Disavowing Constitution

Not all rulings of the Constitutional Court have been obeyed by lawmakers although, in fact, according to the 1945 Constitution, the Constitutional Court rulings are final and binding.

KOMPAS/WAWAN H PRABOWO

The Constitutional Court’s panel of judges holds a plenary meeting at the court in Jakarta on 28 Jan. 2020. The meeting was held to discuss the court’s performance in 2019 to exercise transparency and accountability. From the time of its establishment in 2003 until December 2019, the court has received 3,005 cases: 1,317 judicial reviews, 982 regional election disputes and 671 legislative election disputes, among others.

Since it was established in 2003, with the issuance of Law No. 24 of 2003, until December 2019, the Court has received 3,005 requests, the majority of which, 1,317, were the requests for judicial reviews. The Constitutional Court also issued rulings to settle disputes related to the results of regional head elections, legislative elections and presidential elections, as well as disputes over the authority of state institutions. By December 2019, the Court had completed 2,849 cases.

From the requests that have been settled, as many as 397 cases or about 13.93 percent were ruled in favor of the plaintiffs. Of the rest, 1,005 cases (45.81 percent) were rejected, 1,004 cases (34 percent) were deemed unacceptable, 60 cases (2.11 percent) were dropped, 171 cases (5.75 percent) were withdrawn, 25 cases (2 percent) halted by pretrial rulings, 11 cases (1 percent) were deemed not under the authority of the Constitutional Court and 30 cases were still being investigated.

From the research conducted by three lecturers at Trisakti University in Jakarta, of the 109 rulings of the Constitutional Court, which were made from 2003 to 2018, 54.12 percent, or 59 rulings, were complied with by all parties. In contrast, six rulings (5.5 percent) were partially complied with, 24 rulings (22.01 percent) were not complied with and 20 rulings (18.34 percent) had not been clearly identified (Kompas, 29 to 30 Jan. 2020). Although there are not many rulings of the Constitutional Court that have not been complied with, it becomes a question because the Constitution guarantees Constitutional Court rulings to be final and there is no legal procedure to change them.

Article 10 Paragraph (1) of Law No. 8/2011, which amends Law No. 24/2003, ensures that a Constitutional Court ruling is final, meaning that it immediately gets permanent legal power once it is pronounced. There is no legal procedure that can be taken. The nature of the Constitutional Court ruling is final and binding.

Kompas/Wawan H Prabowo

The Constitutional Court’s panel of judges presided over by Aswanto (center) holds a hearing on the judicial review of Legislative Bodies Law at the court in Jakarta on 21 Jan. 2020. The plaintiff claimed the lawmaking process breached the prevailing procedures stipulated in the House of Representatives rules. The law was neither listed in the National Legislative Program (Prolegnas) 2015-2019 nor the Priority Prolegnas 2019.

Chief Justice Anwar Usman rejoiced in the findings of the three lecturers, which show that the majority of the Constitutional Court rulings were complied with by lawmakers, namely the government and the House of Representatives. The rulings that were not complied with were all related to judicial reviews. However, in front of President Joko Widodo and House Speaker Puan Maharani, on 28 Jan. 2020 the chief justice of the Constitutional Court was also concerned with the fact that there is non-compliance with Constitutional Court rulings. He called it a denial of the Constitution that contradicted the rule of law. The Constitution means nothing if it is not obeyed.

Noncompliance to Constitutional Court rulings did not entirely illustrate the negative side of lawmakers. If the Constitutional Court ruling directly states that a law, or a paragraph, or an article is unlawful, it is certainly easier to implement. However, if the court ruling changes an article or paragraph in a law, or changes the legal norms that have been in effect, there is a process that must be followed by lawmakers, including involving the community. Of course this will take time.

Openness between state institutions in this legislation is important so that an attitude of mutual trust and respect for each other\'s authority is built up, instead of negating each other.