Zsolt SzabóJust about one month before the G20 summit, another important global event took place silently in Bali: the World Conference on Constitutional Justice (WCCJ) met for the fifth time between 4-7 October on the Island of Gods. As probably known by the readers, the WCCJ, together with the Venice Commission and ten regional groups of constitutional courts, is one of the most important formats of global constitutional dialogue between constitutional judges. Operating since 2009, it unites today 119 constitutional courts and equivalent institutions from all continents. Notable outsiders are – for various reasons – the UK, the USA China, and since 5th October, Russia, who terminated its membership on the opening day of the congress. According to its statute, the WCCJ is committed to promote “constitutional justice – namely constitutional review including human rights case-law – as a key element for democracy, the protection of human rights and the rule of law.” A solemn, all-in-one declaration that no civilized human being can reject.
As a side-event to the congress, the Indonesian Constitutional Court International Symposium (ICCIS), an annual global academic forum, discussing constitutional law issues, was held, equally for the fifth time. Being one of its speakers, the author can confirm that it was a truly open, critical event, organized by the Constitutional Court of Indonesia (Mahkamah Konstitusi, MK) on a high quality. Discussed topics covered recent constitutional problems from Indonesia, like failures of the legislative procedure, challenges of water and forestry law, or unsuccessful compensation of the victims of the former authoritarian regime of the country`s past.
Yet all this does not mean that in Indonesia everything is right in constitutional matters. Just a few days before the constitutional summit, justice Aswanto of the host institution, the MK, was suddenly removed from the bench by the Indonesian Peoples` Consultative Assembly (DPR), the countries legislature. Aswanto was supposed to finish his term in 2029. He was replaced by a candidate secretly and improperly.[1] Civil organizations, together with former justices (including the first chief justice of Indonesia, Jimly Asshiddique) claim that the parliament`s decision was unconstitutional, the parliament having no authority to dismiss a sitting judge.[2] The legislator, which has a 82% majority for the government coalition, possibly got revenge on the MK for its former decision, suspending[3] a controversial statute on procedural arguments of lacking obligatory consultations during the legislation process.[4] The chair of the III. Committee of the DPR admitted openly that the main reason for the dismissal was that Aswanto „did not commit himself to protect the legislation adopted by parliament.[5]” A comment that needs no more comment. Constitutional courts are obviously not there to protect the legislator’s will, but to limit it to constitutional standards. One of the possible decisions, which could have made the government angry, concerned the Law on Job Creation, the very first omnibus law of the country. It was supposed to be one of the flagship projects of incumbent president Joko Widodo, submitted at the beginning of his second term in 2019 and passed one year later, despite public resistance.
According to the tight, 4 to 5 verdict, the law, if not corrected by the lawmakers within two years, will be deemed unconstitutional. The removal of Aswanto might have prevented an unpleasant revision in 2023, one year before the termination of the last term of president Widodo – whose supporters, and maybe even he himself, are already speculating about an extention of his term, or an additional one.
But let`s get back from the unfriendly reality to the warmth of the conference rooms. The topic of the 5th WCCJ was “constitutional justice and peace”. The conference of 94 delegations ended with the adoption of the Bali Communiqué,[6] which “called upon judges of the member courts of the World Conference to resist pressures from other state powers and to make their decisions only on the basis of the Constitution and the principles enshrined therein.”
Yet it remains a question, how to put these fundamental principles into practice. How to resist such pressures? Until the answer, if any, is given, communiqués remain communiqués, or simply commonplaces. The kindness of the Bureau of the WCCJ, to offer “its good offices to courts under pressure, including through statements of support” is unlikely a sufficient tool.
Some voices of the civil society, especially from fragile democracies (eg. form Africa), already urge the creation of some kind of a global constitutional court, in order to provide remedy in similar cases, or punish courts which are collaborating with authoritarian regimes. So far, the MK, established in 2003, some years after the fall of the Suharto-regime, tries to do its best in controlling parliament`s legislation. Yet it cannot go against voluntary decisions of an omnipotent executive power, neither seek remedy on a global scale.
A prerequisite for a global court would be obviously a global constitution. Which is very unlikely to be created. But even if a kind of global charter of constitutional rights and values could be agreed on, the second step would be much harder: to implement it, revoking legal remedies against those disrespecting them. Those who do not respect the constitution, neither will respect the decisions of any kind of constitutional court. The two realities never meet: hard-handed leaders and whole-harted constitutionalists equally go their way of authority and justice, respectively. The crossing of the the roads, where they would confront each other, never comes. Yet if it do arrives, the violent crush is unavoidable - a scenario that nobody awaits.
After a few days of the parliament`s decision on the removal, president Widodo commented the case of Aswanto in Jakarta in the morning of 5th October with just a few brief words: “all most obey the rules.”[7] On the same day`s evening, he presided the opening ceremony of the 5th WCCJ in Bali.
The Bali Communiqué says: “When faced with fierce and unfair criticism or undue pressure from the executive and legislative branches, after having taken decisions that displeased other state powers or political actors […], member courts of the World Conference can rely on the solidarity of counterpart courts, expressed through the regional groups and the World Conference, which can help a court to resist such pressures.” Despite the solemn words, nearly one hundred constitutional court delegates received Widodo standing and applauding in the conference room.
Aswanto, not being a justice any more, did not participate on the solemn event. He could not resist – this remains the task of others.
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[1] Bivitri Susanti: Power Intoxication Damages Judicial Independence, kompas.id, online: https://www.kompas.id/baca/english/2022/10/06/power-intoxication-damages-judicial-independence
[2] The Jakarta Post, online https://www.thejakartapost.com/indonesia/2022/10/04/former-justices-accuse-lawmakers-of-violating-constitution.html
[3] Decision No. 91/PUU-XVIII/2020, 25. November 2021.
[4] Stefanus Hendrianto, The End of the Beginning of Abusive Constitutional Borrowing in Indonesia: On the Suspension Order of the Omnibus Law of Job Creation, Int’l J. Const. L. Blog, Feb. 12, 2022, at: http://www.iconnectblog.com/2022/02/the-end-of-the-beginning-of-abusive-constitutional-borrowing-in-indonesia-on-the-suspension-order-of-the-omnibus-law-of-job-creation/
[5] Kaltim Post, online: https://kaltimpost.jawapos.com/nasional/05/10/2022/aswanto-dicopot-kualitas-demokrasi-merosot
[6] Bali Communique, 5 th Congress of the World Conference on Constitutional Justice, Bali, Indonesia, 4-7 October 2022, see online: https://www.venice.coe.int/files/2022_10_06_WCCJ5_Bali_Communiqu%C3%A9.PDF
[7] The Jakarta Post, online: https://voi.id/en/news/215730/read
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The views expressed above belong to the author and do not necessarily represent the views of the Centre for Social Sciences.