both the first victim and the most brutalized.18 During this period, myriad arbitrary arrests and detention were against their constitutional rights.19 This right is provided for in section 25 (1) (a) of the Constitution of The Gambia 1997. Following the First Republic's military coup in 1994, the climate for free speech drastically deteriorated. No sooner had the junta taken charge of the State House than they started restricting constitutional rights and liberties. Individuals from all walks of life and professionals in The Gambia eventually suffered consequences for expressing their right to free expression.
Under these laws such as the Official Secrets Act Chapter 17:01 of 2009,20 security guards, government employees, and journalists were charged and largely found guilty by the courts that theoretically interpret and enforce these rights. A series of decrees prohibiting political activity was issued. Section 5 of the Public Order Act (Chapter 22:01, Laws of The Gambia 2009) is one of the tools used to control and limit the peaceful procession of the people. This led to the untimely death of a Gambian activist by state agents in 2016 for leading a peaceful protest on change of election laws.21
A record number of changes to the colonial-era statutes that criminalized speech with harsher punishments and expansive definitions were enacted together with the passage of new anti-speech laws. This includes the above-mentioned Official Secrets Act, which has provisions that interfere with the media's freedom of speech when it comes to matters of national security. Anybody who creates a “sketch, plan, model, or note” or publishes or communicates “any official secret code, word, sketch, plan, article, note, or another
18 Jammeh, Saikou, and Satang Nabaneh “A Case for Constitutional Guarantees for Freedom of the Media in The Gambia.”
In The Gambia in Transition: Towards a New Constitutional Order, edited by Satang Nabaneh, Adem Abebe, and Gaye Sowe. (Pretoria: University of Pretoria Law Press, 2022), 66.
19 Committee to Protect Journalists, Attacks on the Press in 2006 – The Gambia, February 2007, available at:
https://www.refworld.org/docid/47c56739c. html [accessed 26 February 2023]
20 Official Secrets Act of The Gambia. Available at: https://security-legislation.gm/document/official-secrets-act/ (accessed on 21 March 2023)
21 Gambian activist 'died in detention' - Amnesty International. Available at: https://www.bbc.com/news/world-africa- 36064276 (accessed on 21 March 2023)
document” that may be valuable to an adversary is in violation of Section 3 of the Official Secrets Act. Without intending to break the law, journalists covering security concerns risk breaking the Official Secrets Act.
Contentious issues as regards the constitutional right to protection from deprivation of property as outlined in Section 22 of the constitution occupied an important position in The Gambia’s governance space. With a view to safeguarding and protecting the right of the people to their properties, the constitution provides elaborate and detailed requirements that need to be met before one’s right can be subverted. The state shall only go against this right if the act is, among other things, “necessary in the interest of defense, public safety, public order, public morality, public health, town and country planning, and the utilization of any property to promote public benefit.
In the event that the constitutional requirements are not met by not using the “property in the public interest, or for the public purpose for which it was taken or acquired, the person who was the owner immediately before the compulsory taking or acquisition, as the case may be, shall be given the first option of acquiring that property, in which event he or she shall be required to refund the whole or such part of the compensation as may be agreed upon between the parties thereto; and in the absence of any such agreement such amount as shall be determined by the High Court”.
Despite this, former President Yahya Jammeh used state security to undermine the rights of the people. No one could predict the next step in his unconstitutional affair. Yahya Jammeh, a lieutenant who was 29 years old, ousted the government of the first president Jawara in July 1994. Jawara had been in charge since the nation's independence in 1965.
Although The Gambia received praise from other nations for upholding democratic values and respecting human rights, by the 1990s, many Gambians had grown impatient with the nation's lack of progress. Jawara's administration had come under increased scrutiny for allegations of corruption.22
After the end of the twenty-two years of autocracy through a fair and transparent election that brought in a new president in December 2016, Gambians and the international community started gaining hope of a new phase of democratization and respect for the dignity, rights, and freedom of the people. No sooner had this been anticipated than a festering wound of national political shenanigans again gained traction. The contentious case of Neneh Freda Gomez on her constitutional right to property against the state stands out.
