In March 16-18, 2023, the Global Summit on Constitutionalism (https://law.utexas.edu/the-global-summit/) convened at the University of Texas School of Law by Professor Richard Albert, the Director of Constitutional Studies at the University of Texas at Austin and the founder and director of the international forum on the future of constitutionalism is the founder and director of the global summit. Constitutional scholars from more than 45 countries around the world were gained and brought various constitutional issues.
Lesson learned from the event is not only about organizing a magnificent event but also current valuables constitutional experiences from among countries. Not just theories but practical issues are important to be shared among constitutional scholars. It is on how constitutional scholars may have inspiration to contribute and develop the theories and practices in the field of constitution, constitutional law, and comparative constitutions in a broad area. Among all the interesting topics, simple and classical topic on the constitutional law and the judiciary in the theory and practice may have important and significant contribution in term of the current development of the constitutional theory and judiciary.
One of speakers was from Poland, Piotr Mikuli (Profile link: https://www.sheffield.ac.uk/law/people/law-academic-staff/piotr-mikuli), professor of comparative constitutional law at Jagiellonian, currently working at University of Sheffield. His interests include first of all the legal status of the judge, judicial accountability, and judicial review of legislation discussed various types of judicial immunity and models of immunity protection regarding judges. In contemporary political systems, both the scope of immunity and the way it is lifted vary. He argued an argument according to which 1) it is possible to make judges liable for damages (civil liability) in the situation of acting in bad faith, and 2) that immunity does not have to protect a judge’s action committed outside the courtroom. However, the reform of already existing immunity protection in a particular jurisdiction may be questionable in light of the non -regression doctrine, which prohibits the impairment of a right or a constitutional principle. This doctrine/concept is of a moral nature but may also derive from the text of the Constitution or EU law (see C-896/19 Repubblika). He believes that in his certain departures from this principle are permissible when other values justify it and when the intentions and motives of the proposed reforms are examined.
On this issue of judicial immunity, Indonesia can get lesson learned on how to reconsider constructing standard for the judicial immunityfor both judges in Supreme Court and constitutional judges in the Constitutional Court. The principle of judicial immunity may be reflected in the Constitution of the Republic of Indonesia. In general, judicial immunity may reflects from several articles in the Judiciary Power Law of 2019. In specific, limited immunity for the Supreme Court judges may be under the Supreme Court Law, whereas limited and official judicial immunity for constitutional judges may be under the Constitutional Court Law. in practice, judicial immunity in Indonesia may find various challenges. Several cases show that definitely apart from the roomcourt, judges may in anyway have no judicial immunity when dealing with any serious criminal allegations including corruption, and gratification. In Indonesia, judicial immunity may be limited only for the official capacity. This is maybe relevant as judicial integrity is a constitutional obligation for the judges in Indonesia. Once the judge takes the oath, the judges are inherently attaching by obligation to preserve the judicial integrity.
Other speakers, Marieta Safta, professor constitutional law from the faculty of law (Profile link: https://titumaiorescu.academia.edu/MarietaSafta/CurriculumVitae/ https://profesionisti.juridice.ro/marieta-safta ), Titu Maiorescu University talked about The Role of the Scholars in Constitutional Courts: Reasoning. She began with the recent debates regarding the place, role, ethical dilemmas, and even the usefulness of research in law, in conjunction with those regarding the quality of the reasoning of court decisions, given the enhanced complexity of the law, have directed an attention to how the legal doctrine is used in the reasoning of the constitutional courts. By doctrine, we understand legal science, including legal specialists’ analyses, investigations, and interpretations of the legal phenomenon.
She chose constitutional justice, considering its role and place very close to the law-making process, to the effect that the decisions of the constitutional courts decisively influence this process. Likewise, the legislation is, in part, the result of the action of the constitutional judge, often defined as a positive and specific co-legislator. Given this role, the use of the doctrine by the constitutional courts is relevant both because of the” support” given to the constitutional judge and, implicitly, of the quality of the decisions it renders and because of the legislator, implicitly of the quality of the legislation,” shaped” by the constitutional case-law. Thus, considerations can be developed on the role of the doctrine as a source of law and, therefore, on the role and profile of the legal researcher in contemporary society, seen by specific authors as necessarily” invisible”, and by other authors as necessarily involved in the life of the city” . However, there is undoubtedly a doctrine-case-law” dialogue”, and it is important to be used for mutual enrichment and strengthening. How can this goal be achieved, and what insights can be opened?. Preliminary conclusions (in terms of the ground for wider research and invitation to further debates) maybe draw, concerning the structure of the reasoning of the decisions of the Courts and the role of the doctrine, with particular emphasis on the responsibility and accountability required in the doctrine-case law dialogue.
In Indonesia, the role of the scholars in the constitutional court’s reasoning maybe the common practice for the constitutional court decision making. In the Court hearing, Court may refer to the opinion of the experts. The scholar’s opinion may be taken into consideration in the decision or in the dissenting opinion of a judge. Theories, perspectives, academic opinion from the scholars may be an inspiration, consideration, reference, and basis for the judges in supporting the judgement. Until now, the scholars in the constitutional adjudication of the Constitutional Court plays as one of the important sources for the judge in the decision making in Indonesia.
