Indonesian Constitutional Court Between Judicial Activism and Judicial Terrorism
Dosen Fakultas Hukum Universitas Indonesia (FHUI), Heru Susetyo, S.H., M.Si., LL.M., Ph.D., menerbitkan Book Chapter “Indonesian Constitutional Court Between Judicial Activism and Judicial Terrorism”, yang merupakan bagian dari book chapter pada Center for CPG Series of Comparative Constitutional Law, Politics and Governance, Constitutional Jurisprudence, Henning Glaser, ed, 2016.
Berikut Conclusion Indonesian Constitutional Court Between Judicial Activism and Judicial Terrorism:
In comprehending judicial activism made by Indonesian Constitutional Court, Mietzner claimed that the Court has made a significant contribution to Indonesia’s transformation from a conflict-ridden, politically unstable country into a consolidating democracy. By establishing institutional mechanisms of political conflict resolution, the Court provided an avenue for Indonesia’s elite to settle its disputes by judicial means rather than through mass mobilization. In doing so, the Court ensured that Indonesia moved closer to fulfilling one of Linz and Stephan’s main conditions for consolidating a democracy: the settlement of conflicts within the procedural framework of the existing democratic system.56
Donald Horowitz claimed that the constitutional-court format may be more attractive than the ordinary supreme-court format, not merely because it has more adherents among organizations and individuals involved in international constitutional counseling, but because existing supreme courts may contain sitting judges who are still attached to the old regime or are in other ways biased toward one or another of the major democratic antagonists. Another potent reason to create a new constitutional court is the common failure of the existing courts to develop the rule of law in ways that support democratic institutions. That certainly was the rationale for a fresh start in Indonesia and some other countries, where sitting judges were frequently accused of corruption and incompetence. In such cases, the creation of a wholly new structure, with new personnel, is regarded as essential to the success of the tasks with which the court is to be entrusted. A powerful confluence of forces thus supports the creation of constitutional courts. Those courts can perform important functions in the consolidation and maintenance of democratic government. They provide a site for the enforcement of human rights and for the delineation of the powers of governmental bodies. By adjudicating constitutional questions and enforcing constitutional provisions, constitutional courts make the constitution a living document that shapes and directs the exercise of political power, rather than merely a symbolic or aspirational collection of fine phrases. They can contribute, in other words, to making a new regime not merely a democracy but a Rechtsstaat: a state governed by law and respectful of its citizens.
Henni Muchtar believed that the extension of a Constitutional Court is part of responsive law. The MK has accommodated public needs and wants by creating and fighting for substantive justice.
Judging from the abovementioned discussions, the author asserts that the MK has committed judicial activism through its progressive decisions. It may meet the idea of consolidated democracy (presented by Linz and Stepan) and espouses responsive law (initiated by Nonet and Selznick), yet it also can be regarded as judicial terrorism by other parties. Some decisions made by MK have created legal uncertainty and has turned the MK into a super body which is uncontrollable by other state agencies.
To accommodate such needs (reaching substantive justice but still keeping checks and balances), the ten corridors suggested by former Chief Justice Mahfud MD are worth investigating: (1) In judicial review processes, the MK must not produce a verdict which has a character of regulation; (2) The MK must not conduct ultra petita; (3) In producing a verdict, the MK should not use laws/acts as grounds to annul other laws. The MK must treat the Constitution as the grounds. (4) The MK should not intervene with legislative bodies when the authority of legislative bodies were provided by the Constitution; (5) In producing a verdict, the MK must not depend on theories excluded by the Constitution; (6) The MK must not violate the principle of nemo judex in causa sua; (7) The justices of the MK must not give any comments or opinions related to verdicts or ongoing cases reviewed by MK; (8) The Justices of the MK must not provoke or espouse people to bring their cases to the MK; (9) The Justices of MK must not proactively offer themselves to be mediators in political disputes between state agencies; (10) The MK must not give opinions about the existence of the Constitution, the pros or cons of the Constitution, or whether the Constitution must be retained or amended.
Book Chapter, selengkapnya dapat dilihat di sini.
53 Ijtihad derives from Islamic term, meaning (in Islamic law) the use of reason to
arrive at a knowledge of truth in religious matter, see http://dictionary.
55 See Muchtar, “Paradigma Hukum Responsif,” p. 170.
56 See Mietzner, “Political Conflict Resolution and Democratic Consolidation,”.
54 See Muchtar, “Paradigma Hukum Responsif,” p. 166.