Neneh Freda Gomez is the Country Director of The Global Home of Medical Mission (GHOMM), a charitable company registered in The Gambia as an International Non- Governmental Organization (NGO) which was unlawfully seized in 2010 by the government during the autocratic rule of Yahya Jammeh. After the ousting of the dictator in 2016, the organization, through its representative, tried to claim back its constitutional right to protection from deprivation of property. She was arrested jointly with a colleague several times, but the court later discharged them after the government failed to bring substantial evidence.
The duo sued the government at the High Court which has the subject-matter jurisdiction to hear and interpret the constitutional rights in the 1997 Constitution of The Gambia. The court ruled that their arrest was illegal, and the government violated their rights and ordered the government to pay a fine to the plaintiffs.23 Despite the court’s ruling, the government still
22 Maggie Dwyer, “The Role of Unpredictability in Maintaining Control of the Security Forces in the Gambia,” African Affairs (February 2023): 7. DOI: https://doi.org/10.1093/afraf/adad002
23 Awa Macalo, “Neneh Freda Gomez Rearrested,” The Standard, July 6, 2022. https://standard.gm/neneh-freda-gomez- rearrested/. Accessed on 1 March 2023.
bars the duo from their constitutional rights to property as enunciated in section 22 of the constitution.24
c. Constitutional Rights in Indonesia
In the past, Indonesia had adopted the idea of a rechtsstaat, or a government founded on the law, as both legal scholars and the constitutional definition had indicated. A rechtsstaat was first utilized in civil law, which was later disseminated throughout contemporary Indonesia because of colonization by the Dutch. One of the key components of rechtsstaat is the protection of human rights, which the government demonstrates through looking into violations of constitutional rights. Such an infringement on fundamental rights is not a recent issue. Nonetheless, following the 1999 – 2002 constitutional amendment, Indonesia has accommodated the system's inadequacies in upholding and promoting constitutional rights through the court.25
Although human rights are classified as constitutional rights, they do not have the same meaning as citizens’ rights just because they are mentioned in the constitution. Human rights are inherent in every individual, making them applicable to all residents, including citizens and non-citizens. A dichotomic approach from human rights to constitutional rights points out that the state’s people are the only ones entitled to its constitutional rights. So, human rights are more expansive than just constitutional rights.26
Important concerns immediately addressed by modern constitutionalism are constitutional rights and liberties. Every citizen must practice it in their personal and social lives, and the government also requires it as the major stakeholder in a hierarchical state system. In accordance with the Pancasila concept, Indonesia is a state that fosters respect for individual liberties. Every Pancasila principle demonstrates respect for every unique human being. This indicates that Pancasila places a high value on and defends national unity. Hence, Pancasila serves as a national unifier as well. The fact that the principles of Indonesian unity are mentioned simultaneously also demonstrates the Indonesian people's diversity.27
This is affirmed by the fact that Indonesia is a multilingual and multicultural country, and there are more than 7,000 wide ranges of dialects spoken in the local languages by different ethnicities.28 As a result, each concept needs to be fully implemented. This is because every contemporary nation has been motivated to adopt constitutional systems by the need to properly protect the rights of the people and control the efficient exercise of state authority.
Constitutionalism is deemed to be essential for modern nations since it is thought that a constitution is the greatest means of achieving this goal.
According to John Adams’ contention on “government by law, not by men”. This implementation can be realized and effective through the constitution since it is understood to
24 Yankuba Jallow, “Global HOMM Still Struggling to Take Over Their Property from the State.” FOROYAA, October 12, 2021. https://foroyaa.net/global-homm-still-struggling-to-take-over-their-property-from-the-state/. Accessed on 1 March 2023.
25 Standy Wico, Michael Michael, Patricia Louise Sunarto, and Anastasia Anastasia, “Constitutional Complaint in Indonesia Through the Lens of Legal Certainty,” Indonesian Journal of Law and Society Vol.2 No.1 (2021): 60.
