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Monday, July 2, 2007

MA Resistance Against KY

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: Indonesian Constitutional Law 2007.

Post-exit decision of the Constitutional Court (MK) who cancel all powers relating to the supervision of the Judicial Commission (KY) against the judge, not a resistance Supreme Court (MA) on KY existence ended, but continues. In early 2007, the Supreme Court returned to resistance against KY.

In fact, no half-hearted, resistance to the KY Supreme Court this time, done by questioning the constitutional basis for the existence of KY in the state administration system in Indonesia. In a statement issued by spokesman (spokesman) MA Djoko Sarwoko, MA proposed repeal in the 1945 article that included KY positions in the chapter on judicial power because it is disrupting the independence of the Supreme Court and Chief Justice in carrying out his task (Media Indonesia, 10.01.2007 ). Ironically, like tit for tat, in the development statement issued by the Supreme Court spokesman, helped also by the diamini Supreme Court Chief Bagir Manan. In a statement, Bagir Manan KY asserts that existence is not right in the chapter on judicial power in the 1945 Constitution, because in theory KY excluding the institution of judicial power to adjudicate the true function and resolve the matter (Media Indonesia, 11.01.2007).

Please note, since the first form on August 2, 2005, the resistance made against the existence of the KY Supreme Court as an institution that functions to external supervision of the judges is not the first time. If we listened to the back, in the year 2006, noted the Supreme Court has managed to successfully cut the vital KY authority, namely the supervision of a judge. Through judicial review (judicial review) of Law No. 22 of 2004 on the Judicial Commission filed by 31 people to the Constitutional Court Chief Justice. Constitutional Court in Decision No. 005/PUU-IV/2006 dated August 23, 2006, canceling all the articles of Law No. 22/2004 relating to the supervision KY to judge as contrary to the Constitution of 1945.

Of course, the revelation of the Supreme Court, and the surprising variety menghentakan circles. In the middle of ideas for reform of the judiciary (judicial reform), the Supreme Court as the highest law enforcement institutions in this country just do not act and behave cooperatively with a variety of resistance against KY. When it should, in the middle of terpuruknya legal conditions and law enforcement in this country, the Supreme Court did not disturb the atmosphere with the issue of revelation that is biased to KY. Because this tends to be counterproductive and cause negative impacts on the image of the Supreme Court in the public eye. In addition, both the Supreme Court statement, at least indicates some things are, first, shows that MA did not like the presence of KY in the structure of the judicial power in Indonesia. Second, the more convincing the public that the Supreme Court is the institution would not be controlled. Third, show that MA is an anti-institution of judicial reform. Fourth, reflects that the Supreme Court is an institution that wants to preserve the culture of corruption in the judiciary (judicial corruption). Then the question, what factors cause the Supreme Court to be resistant to the presence of KY so far?

When examined, at least there are two main factors that caused the Supreme Court be and behave resistant to KY. The first factor, an error occurred understanding (misunderstanding) by the Supreme Court, in understanding the meaning of an independent judiciary as contained in the formulation of Article 24 paragraph (1) of the 1945 Constitution. In his view, the Supreme Court assumed that an independent judiciary is judicial power which should not be controlled by anyone. This is of course not true, because it related to the implementation of the doctrine of an independent judiciary, there are two things that need to be considered by the Supreme Court. Both these things are, first, by wearing the doctrine of an independent judiciary, not necessarily later in running the duty judge to be closed (exclusive). In conducting its duties, the case examination by the judge still must be open, and at the time of assessment in determining a decision, the judge must also live the values of justice who live in the midst of society. The judge not only acted as a 'mouth' laws or regulations (de labouce de la Loi), but also the 'mouth' of justice (de labouce de la justice) who voiced the feeling of justice that live in the midst of society. Second, by wearing the doctrine of an independent judiciary, not the means to make the Supreme Court as an institution of sterile and untouched (Untouchables) of any supervision. Oversight mechanisms both external and internal to the Supreme Court remains an absolute necessity. This is intended to prevent abuse of power (abuse of power) by a judge. Is not a prominent British historian Lord Acton (1834-1902) has reminded, that power always tends to become arbitrary, and absolute power tends absolutely kesewenang-wenangannya (power tends to corrupt and absolute power corrupts absolutely).

The second factor, the Supreme Court did not fully understand the intent and purpose of the establishment of KY in the structure of judicial power (judicial) by forming the 1945 Constitution, the amendment process during the 1945 three years ago in 2001. As a result, the Supreme Court tend to think KY is not as partners but as an "enemy", which prevented the Supreme Court in carrying out the functions and duties to enforce the law and justice. In fact, if studied and researched in depth treatise on the adhoc committee meeting MPR I workers agency in 2001, can be seen that the purpose and objectives of the establishment KY Supreme Court not to intervene. But with the intent and purposes, First, KY was established in order to conduct intensive monitoring of the judicial power to include elements of society in the broadest spectrum possible, and not just internal monitoring. Second, KY expected to be intermediaries (mediators) or liaison between the authority of government (executive power) and judiciary (judicial power) whose main goal is to ensure independence of judiciary from the influence of any particular powers of government power. Third, with the KY, the level of efficiency and effectiveness of the judiciary (judicial power) will be higher in many cases, both concerning the recruitment and monitoring of judges and the judicial power of financial management. Fourth, the preservation of the consistency of judicial decision, because every decision of getting the assessment and close supervision of a specialized institution (read: KY). Fifth, with the KY, the independence of judicial power (judicial power) can be kept awake, for the politicization of hiring judges can be minimized with the KY is not a political institution, which is assumed to have no political interests. Sixth, KY formation is expected to strengthen anti-corruption agenda in the judicial environment, mainly by ensuring implementation of the judicial function in a dignified, fair, clean, and transparent.

In solving the above problems, there are several steps and strategies that can be done as a way out to prevent the Supreme Court of resitensi KY. As for some of these steps are, first, to set right the wrong understanding of the Supreme Court about the meaning of an independent judiciary. Second, the need to build common perceptions and views between the MA and KY in terms of duties and authorities of these two state institutions. This can be done by way membagun communication and good coordination between the MA and KY. Third, the Supreme Court should immediately remove the defensive and confrontational culture of KY. This can be done by correctly understanding the purpose and objective of the establishment of KY in the structure of judicial power by the 1945 building. Fourth, the process of revision of the Law KY which is currently under way should be quickly resolved by the Parliament and Government. The goal is to provide clarity about the duties and authority of the Supreme Court KY.

All four of the above, should immediately diimplemetasikan and realized. If not, is not impossible, feud between MA versus KY like that happened some time ago, can happen again. And of course, we all wish it really did not happen, because if the Supreme Court and continue stuck in KY prolonged hostilities, it will negatively affect the process of law enforcement in Indonesia.









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