Constitutional Court shall give a "Red Card" for the National Budget 2007 -- Mova's comment

The Article of the Constitution reads:

"The state (shall) give priority to the education budget (by allocating) at least 20 percent of the state as well as regional budgets to meet the requirements of implementing national education." (Article 31 paragraph 4, 1945 Constitution, 4th Amendment)

The Court rejected the petition last year by declaring the case inadmissible on the grounds that if the submission is accepted, the State will be faced with an economic chaos. I have discussed this case on my newspaper article here.

For me, the issue is no longer whether the Court should give a red card or not. Red card should've been given long ago after finding the facts that the State budget law was unconstitutional. Thus, the issue now is whether the Court should declare the case inadmissible or admissible (and consequently annul the State budget law). Before going with such decision, the Court will have to utilize a cost and benefit analysis. This will not be easy as the law says nothing about it. My guess is, it will be declared inadmissible.

Constitutional Court shall give a "Red Card" for the National Budget 2007 -- Faiz

National Budget Act of 2007 regarding to the budget allocation of education, once again, have been applied for judicial review before the Indonesian Constitutional Court. The applicants of this case are still same with the applicants of the two latest judicial reviews on National Budget Act of 2005 and 2006; one of them is the Indonesian Teacher Association. This petition is related with an education sector in the Act which is only get a budget allocation of 11.8% from a whole National Budget Act of 2007 or we can say it is only around US$ 9,01 billions from the total of US$ 76,36 billions. According to the applicants, the allocation budget for education is violating the 1945 constitution mandate which supposed to be it shall gives an allocation priority for education budget at least 20% from National Budget and Regional Budget [see Article 31(4) of the 1945 Constitution]

I have predicted and analysed around six months ago, exactly one day after the National Budget of 2007 came into force, that there would be a kind of such petition. Sufficiently raising the allocation budget for education in this year has shown that the government is not serious to implement the mandate of 1945 Constitution. And it shall be looked that it is not due neither with the morality of constitution nor the spirit of constitution. Whereas two judicial decisions from Constitutional Court have clearly stated that the budget allocation for education was unconstitutional.

Two ‘yellow card’ decisions of the Court are enough to warn the government who has violated the constitution. It is the time for the Court gives a ‘red card’ to the government for his third willful who always determined the education budget under the minimum obligation of 20% from the National Budget.

Firmly and clearly decision shall be marked to kindle and intrigue the awareness of every government protagonists for the important meaning of education whereby it can save our child of nation who will be the main asset for Indonesian development in the future. If it is happen it will be the milestone of Indonesian resurrection on education from its long time header.

Moreover, when we study for a comparative law in various developing countries then we will see how their judicial institution has played an important role to boost its government to achieve their constitutional obligation in providing the sufficient education for their citizens. One of the countries whose the court always gives decision with a fully and firmly support to the right of education is India. It is a country which is categorized by Arend Lijphart as the country who has a strong judicial review system. Unfortunately, it is not happen in our constitutional system.

Quoting an opinion from Holmes, Justice of US Supreme Court, that constitution provisions are not only a formulation of mathematics which can make matrices. It is a living institutional organ. It has an important role and it is made not as easy as weaving words from a dictionary, but it is made with the attention of its real and development in every time. Therefore, the judicial institution, especially for constitutional court, shall able to make the constitution become the heart people’s constitution and thereafter it is use to rule the government.

A Qanun regulating amputation of thieves can be unconstitutional -- Mova

International Herald Tribune published an article on the draft law (Qanun) in Aceh which provides amputation penalty for theft:

One article in the draft law says thieves found guilty of stealing goods worth more than the market price of 94 grams (3 ounces) of gold should have a hand amputated, a punishment stipulated in the Koran, Islam's holy book, and carried out in some Islamic countries.

The Indonesian government agreed to allow Shariah law in Aceh four years ago as part of negotiations to end the 29-year war between separatist rebels and the military. The province is slowly introducing elements of the legal code.