DOI: https://doi.org/10.19184/ijls.v2i1.21449
26 Harisman Harisman, “Protection of Human Rights in the Amendment of the 1945 Constitution of The Republic of Indonesia,” In Proceedings of the 1st International Conference on Law and Human Rights 2020, (2021): 384–89. DOI:
https://doi.org/10.2991/assehr.k.210506.050.
27 Palmawati Taher, “Pancasila as The Basis of The State Unity of The Republic of Indonesia,” Pancasila and Law Review Vol. 2 No. 2 (2021): 135. DOI: https://doi.org/10.25041/plr.v2i2 .2449
28 Firman Parlindungan, Irfan Rifai and Afida Safriani, “The representation of Indonesian cultural diversity in middle school English textbooks,” Indonesian Journal of Applied Linguistics Vol. 8 No. 2 (September 2018): 290. DOI: doi:
10.17509/ijal.v8i2.13276
be the expression of the fundamental law that even state agents must abide by.29 The 1945 Constitution's articulation of Pancasila as a national life philosophy embodies the ideal of Indonesian existence. Pancasila, the national life vision and ideology, is a source of relevant provisions that should serve as an inspiration and be applied to all legal rules in Indonesia.30 The Constitution sets forth the highest standard and rules for how individuals should behave in public life.
As a result, after its amendments, the 1945 Constitution of the Republic of Indonesia is regarded as a type of universal collective agreement that “all the people of Indonesia” have the right to sovereignty. This has the effect of establishing it as the supreme law governing how the people's sovereignty would be exercised in the country. One of the guiding ideas supporting democratic constitutional states is what is known as the supremacy of the constitution. In this sense, it is asserted that the Constitution serves as the main source of the rights of the people.
2. Indonesia’s Constitutional Court
Constitutional Court is a constitutional institution provided for in Article 24C of the 1945 Constitution of Indonesia jointly with Article 10 of Law Number 8 of 2011 with the jurisdiction to:
a. Make judicial review by examining laws as to whether they are in line with the 1945 Constitution;
b. Decide disputes over authorities of state institutions;
c. Decide on the dissolution of political parties; and d. Decide on disputes as regards General Election results.
The Constitutional Court also has an obligation to decide on the view of the House of Representatives regarding the claim that the President or Vice President has violated the law and, or the view that the President or Vice President meets the requirements of the offices.
This is provided above in its subject-matter jurisdiction.
The constitution provides the original meaning of all laws and regulations pertaining to a state, which are recognized as the norms of a state's political and legal system that are documented in writing and include rules, institutions, and a division of authority as well as rights and obligations. The purpose of establishing a constitution is to provide and secure good and just democratic life. Therefore, to improve the quality of democracy in Indonesia, reforms, including establishing the Constitutional Court institution, were made and tasked with upholding the Republic of Indonesia's 1945 Constitution as the highest standard in the country. The Constitutional Court is an institution with significant power within its walls. It adopts power in the form of a constitutional complaint, which is a way of using the law to defend individuals' constitutional rights under a system of government with the power to adjudicate them.31
Being the single custodian and interpreter of the Constitution, the Constitutional Court of Indonesia is created to uphold the Constitution's supremacy, ensure constitutional compliance, and provide citizens with constitutional justice in the governance of Indonesia. Nonetheless, the reality of Indonesia's state administration demonstrates that the Constitutional Court's
29 Adhe Ismail Ananda, “Constitutionalism Concept in Implementation of Indonesian State Administration,” Jurnal Daulat Hukum Vol. 4 No. 2 (2021): 124.
30 Lulus Udjiwati, “The Implementation of Pancasila as a Philosophical Basis of Exercising Suffrage,” Surakarta Law And Society Journal Vol. 2 No. 2 (February 2020): 88.
31 Didik Suhariyanto, “Protection of Citizens’ Constitutional Rights from the Authority of the President in Indonesia,”
Eduvest – Journal of Universal Studies Vol.2 No.12 (2022): 2684-85. DOI: https://doi.org/10.36418/eduvest.v2i12.692
judicial review judgment is still being disregarded or ignored.32 The contemporary court structure has three key judicial power: authority, autonomy, and accountability.
