Apr 25, 2015

The source of the Indonesian Constitutional Court's power is to be found at the most basic legal level, in the text of the Indonesian Constitution.

Article 24C(1) of the Indonesian Constitution reads:

The Constitutional Court shall possess the authority to try a case at the first and final level and shall have the final power of decision in:

reviewing laws against the Constitution;

determining disputes over the authorities of state institutions whose powers are given by this Constitution;

deciding over the dissolution of a political party; and

deciding disputes over the results of general elections.

It confers four distinct jurisdictions upon the Court.

Academic thinking has focussed mostly on the first head of power, reviewing laws. Professor Tim Lindsey and Associate Professor Simon Butt's work, The Constitution of Indonesia: A Contextual Analysis asserts in Chapter 5, "Under Article 24c(1) of the Constitution, the Constitutional Court can only assess whether national statutes (undang-undang) - that is laws enacted by the DPR are consistent with the Constitution. It cannot review the constitutionality of other types of laws or actions of government". The Chapter then has a small section on the disputed returns jurisdiction but ignores completely if not actively discounts the other two heads of power in its analysis of jurisdiction. This is a serious oversight or omission in any analysis of the Court's powers. Actions under this heading suffer from the serious practical problem that under the Court's jurisprudence invalidations of legislation are only prospective - they cannot challenge a past enactment at its source in a way which would invalidate a death sentence given under an existing law.

A cursory look at the Constitutional Court's own website will reveal a number of case streams in its list. The most common type of case to be found in the list is the "PUU" case, or a review of legislation (Pengujian undang-undang) with a total of 1186 cases since 2003. By contrast only 71 electoral cases and only 35 SKLN (Sengketa Kewenangan Lembaga Negara) cases determining the authority of state agencies. Nevertheless, the decisions and orders of the Constitutional Court include decisions made on the application of individuals challenging instances of the exercise of presidential power. 

The constitutional language conferring that jurisdiction reads, "memutuskan sengketa kewenangan lembaga negara yang kewenangannya diberikan oleh Undang-Undang Dasar", while article 61 of the statute regulating the processes of the Constitutional Court (Australian Lawyers, think of the Judiciary Act), states:

"(1) Pemohon adalah lembaga negara yang kewenangannya diberikan oleh Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 yang mempunyai kepentingan langsung terhadap kewenangan yang dipersengketakan.

(2) Pemohon wajib menguraikan dengan jelas dalam permohonannya tentang kepentingan langsung pemohon dan menguraikan kewenangan yang dipersengketakan serta menyebutkan dengan jelas lembaga negara yang menjadi termohon."

"( 1 ) The applicant is a state institution whose authority is granted by the Constitution of the Republic of Indonesia Year 1945 who has a direct interest in the disputed authority . ( 2 ) The applicant must clearly describe the application of direct interest and outlining the applicant disputed authority and to clearly state institutions to the respondent."

The standing of applicants is thus purported to be restricted by the Act to the institution whose power is in question. Let me just repeat that in a different way - the constitution grants power to the Constitutional Court to review the constitutionally granted authority of state institutions, but the subsidiary law says the only person who can apply to the Court is the entity whose constitutional authority is in question.

Now clemency is a power granted to the President by article 14(1) of the Indonesian Constitution. So the immediately apparent effect of the Constitutional Court law is to say that the only person who could question the exercise of the Presidential power is.....the President!

Now the lawyers  and controllers of large scale capital amongst us will be getting a bit edgy about this state of affairs and pulling out their Joseph Heller books about now and off to buy eggs in Malta rather than waste their time trying to understand this asian country supposedly emerging from dictatorship to democracy.

In case SKLN 27 of 2008 a dissenting view was expressed that, "Though there is not one word in the sentence Article 24C paragraph (1) of the 1945 Constitution which refer to the dispute must be between state institution and equivalent state agency and both called by the 1945 Constitution".

