LRWD I N D O N E S I A
Law Reform Weekly Digest
Edition 01/January/2015
In This Issue
Constitutional Court
“Your Weekly Updates on Indonesian Law Reform”
Constitutional Court decisions on the Societal Organization Law
A New Mechanism in Constitutional Judge Selections
Supreme Court
The Supreme Court’s Incorrect Step Regarding Circular Letter No. 7/2014
Supreme Court
The Supreme Court’s Incorrect Step Regarding Circular Letter No. 7/2014
A step from the Supreme Court in issuing Circular (Surat Edaran) No.
7/2014 on the Request for Submission of Case Reviews is incorrect and can potentially cause legal problems. The Supreme Court Circular Letter is also incorrect when arguing that the request for a case review in criminal cases should be restricted only once, as outlined in point number 3. Such a norm has previously has been declared not having a force of law by Ruling of the Constitutional Court No. 34/PUU-XI/2013.
The Supreme Court later stated that the Ruling of the Constitutional Court does not necessarily remove the norm of laws relating to case reviews in reference to Article 24 (2) of Law No.
48 Year 2009 on Judicial Power and Article 66 (1) of Law No. 5 Year 2004 on the Supreme Court. Both the articles should be seen as basis for the submission of case reviews in all cases, with the exception of criminal and military cases since both are regulated in Law No. 8 Year 1981 on the Criminal Procedure Code. The
request for case reviews in criminal and military cases was previously restricted to only once according to Article 268 (3) of the Criminal Procedure Code and had already been annulled by the Constitutional Court.
The Supreme Court’s Circular is not a product of regulation, but serves as an administrative instrument for internal purposes only and is aimed to provide further guidance relating to court administration. Circulars clearly could not override the the Constitutional Court Ruling or form a new legal norm like a regulation. Even the Supreme Cour t through their Jurisprudence (Ruling No. 249/1967 P.T Perdata and Ruling No. 105k/sip/
1968) stated that Circulars could not override a norm of a law (regulation).
Circular No. 7 Year 2014 could potentially cause legal problems for the Court, law enforcement officials, and justice seekers. Therefore, the Supreme Court should revise the Circular immediately for the sake of certainty and justice of the law. (MSG)
Constitutional Court
Constitutional Court decisions on the Societal Organization Law
There are two Constitutional Court decisions on the Societal Organization Law that were announced on December 23, 2014. They are Decision on the Case No.
82 Year 2013 submitted by Muhammadiyah Association and Decision on the Case No. 3 Year 2014 submitted by various NGOs and individuals.
In essence, the Court held that putting details of constitutional norm on freedom of association could be seen as limitation to the freedom, however, the Indonesian Constitution provides that all human rights provisions shall be implemented in relation with the duty to accept the restrictions established by law for guaranteeing the recognition and respect of the rights and freedoms of others as provided in Article 28J of the Constitution. The Court views the Societal Organization Law as part of this provision and acknowledges that the detailed regulations in the law is a limitation to freedom, but the law is not excessive in nature and, thus, can be seen as the detailed provisions in relation to Article 28J of the Constitution. Therefore, the Law is constitutional.
However, there are provisions in the Law that are too detailed so that they will harm the principle of freedom of association. They are provisions regarding the goals of societal organizations; types of organizations according to the number of members and locations of the organizations and the registration procedures for such organizations; the way to select personnel for the organization structure; the rights and obligations of the members of organizations; the government’s role to empower societal organizations; and prohibition to use of the Indonesian flag and symbol for the organization’s flags and symbols.
Indonesian Constitutional Court Decisions are final and binding.
The details of the decisions are as follows:
1. On Article 5 regarding the 8 goals of Societal Organizations, The Court ruled that the 8 goals must be understood as cumulative and/or alternative (putting “and/or” instead of “and”). In the Indonesian Constitutional Court’s term, this provision is
“conditionally unconstitutional,” which means it is constitutional so long as you understand it as Court ruled how to understand it. [Decision 82]
2. Article 8 on the types of societal organizations based on the administration level of the government (national, provincial, and district) is unconstitutional
because it limits the work of societal organization and, thus, a violation to the principle of freedom of association. If the issue is registration, the court held, in principle, societal organizations can choose whether or not to register with the government.
Registration is about services by the government, if a societal organization opted to register, it can register at any level it prefers. When it comes to services provided by a particular level of government (national, provincial, or district), then the organization might not be able to enjoy the services because of the place of registration, but the government cannot declare that an organization is illegal based on the registration. [Decision 82]
3. Because the provision on the typology of societal organizations is unconstitutional, then related provisions are also unconstitutional: Article 16 section (3), Article 17, and Article 18 on the registration procedures of and data collection on societal organization without legal entity; and Article 23, Article 24, Article 25 on the membership requirements on the typology of societal organizations. The Court allows the Details of the registration procedures to be regulated in regulations under the Law (e.g. Government Regulation).
[Decision 82]
4. Article 29 section 1 on the way to select the personnel for the organization structure, the Court ruled that it is conditionally unconstitutional. The provision must then be read that the selection shall be done “through consultation and unanimity (musyawarah dan mufakat) or through voting (dengan suara terbanyak).” Originally the article provided that the selection can only be done by consultation and unanimity. [Decision 3]
5. Article 34 regulating that the rights and obligations of members are the same and shall be regulated in the articles of associations is unconstitutional. [Decision 82]
6. Article 40 on the government’s role to empower societal organizations in order to increase their performance and guard their sustainability is unconstitutional. [Decision 82]
7. Article 59 on the prohibition for societal organizations to use flags or symbols similar to the flag and symbol of Indonesia is unconstitutional.
[Decision 82] (BS)
President Joko Widodo officially inaugurated two constitutional judges; I Dewa Palguna and Suhartoyo.
They replace two constitutional judges who have already resigned; Hamdan Zoelva and Ahmad Fadlil Sumadi. The new constitutional judge will be officiated for five years, as regulated by Article 22 of Law No. 24 Year 2003 on the Constitutional Court.
Based on Article 24C paragraph 3 of the Indonesia Constitution, the Constitutional Court consists of nine (9) justices, originating from the three state branches of power, namely the President as the executive, the House of Representatives as the legislative, and the Supreme Court to represent the judicial branch. Each of these branches has a duty to select three constitutional judges. The selection process belongs to internal mechanism, but according to Article 19 of Law No. 24 Year 2003, the selection mechanism shall be transparent and participatory.
Constitutional judge selections become a national issue since the head of the Constitutional Court was arrested by the Corruption Eradication Commission (Komisi Pemberantasan Korusi/KPK). Some have an
opinion that the case was the effect of constitutional judge selections that were held behind closed doors and did not involve external parties. The public urged all branches that the election process should be held transparently.
Thereafter, the House of Representatives and President adjusted the selection process by forming a selection committee, which consists of public figures, academicians, and former constitutional judges.
However, such an initiative was not taken well by the Supreme Court, who still practice the selection process in similarly to before; resulting in the selection of Suhartoyo as constitutional judge.
The Supreme Court should have a better understanding on the importance of an open and accountable selection of constitutional judges, implementing an accountable and transparent selection. In addition, the implementation of the selection of judges in an accountable and transparent manner is mandated by the law. Therefore, all branches of power should comply accordingly. (FN) Constitutional Court