Judges must exercise their authority with the independence and impartiality they uphold to prevent judicial tyranny. To meet the demands of those seeking justice, a state institution should also oversee the independence and impartiality of judges, thereby holding the court accountable.33 Constitutional justice, beyond the principle of natural justice, is the area of law concerned with the interpretation and application of a nation's constitution is known as constitutional justice. It involves checking to see if laws, regulations, and government activities align with the constitution and do not infringe on citizens' rights and freedoms.
To prevent judicial tyranny, courts must exercise their authority with the independence and impartiality they uphold.34 Nonetheless, a surge of rulings shows varied trends and approaches to the constitution's cornerstone. The court may exercise judicial activism in each judgment or maintain restraint. Although judgments that follow these patterns must be accepted as true and put into action in practice, they are not final in the area of law, particularly as science develops.35 Article 24 (1) of the 1945 Constitution of Indonesia provides for the autonomy of the Constitutional Court that “The judicial power shall be independent and shall possess the power to organize the judicature in order to enforce law and justice”. The judiciary power's most distinguishing quality is independence. First, judicial authority does not depend on other branches of government involvement. Second, judicial power's relationship to other branches of government is more evident in the division of power than the diffusion of power.36
Idealistically and theoretically, this ought to be its state but practically, it is not always so.
Written provisions do not automatically guarantee the autonomy of institutions. The Constitutional Court's existence, as the state institution designated by the 1945 Constitution to pass final decisions at the first and last stage on state administration issues, is a logical outcome of the new state government system that the 1945 Constitution was to create after a series of amendments. These fundamental principles of the new state governance system, i.e., a democratic state based on the constitution, are meant to transform Indonesia into a democratic constitutional state.37
The organization of judicial power must protect independence, which is a very important question of principle. Judges must be devoid of intervention, intimidation, or constraint from other realms of State Power, both directly and indirectly, to uphold independent judicial power. Also, there are no conflicts of interest between the judiciary and its subordinates, superiors, or other parties. Judges should only resolve matters based on fairness, the law, and their moral convictions.38 According to Article 23 (1) of Law Number 7 of 2020 about the
32 Ismail Hasani, Halili Halili and Vishalache Balakrishnan, “Undelivered Constitutional Justice? Study on How the Decisions of the Constitutional Court of the Republic of Indonesia are Executed,” Jurnal Civics: Media Kajian Kewarganegaraan Vol.19 No.1 (2022): 45. DOI: 10.21831/jc.v19i1.48378
33 I Made Pria Dharsana, “Strengthening the Role of the Judicial Commission through Innovative Strategies to balance Independence and Impartiality with Judge Accountability,” International Journal of Multicultural and Multireligious Understanding Vol. 8 No. 10 (2021): 332. DOI: http://dx.doi.org/10.18415/ijmmu.v8i10.2997
34 Ibid
35 Febriansyah Ramadhan and Ilham Dwi Rafiqi, “Study of Constitutional Court Decisions cancelling All Norms in the Law”
Legality: Jurnal Ilmiah Hukum Vol. 29 No. 2 (2021): 287.
36 Rahayu Prasetianingsih, “Judicial Activism in Indonesia: Constitutional Culture by the Constitutional Court” PETITA:
Jurnal Kajian Ilmu Hukum dan Syariah Vol. 5 No. 2 (2020): 165. DOI: https://doi.org/10.22373/petita.v5i2.106
37 Luthfi Widagdo Eddyono, “The Constitutional Court and Consolidation of Democracy in Indonesia,” Jurnal Konstitusi Vol.15 No.1 (2018): 9. DOI: https://doi.org/10.31078/jk1511
38 Farah Syah Rezah and Andi Tenri Sapada, “The Independence and Accountability of the Constitutional Court in the Constitutional System in Indonesia,” SIGn Jurnal Hukum Vol.4 No.2 (2023): 253. DOI:
https://doi.org/10.37276/sjh.v4i2.166
Third Amendment to Law Number No. 24 of 2003 Concerning the Constitutional Court, a judge of the Constitutional Court can be honorably dismissed on the grounds that he or she:
a) passed away;
b) resigned at his or her requested submitted to the Chief Justice of the Constitutional Court;
c) has reached the age of seventy years;
d) deleted; or
e) physically or mentally ill continuously for three months so that he or she cannot perform their duties as evidenced by a doctor’s certificate.