It is also readily apparent that an applicant who is a state agency with powers not granted by the constitution (but perhaps by a statute) might wish to challenge a power or scope of a constitutional agency purporting to exercise constitutional power. In the history of the common law such moves have been facilitated by a fiat of the constitutional entity with standing. However there is no such restriction in the Constitution, only in the Act. I digress.

So, for example in orthodox thinking on standing regarding the case of clemency the only entity with standing to dispute a clemency decision of the president would be the Supreme Court seeking to enforce the requirement that the President consider its view before deciding clemency. The Supreme Court is of course the institution which has awarded or confirmed the death sentence, so this approach is not looking too good for the condemned. Time for what Lubis calls - out of the box thinking.

At this point I have not yet gone off to visit the soldier in white. Why not? Well, article 26 of the constitution mentions residents as a constitutional entity or construct. "Residents shall consist of Indonesian citizens and foreign nationals living in Indonesia." and article 28A, "Every person shall have the right to live and to defend his/her life and existence". A constitutional right or authority.

On a plain textual reading in a death penalty case there is a Constitutional right to life granted to every person. Residents are also constitutionally recognised agency with constitutionally originating authority.

In rejecting Chan & Sukamaran's legislative review petition in 2007 on grounds of legal standing the Constitutional Court noted, quite quaintly:

"Hukuman mati tersebut jelas sangat merugikan kepentingan dan hak konstitusional para Pemohon yaitu hak para Pemohon untuk hidup yang dijamin dan dilindungi oleh konstitusi, yaitu UUD 1945"

"The death penalty is obviously very detrimental to the interests and constitutional rights of the petitioners to live, guaranteed and protected by the 1945 constitution"

So what is the case which can be brought before the constitutional Court? It is a direct challenge to the death sentence issued by the Courts and the refusal of clemency by the President which conflicts with the constitutionally granted authority of every person (and residents are a constitutionally created entity) to live and to defend his/her life and existence. The respondents are the Supreme Court or Denpasar District Court which purported to exercise a constitutionally derived judicial power under article 24A of the constitution, and the President with respect to president's clemency power under 14(1) of the constitution in conflict with a person's right to life under article 28A of the Constitution and their right to raise a family under 28B of the Constitution.

Article 28I of the constitution provides

"The rights to life, freedom from torture, freedom of thought and conscience, freedom of religion, freedom from enslavement, recognition as a person before the law, and the right not to be tried under a law with retrospective effect are all human rights that cannot be limited under any circumstances."

For those of you who have read the Constitutional Court's decision in 2-3PUU-V/2007 you will know that the Court addressed issues of the role and legality of the death penalty in full consideration of the clear constitutional text. The Court rejected the submission. It did not invalidate the Narcotics Law death penalty. It weighed submissions about the death penalty, its role its effectiveness, sharia, the whole bit.

What it did not do was hear or consider the submissions of Chan and Sukamaran. It did not purport to afford them a hearing, let alone justice. To date, Chan and Sukamaran have been denied access to justice because they are foreigners. At international law, that is unacceptable for reasons outlined in my review of denial of justice at international law.

The beauty of an application under the second limb of 24C(1) is not that it will avoid an argument on the compatibility of the death penalty with a constitutional guarantee of right to life, the benefit is that article 63 of the Constitutional Court Act provides:

"The Constitutional Court may issue an injunction which orders the appellant and/or the respondent to temporarily suspend the exercise of the competency which is the subject of dispute until a decision of the Constitutional Court is available."

So the constitutional Court on such an action has a direct power to stay the executions pending its determination. Unlike actions under the statutory review head of power, actions under this SKLN head of power can halt, until curing, a past decision. They are not subject to the provisions of article 58 of the constitutional court law which governs only the head of judicial review of statutes.

So why have the present death row condemned never taken such an action seeking to stay their execution? Why are these Indonesian law principles not being pressed in the courts and in diplomatic conversations and political conversations? How is it that Indonesia has an absolute constitutional guarantee of a right to life, which may not be abridged under any circumstances - but the president is ordering the shooting of foreigners?

I don't know. Perhaps its an Indonesian thing I don't understand, but I would have thought, when framing an action on death row, two heads are better than one.

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