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Sunday, July 8, 2007

Law Revision Commission on Judicial Indonesia

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: The Daily Pikiran Rakyat, 04 September 2006.


"THE end of story is not good." That's about the proper phrase is intended for the end of the story of the battle between the Judicial Commission (KY) and the Supreme Court (MA) in the arena of the Constitutional Court (MK). KY long conflict and legal interpretation of the Supreme Court regarding the authority of the agency ends on Wednesday, August 23, 2006 then.

The Court in the decision to cancel all 005/PUU-IV/2006 Tax Act provisions of the Judicial Commission of the supervisory judge as contrary to the Constitution of 1945.
Practically therefore, currently only has the authority KY propose the appointment of Supreme Court Justices. When examined the Court's decision to delete the authority of the very fundamentals of KY that is, supervision of a judge, is a step backwards in efforts to fix and set the judicial institutions in Indonesia from the practice of judicial mafia.

Judging from the historical aspect of the 1945 changes, the idea emerged KY formation at the third change in the 1945 Constitution. Purpose of KY in the state administration system in Indonesia is to establish an oversight institutions that are external to the judicial power, because during this internal oversight functions of the judicial power (read: the judge) felt less effective and no positive impact in monitoring the behavior of judges. Besides the presence of KY, expected to improve the bad image of the judicial institutions in Indonesia. But since the establishment of KY, resistance to the presence of new state institutions is so powerful. Resistance was so loud protests came from the highest legal institution in this country is the Supreme Court.

Now the Constitutional Court after the verdict, there are two options that can be done as a solution to overcome the legal vacuum (rechtvacuum) in the case of supervisory authority KY. First, the president immediately issued a replacement government regulation law (Perppu) which reset the supervisory authority KY. Second, the House of Representatives and the President as soon as possible to a discussion of the revision of Law and Law KY MA.
For the first thing about the issue Perppu, President Yudhoyono, since the decision of the Court who cut out KY supervisory authority was issued, so far not issued a reset Perppu on Oversight authority KY. Supposedly, President Yudhoyono in scrutinizing the problems faced KY currently being fast, responsive, and responsive to the issue Perppu.

Actually, non-responsive attitude of President Yudhoyono to issue the KY is not the first time, at some time ago President Yudhoyono refused requests to remove Perppu KY about "re whipped Justice", for reasons not fulfill the constitutional requirements of Article 22 paragraph (1) 1945 Constitution of This forced ikhwal crunch. Certainly the attitude of President Yudhoyono is very alarming and contrary to the spirit of the law and judicial reform that is currently widespread, rampant campaigned.
In the current development, an idea that appears to find a solution to overcome the legal vacuum of the problems facing the supervisory authority is to revise the Law KY KY. We have already established leadership team KY formulating the proposed draft revision of Law No.. 22 of 2004 on the Judicial Commission and its four other Act, the Act on the Supreme Court (MA), Law on the Constitutional Court (MK), the Law on Judicial Power and Judicial Law General (Media Indonesia, 29/8/2006). The purpose of the comprehensive revision is to make a change in law KY integrated with other law in the same field as well as synchronization and harmonization with the Law KY, MA Law, and Law on the Constitutional Court.

Examine the steps taken by the Management of KY is, in fact it can be said is good enough in an effort to overcome the existing problems in the current body of KY, but, in terms of effectiveness and efficiency of these measures tend to be counterproductive. Because the process of revising the Act was not an easy matter, the discussion in Parliament would be time consuming, and involves a long debate in the middle of a series of discussion of the bill the House agenda solid. Especially in the plan, KY leaders not only to revise a law, but four and UU. It is very unlikely to be implemented this step.

Regardless of the obstacles which will be faced by leaders in the process of revising KY KY Law, there are some things that need to be included in the revision of Law KY, among other things: first, to comprehensively revise the rules regarding the supervision mechanism. So far, KY Act clearly does not regulate how the control procedures, who watched, the object is monitored, and the instruments used in the surveillance. Thus, in future events overlap of authority between KY and MA in conducting oversight of the judge does not happen again.

Second, the revised mechanism for the appointment of Supreme Court justices, the extension of working life justices, and changes in termination mechanism justices, took over the extension of working life judges, imposing sanctions for judges and the recruitment process, KY is given authority to recruit actively, without waiting for the Supreme Court justices Supreme Court notice to meet the appropriate number of justices Act (ie 60 people).

Thirdly, should be detailed and strict set of terms and scope of the behavior of judges in the new KY law, this is to prevent multiinterpretasi about what is meant by "behavior of judges".

Finally, the lessons learned by the Government and the Parliament of KY and MA problem is that to step forward Act making programs, particularly in formulating legislation and regulation governing authorities of state institutions to consider synchronization and harmonisasinya with laws and regulations that related and should refer to the 1945 Constitution. Thus, the Act does not appear again that materially conflict with the constitution or the 1945 Constitution. Thus, the institutional authorities of the state of conflict does not happen again.









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