According to section 2 of Article 23 of Law No. 7 of 2020 about the Third Amendment to Law Number 24 of 2003, a judge of the Court may be dismissed dishonorably on the grounds that he or she:
a) is sentenced to imprisonment based on a court decision that has obtained permanent legal force for committing a criminal offense punishable by imprisonment;
b) committed despicable acts;
c) has not attended the trial which is their duty and obligation for five consecutive times without a valid reason;
d) violates an oath or promise of office;
e) deliberately prevents the Constitutional Court from giving a decision within the time referred to in &B paragraph (4) of the 1945 Constitution of Indonesia;
f) violates the prohibition of concurrent positions as referred in Article 17;
g) no longer qualifies as a constitutional judge; and/or
h) violates the Code of Ethics and Code of Conduct for Constitutional Judges.
Public view of the Constitutional Court's autonomy was further bolstered by the House of Representatives action, which publicly sacked the judge based on political concerns. To avoid harming and eroding public confidence in the Constitutional Court, the House of Representatives should be more actively involved in determining the internal positions of other areas of state power. As a result, this episode can create a negative precedent for Indonesia's legal system. Since they see the Constitutional Judges as part of them, institutions that nominate them to have the power to replace them at any time.
The Republic of Indonesia Presidential Decision Number 114/P of 2022 on Dismissal and Appointment of Constitutional Judges Proposed by the House of Representatives confirmed this poor precedent. In accordance with Presidential Decision Number 114/P of 2022, the President nominated a Constitutional Judge on November 23, 2022. By this occurrence, the President has verified and supported the general public's perception that the House of Representatives has the power to remove a Constitutional Judge outside of the Constitution arbitrarily.
The House of Representatives has broken the ideals of Indonesia's constitutional system.
On the contrary, the President neglected to mention the appointment of a new Constitutional Judge and even made Presidential Decree Number 114/P of 2022 in this regard. The President has the authority to turn down demands made by the House of Representatives since they are equal partners in the exercise of government power. In this instance, the demand was against the constitutional judge appointment process as well as the idea of judicial power independence.
The Constitutional Court’s endeavor to add checks and balances to Indonesia's constitutional structure merely led to a protracted battle that the House of Representatives swiftly torpedoed. The Constitutional Court's fundamental independence as the executor of
judicial power has eventually been compromised. The Constitutional Court is presently a judicial body that only has the authority to recommend judges to fill its positions under the other branches of state power.
C. Conclusion
In a democratic society, a weak or compromised judicial system exposes citizens to tyrannous acts of abuse of rights, especially enforcement of constitutional rights. Both The Gambia and Indonesia are constitutional democratic states with the former dealing with the enforcement of the constitutional rights of its citizens through the High Court and the latter via the Constitutional Court. Both countries have to a certain extent, undermined the constitutional rights of their people, with The Gambia, inter alia, refusing to obey the High Court orders as regards constitutional rights. Indonesia is undermining the autonomy of the Constitutional Court by dint of the President’s termination of the service of a justice of this court through the ingenuity of the House of Representatives.
This establishes the position that the inclusion of legal provisions in a legal document does not make an institution effective ex cathedra. As evidenced by its unique aim and contents, defending the Constitution is a particular legal and political endeavor. Constitutional defense aims to safeguard the people’s sovereignty, the political system of the country, the state's legal base, and the timeless and lofty principles in society making it far more noble and profound than conventional law enforcement efforts. The issues covered by constitutional defense extend beyond just legal to include political actions. Therefore, the constitutional defense mechanism of both The Gambia and Indonesia must be comparatively autonomous from other organizations exercising the legislative, executive, and judicial functions to carry out such activities. Establishing a separate constitutional defense mechanism will undoubtedly increase individuals’ and States’ respect for these constitutions and the law. The constitutional rights guaranteed by these constitutions will make fresh and significant strides.
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