Judicial review for rights protection

The Jakarta Post , Jakarta | Thu, 04/26/2007 3:25 PM | Opinion

Zainal Fikri, Sintok, Kedah Darul Aman

A Supreme Court judicial panel made up of Ahmad Sukarja, Imam Soebechi and Marina Sidabutar refused to accept an application for the judicial review of the substantive aspects of the Tangerang ordinance on prostitution. This decision has undermined the faith of many legal activists and academics in the Supreme Court, and shattered their hopes that judicial review would be capable of resolving the problems caused by sharia-inspired local ordinances.

This is the first case on the subject of sharia-inspired ordinances to be brought before the court, and, unfortunately, it ended in failure. The Supreme Court is the last resort for the judicial review of statutory instruments subordinate to a statute as the Constitutional Court only has the power to rule on the constitutionality of statutes. It has no power to review the constitutionality and legality of statutory instruments subordinate to a statute.

So, the constitutionality and legality of local ordinances cannot be challenged in the Constitutional Court. In order to do so, its powers would have to be expanded to encompass such local ordinances.

Djoko Sarwoko, the Supreme Court's spokesman, stated that the court's decision was based on procedural considerations, arguing the that the procedural aspects of the ordinance complied with all of the to higher regulations and statutes. In other words, the ordinance had been produced in accordance with the democratic process. Therefore, the Court felt it had to refuse to review the substantive aspects of the regulation.

In this case, the Court adhered blindly to the letter of the law but failed to pass judgment upon the actual substance of the ordinance. The question is, what now happens if the procedural process has been carried out democratically and in accordance with the letter of the law, with major components of civil society being involved and given their consent, but the substantive contents of the ordinance that is produced nevertheless violate the rights of citizens guaranteed by higher laws? Herein lies the importance of the relationship between the rule of law, judicial review and constitutional democracy.

After a number of constitutional amendments, Indonesia is moving from a representative democracy to a constitutional democracy. The supremacy of parliament is being replaced by the supremacy of constitutional law. This has included the setting up of the Constitutional Court to protect and uphold the Constitution and to affirm the principle of judicial supervision over the constitutionality of laws. Meanwhile, the Supreme Court has been given the task to judicially review the legality of statutory instruments below the level of a statute.

Based on these new departures, it was hoped that we would be able to limit the powers of government, adhere to the rule of law and protect fundamental rights.

In a country characterized by such great diversity and plurality, and so many ethnic groups and races, there is always the potential for tyranny of the majority. Much hope has been placed on judicial review to eliminate this kind of tyranny and oppression through the reviewing and, if necessary, striking down, of legislation that violates minority rights.

What are the implications of the ratification of these conventions for our system of judicial review? It clearly means that we need to extend the function of judicial review to protect human rights. Judicial review is not only a matter of procedural legality. It is a means of safeguarding and protecting the rights of every citizen.

The writer is a lecturer at the Antasari State Islamic Institute in Banjarmasin, South Kalimantan, and a PhD Student at Universiti Utara Malaysia. He can be reached at zainal.fikri@gmail.com.

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