Thursday, January 25, 2007

Constitutional Amendments Mess: Sore Looser

Hey – I’m back!!! Y’all must’ve read the papers these days. A number of ‘eminent’ figures questioned the validity of the recently amended constitution essentially based on two arguments. First, the (original) 1945 constitution is still in force because it has not been repealed by the MPR (when it amended that constitution). Second, the constitution’s amendments are not binding because they have not been published in the State Gazette. Among those who made these arguments are Gus Dur – if you must know our former President, and one Amin Aryoso of PDIP who chaired some of the MPR’s committees, sessions that amended the 1945 constitution.

Who are they kidding? Us or themselves? One can find in most (if not all) civic education books – including those for primary schools – that the 1945 Constitution has been amended. Four times in fact, staggered between 2000-2004. Surely everyone with high school education knows that when one amends a document, part of the original remains. Hence the terms ‘amendment’, as oppose to cancellation, [repeal] or any other synonyms. It is beyond reproach that a former President, who was serving his term when some of the amendments we made, fail to understand this.

Now that we have that stupid argument out of the way, it is obvious that their problems are the content of the amendments. What’s wrong with them anyway? Of course they’re not perfect some (including yours truly) have spent countless days trying to put some sense to those bastards who’re debating them. But these bastards have no right complaining about it because they are sitting on the damn committees and sessions. They’re the one who should be hanged if the constitution sucks.

‘Tis true that the constitution is far from perfect. But we know there isn’t such a thing as a perfect constitution. Ask the Americans who’re still debating whether or not fag burning is protected speech. But there are many important issues that have been enshrined in the constitution. An easy example is a through list of human rights, which some have said is offers among the best ‘protection’ compare to most other countries.

But the major problem of our (amended) constitution is very few actually understands the impact of those clauses in our daily life. Including (or should I say particularly) among the parliamentarians who amended the constitution. An example: looking at how the constitution was worded, it’s damn difficult to argue for capital punishment.

Let me move on to the more technical yet equally important – at least to me. It is true that all of the amendments were not published in the State Gazette until early 2006. What effect does this has on the constitution’s validity– some may ask what the hell is this gazette anyway....

Bear with me. Y’all are assumed to know the law, ie. you cannot argue your ignorance of the law to let you out of trouble. Very ambitious doctrine, I know. That’s why all laws have to be enacted by publishing it in an official state publication, such as the State Gazette for this law to be binding on y’all. So, if you don’t know the law then you have to pay for your own ignorance. In theory then if a law is not published you’re not bound by it. Fair enough right?

Now let me ask you: if a law has to be gazetted, then a constitution must be too because it is much more important and is the basis of all laws. Simple logic right yet sooo fundamental...

‘Houston we have a problem’. Does this mean the amendments to 1945 constitution are not binding between 2001-2004 (when they are passed) and 2006 (when they are published). Unfortunately yes, if we are to be consistent with the theory. I can’t accept the argument of the amendments’ proponent that the gazetting is only ‘administrative’ and that the amendments have been effective since they’re passed by MPR. What infuriate me most is that this also comes from the Chief of the Constitutional Court (separate story).

This will mean that the state can hide behind this administrative argument and not publish all laws! Hell no! So that you know, even when gazetting is required for a law to be enacted it is still difficult to access the gazette.

We (or rather the government) must admit that they messed up. They should’ve published the amendments as soon as they were passed. Some formal apology would be good too. Fyi, the (original) 1945 constitution was published in the State Gazette in 1946 – if I’m not mistaken among the first ones published there. This is when the country is still at war.

We need not worry about Gus Dur & Co at the expense on some fundamental issue (at least to me). While publication is late, everybody has been using the document anyway, including those claiming its invalidity. We have seen one or two election, so many law passed and strike down by the Constitutional Court, new institutions set up, etc.. etc.. Who in the right mind wants to undone all these and create one big mess that we surely won’t recover from?

If Gus Dur & Co wants to, let’s send them to Timbuktu. As I said, what’s the problem Gus? Still pissed because you’re impeached? You know that because of your impeachment, the amended constitution had made it more difficult to impeach a sitting president. Indicted by the DPR on limited causes, proven before the Constitutional Court etc and sanctioned by the MPR. You should applaud the amendments then. Unless you want to impeach SBY the way you were impeached. Sore looser!

9 comments:

Anonymous said...

A rather intersting predicament (mess)

For clarification purposes are you saying that:

a. the new Constitution was born under a new act of Parliament, which followed after an amendment to the Constitution of 1945? (ie, before they could replace the old Constitution, they had to amend it to enable such?)

b. That the new Constitution came into being via a new act of parliament, but they then forgot to

(i) issue an act repealling the old 1945 Constitution

and

(ii) in any event, failed to gazette the amendments and or the new act which gave rise to the Constitution?

in_absentia said...

What I meant is:
a) the new constitution is essentially the old one as amended; b) the amendments were passed by the MPR, comprising of the parliament (DPR) and some non-elected members
c) MPR did not repeal the old 1945 constitution, some provisions remain, most have been amended;
d) yes - in any event they failed to publish the amendments in the state gazette

Anonymous said...

