Tuesday, December 22, 2009

Constitutional Complaint

Writer: Janedjri M Gaffar
Secretary General of the Constitutional Court of the Republic of Indonesia.

Published by : the Daily Seputar Indonesia, 8 Desember 2009.

As the supreme law of a country, the constitution can not be understood simply as a basic norm of the scattered, but is a unity of ideas, values, and norms that the orientation of both the foundation of life together.

Constitution was born from the core of constitutionalism understands the guarantees citizens' constitutional rights and restrictions of power. Guarantee constitutional rights is a logical consequence of the recognition that the supreme power or sovereignty of a country in the hands of the people and the establishment of goals for the benefit of the people. As the supreme law, the constitution must be respected. There is no single provision of law, the state action, even actions that citizens may conflict with the constitution.

In accordance with the core understanding of constitutionalism, there is no law and state action that may violate citizens' constitutional rights, unless it is allowed by the constitution and laws as a form of restriction. A provision of law or state action that violates citizens' constitutional rights was unconstitutional. Even so, both in theory and from reality, is possible the rule of law or action that state officials actually violated citizens' constitutional rights.

Rule of law has a chance against the constitution because the law is primarily a political product that is affected by the formation of political configuration that may have a tendency that is not in accordance with the constitution. Violations by the provisions of the law, there are testing the constitutionality of the mechanisms of law rules, especially the law. Through these mechanisms are considered the norm violating citizens' constitutional rights are tested in the forum court. If it violates constitutional rights is contrary to the constitution and will be shown not to have binding legal force.

One of the principles of state law is the rule of law. This means that each state organization must have a legal basis. With the testing mechanism of legislation that culminated in the constitution, can actually be prevented any action or decision that state officials violated the constitutional rights of citizens. However, it still did not rule out any action or decision that state officials violated the constitutional rights of citizens.

It can happen at least for three reasons. First, the state officials as a certain power holders have the opportunity to abuse of power, either intentionally or by negligence. Second, there are many legal provisions in its implementation requires interpretation and adjustment to the real conditions of the implementing authorities.

The interpretation made apparatus can be wrong and result in violations of citizens' constitutional rights. Third, one characteristic of the modern state is a welfare state that provides freedom of action to the government to improve the welfare of the people. Usually it is intended to enhance economic development that is not often have an impact on the occurrence of violations of citizens' constitutional rights.

Violation of constitutional rights of citizens in the provisions of the rule of law can be corrected through the mechanism of judicial review. So, the question is what mechanisms can be applied to actions or decisions that state officials violated the constitutional rights of citizens?. In some aspects it may be used ordinary judicial mechanisms, particularly against the violations occurred because of abuse of authority and false interpretations. This can be done, either through the criminal justice, civil, and state administration.

But the judicial process was still a gap, ie the legal basis used to judge is at the level of legislation down. Is not the constitutional rights of citizens guaranteed by the constitution?. What if there is no legal provision violated, but obviously violate citizens' constitutional rights?. How did if something goes wrong interpretation and application of law by judges in the judicial process through the first level to the last?.

These questions arose because of the importance of protection of citizens' constitutional rights, especially rights and fundamental freedoms guaranteed by the constitution. In many countries, the action or decision that violates the state's rights may be filed constitutional complaint that was one of the authority of the Constitutional Court. In Germany, dealing with constitutional complaint is one of the main powers of the Constitutional Court. Constitutional complaint is part of the mechanism to maintain the supremacy of the constitution and protect the constitutional rights of citizens.

Actions or decisions that state officials may be submitted to the German Federal Constitutional Court is an act or decision that caused great harm to the rights and basic freedoms of citizens guaranteed by the constitution. In addition, the new constitutional complaint may be filed to the Constitutional Court if all the legal and ordinary remedies have been passed, but the decision is still felt violated citizens' constitutional rights.

Currently, the authority of the Constitutional Court (MK) Indonesia did not include deciding constitutional complaint. Therefore, although in practice the Constitutional Court received a complaint that can be categorized as a constitutional complaint, the complaint can not be processed and returned with an explanation of the Court authority owned. In the future, maybe there was a suggestion of authority to judge the need for constitutional complaint the Constitutional Court held.

The proposal would need to consider many aspects, ranging from the relationship between the authority possessed by the other courts with the authority of constitutional complaint, because the decision of constitutional law complaint, to anticipate the number of constitutional matters complaint, if it was given to the Court. In the end, it is the authority and responsibility of legislatures or maybe even forming the Constitution if it is seen that it requires a change to the Constitution.

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