I need to clarify that I have not seen nor read the draft Qanun directly so I am unable to confirm on the validity of this IHT article. However, assuming it is true and this draft is enacted as a Qanun, then there will be challanges on its constitutionality. Any citizen will have sufficient grounds to challenge the Qanun. At least, it can submit its claim based on:

1. Legal certainty. Dualism of criminal law creates constitutional injuries.
   
2. Ultra vires. None of the laws concerning Aceh authorized any institution there to issue criminal penalties. Besides, any criminal provisions larger dan 3 months imprisonment and 50 million fines must be regulated through parliament-enacted laws
   
3. Human Rights. Indonesia is a party to the International Convention on Civil and Political Rights. This Convention bans torture and any form of degrading punishments. Indonesia will have international obligation to carry out the Convention.
   

Sharia Law in Aceh -- Faiz's Comment

Many eminent say that wishing bylaws to perform its all functions are undoubtedly. Nonetheless, effort to reach that fullness should be tried in all measures.

Furthermore, when we talk regarding the implementation of Qanun in Nanggro Aceh Darussalam, it can’t be segregated with its timing process. We can’t make a judgment that the bylaws have failed only within one or two years from the time when it has been enacted. Let we compare to thousand legal instruments which have been created in national scope or hundred regional regulations in every provinces. In fact, till present, those regulations still left many socio-legal problems that never arise with any solution.

I agree with you, only in this context, if there is any sentence under the Qanun which is clearly stated against the basic of law principles, such as conflict with other laws or violate the rights which are guaranteed in 1945 Constitution, thus it should to be reviewed as soon as possible.

As we know that provisions inside the Qanun (bylaws), however, are adopted from Islamic Law. It means that we also have to avow, knowingly or unwittingly, that Aceh Province actually has become a touchstone laboratory for implementation of law product which is based on Sharia law. Therefore, whatever its results will predispose other law products which is also constructed from Sharia law.

If we want to give a special autonomy for Nanggro Aceh Darussalam like China did for Hong Kong, in all respects of my opinion, than we should think twice of it. Anyhow, between Indonesia-Aceh and China-Hong Kong has a quite distinction in many aspects. Starting from their law system, regional government system and also its socio-culture factors; there are not many likeness forms on those aspects. Nevertheless, the probability to reform the present Aceh autonomy system in the future is still widely open as long as it can bring the effectiveness and efficiency system more than before.

Sharia Law in Aceh-- Mova

The Jakarta Post brought up an interesting article:

Sharia-style local government bylaws in Nanggroe Aceh Darussalam are bringing unnecessary hardship to the Acehnese and discriminating against women, people from the province say. "Four qanun (bylaws) have been produced that put harsh sanctions on minor crimes committed by needy and vulnerable groups, while many kinds of major crimes committed by 'the haves' and public officials have been ignored by the sharia affairs office," Yuswardi told The Jakarta Post. Discriminatory bylaws are those on maisir (gambling), khalwat (adultery), khamar (the consumption of alcoholic beverages) and on personal dress, he said.

The people there are complaining as the Qanun's are unable to nail big cases such corruption. I am not surprised to see this reaction as the Law on Aceh Governance has not delegated much power to the Qanuns. It only says that every moslem in Aceh must obey sharia, without further elaborating the extent of sharia that should be obeyed. Thus, grave cases such as corruption, murder and and theft for example will still be dealt with national legislations. I have explained this problem at my newspaper article around a year ago. Not many has changed ever since:

The special autonomy law is silent about the maximum penalties for crimes in the Qanun. However, Article 225 in Law No. 32 2004 on regional government, which also applies to Aceh, stipulates the maximum sentences for all crimes in the Qanun -- six months imprisonment and a maximum fine of up to IDR 50 million. Viewing the Qanun through the regional government law, it is no different from the ordinary Peraturan Daerah or Regional Regulations, except for its Arabic and Islamic-oriented terminology.

If the Acehnese want an effective and far-reaching special autonomy like Hong Kong has, then Article 18 of the 1945 Constitution must be amended, so as to permit the enforcement of different, autonomous legal systems in Indonesia. In addition to that, the House of Representatives needs to pass a bill regulating and defining the limits of Aceh's sharia law. As long as the status quo exists, the harshest penalties under jinayat (Islamic criminal law) in Aceh should be limited to a maximum of Rp 50 million and six months imprisonment. Penalties which exceed or are different to these are likely to be illegal.

Should none of these measures are concluded, implimentation of sharia law in Aceh will forever be only of "petty cases", nothing but a lip service to calm down the people.