So if I follow you, the "new" Constitution is really the "1945 as amended". Indonesia did not a. amend the 1945 document and then b.pass a whole new act of parliament, embodying the "new constitution".

If they simply amended the 1945 Constitution (and nothing more) then what they are saying is - that because the old parts of the 1945 Constitution (as amended) were not repealled AND the new amendments not gazetted - they are not law.

If my memory serves me - in Australia, where an amendment is made to a section in an act, the old section is thereafter, repealled. The purpose is to make it explicitly clear, as to what the intention of Parliament is ie: the new amended version stand in the place of the old law. Putting gazetting of the amendments aside for a moment, technically speaking, where the parliament has not done that (stated the old laws are repealled), it could be argued (as seems to be the case here) that in the absence of such a step, the intention of parliament is that the old laws remain.

Assuming for the moment that the amendments were gazetted (but they forgot to take steps to repeal the old sections of the 1945 Act, which were replaced by the new amendments) then you would have an interesting situation - of two provisions which might contradict or who's effect might be to cancel one another out. A court in applying rules of statutory interpretation might find by the slimest of margins (though it would be tough), that (in such a situation) the newest amended provision expressed the intention of parliament to improve the situation as reflected in the laws it tried to amend.

So what I am saying is I guess, that even if they failed to repeal, it does not follow that you would automatically dismiss new amendments and revert back to the prior legal position.

I guess they are raising this technical arguement, as a way of trying to upsurp amendments that (for reasons not made clear in your post) are now a political, economic or practical disadvantage to them. The problem is however, that the intention of parliament (having passed the amendments via due process)is expressing its desire to have them operate as existing law. So I think their reliance on the technicality of repeal - is a little useless, because once they note the laws in the gazette, as you rightly say - they come into operation on that date. That is not to say however, that they are not laws until gazetted. They are, to my mind. For assuming that they have gone through a proper parliamentary process, then they are laws, it just means that unless and until gazetted, they do not have/are not given, practical applicaiton in the community.

Therefore, if the government gazetted them tomorrow - they have practical application, operation and effect, as from tomorrow.

So it seems silly for these parliamentarians to advance these arguements, but they having done so, should tell you that either there is something wrong (ie they have some adverse consequences for someone somewhere, the extent of which has only just come to light) or it is simply the former Presidents attempt to show that the current leadership is slack - for not attending to gazetting. Though I would guess, that most of the failures to gazette probably took place under the former President? So, politically, it is kind of a curious situation.

If the amendments went through due parliamentary process/proceedure, then they are law. So in one respect your Chief Justice of your Constitutional Court - has a valid point. In that context, he is also right to say that gazetting is an administrative procedure/practice.

However, my understanding is like yours, that the law is the law but it does not come into operation - unless and until, the date of its publication in the gazette.

So I think that the amendments stand as law, but if you tried to apply them to a situation before their gazetted date, then the outcomes would probably be challengable, on the basis that the decisions/outcomes, had no foundation in laws operational at the time. What that means practically might vary from case to case.

For example, a tax law. If you had to pay tax back in 2004 for example on the strength of one of the amendments, then you would still be liable for the tax, it's just that you could argue for a rebate in part (for taxable portion between 2004 to the date of the gazette)

Based on my brief understanding and the contents of your post, I would say that the Chief Justice of your Constitutional Court is partly correct and so are you, from what I see :)

Anonymous said...

Went to Tree's site and read his post - and I understand now, why they are trying to run these arguements - to disolve parliament-a constitutional crisis.

Interesting days.

in_absentia said...

Interesting days indeed. Legal arguments are used more and more these days; mostly silly and quite a detour to advance political agenda. Same with many other countries. But the debate is quite twisted, too procedural etc and in the process eats away many fundamental issues. As you said, in this case the Constitutional Court CJ is not wrong but he further damaged discipline to gazette laws.

I just did some digging and it seems that no gazette has been published available for access/ distributed since 1994. Even before then, the gazettes can only be accessed in annual volumes, printed less than 1,000 copies. Most lawyers and John Smiths buy compilations from publishers who get the laws from government officers. The trick is how do one nows which one is the authentic copy?

You got me rambling again... Duh...

Almost forgot - normally laws are amended and then restated at the same time. The aim is exactly as you said, to make it the text clear. Here they don't bother, so one has to work with a number of documents. Quite labor intensive if there's been 10 amendments. :)

oigal said...

I donn't claim to be an expert on constitutional law in the US but I am pretty sure that "fag burning is protected speech" was rejected as free speech about the same time that it was recognised that the KKK was just a bunch of thugs in semen stained sheets.

Never was comfortable burning fags anyway, its a life style thing

Anonymous said...

"I just did some digging and it seems that no gazette has been published available for access/ distributed since 1994. Even before then, the gazettes can only be accessed in annual volumes, printed less than 1,000 copies"

Very interesting find there.

Makes you wonder doesn't it? What was going on in Indonesian politic's circa 1994?

I also wonder how many Indonesian Lawyers know about that.

Chuckles @ Oigal's comment

in_absentia said...

oops (blushing)- thanks oigal. I meant 'flag burning'...

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