Other speakers from Mexico, Gonzalo Bolio (Profile link: https://www.linkedin.com/posts/gonzalobolio_it-was-such-a-pleasure-attending-the-global-activity-7043658016574881792-9a06?originalSubdomain=gg ), talked about the Supreme Courts of Mexico and the United States which have recently ruled landmark cases concerning abortion. These cases have placed the conflict between bodily autonomy and reproductive rights of women against the apparent right to life of the unborn at the center of the debate. The Supreme Courts thus faced the questions of whether the unborn are to be considered ‘persons’ and what it means to be a person in a metaphysical –and therefore legal– sense. The prohibition of non-liquet principle requires Supreme Courts to interpret their respective constitutions to address this personhood issue. The US Supreme Court overturned Roe and Casey but avoided the fundamental questions. Meanwhile, the Mexican Supreme Court provided an answer, albeit an incomplete one. The comparison raises the question of how applicable the prohibition of non-liquet principle is to constitutional courts. It also raises the issue of whether the philosophical foundations of contemporary constitutional law are enough to provide a definitive answer to the personhood issue or at least one that is satisfactory. To address this, it is necessary to consider the role and function of current constitutional courts.
The development of legal standing by the Supreme Court of Mexico about the ruling may address a question on what if the Constitutional Court in Indonesia may response if there is question concerning particular case. Such development may be as judicial activism and that, how to limit the Court in deciding beyond its competences. Mexican Supreme Court may be progressive at this point. In Indonesia, we are still not having any idea about such development. In Indonesia, such case has not yet been the case. It may be an extraordinary case in the future whenever there is a judicial review on the relevant issue. The Constitutional Court maybe or not may consider not only about normative and positive aspects but also has to consider matter about culture, ethics and religion. Meanwhile, until now the abortion is a criminal offence except for the any health issues.
Speaker Diego Enrique Uribe Bustamante (Profile link: https://www.linkedin.com/in/diegouribeb?originalSubdomain=mx ) was proposing a redesign of constitutional justice in Mexico and to criticize what it is known as Judicial Centralism. Apart from the federal constitutional order, in Mexico, they exist 32 local constitutional orders from the federative entities, where each of them recognises different human rights and contemplates different constitutional mechanisms. Unfortunately, the Federal Judiciary has arrogated to itself powers of constitutional control, without cooperating with the local constitutional bodies, such as constitutional chambers or local superior courts of justice. Diego argues different judgments from the Supreme Court in the matter of local constitutionalism, to demonstrate how, a phenomenon called “the centralism of constitutional justice or judicial centralism” is being developed by the Judiciary, in detriment of Federalism in Mexico and in detriment of human rights and constitutional principles contemplated in local constitutions. For Indonesia, it may not be the case since Indonesia is a unitary state. The Constitutional Court may only refer to one single Constitution. The Constitutional Court is the one and only court with the constitutional competences as according to Article 24C of the Indonesian Constitution. At this point, it is a centralized court. However, as according to the Constitution of Indonesia Article 18, the Court has to constitutionally preserve the local wisdoms. To this extent, whenever there is a case, the Court should consider to put priority of the local values which may be giving the constitutional justices. In terms of centralization, as it is that the Constitutional Court is the first and the final as according to Article 24 C of the Constitution of the Republic of Indonesia, the Court for any reason is centralization of any constitutional dispute.
Other panels and pleanary sessions are also interesting for example on the development of comparative constitution with the theory based. This is in Indonesia maybe important since we are also facing with the doctrines that may be different with the general doctrine or doctrines from abroad scholar. Therefore, comparative constitution -theory based might be very interesting. At the pleanary session, Professor Ran Hirschl (Profile link: https://law.utexas.edu/faculty/ran-hirschl/) session was giving depth thoughts on how the future of comparative constitution will be. It is not a matter on the question of are we going only to get the purpose on the convergences of the constitution?. Here I believe that we are dealing with the universal v particularism. The Constitution in one hand should reflect and accommodate the local values as well as the national values. This is how we build and preserve our nation and state. On the other hand, we are facing with the world of global and common challenges. Referring to the world and global development, we may not hinder with the reality that we have to adopt those global values and adopt in as our constitutional values.
From the plenary session, Plenary session Professor Richard Albert was very interesting with a new theory on multi-textual constitution, paper may be found in https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4355482. Lesson learned from the multitextual constitution, right now, Indonesia maybe have multitextual constitution by the constitutional court practices. It is of course depending on how we define the multitextual constitution. At this context we may refer to what Professor Richard Albert said about the multitextual constitution by judicial interpretation. Moreover, other type of multi-textual constitution by evolution is also maybe a phenomenon in the Indonesian Constitution. One of relevan development by the constitutional court in Indonesia is in the Court decision of judicial review against the Ciptaker Law 2022 (Creation Job Law). Here the Court said that the Court has competences to formal judicial review against the law vis a vis the Law and the Rules of Procedure of the DPR for the law making process procedures may be one of the “constitutional basis” for the legislative making process. At this point, the Court made an extensive path of constitutional values both in the Law and the Parliament Rules of Procedures. However, questions maybe raised in terms of the legitimacy and the hierarchical of laws. The fact that the Constitutional Court in Indonesia could do the informal amendment by any court practices, is may be relevant to the question of what is look like the future of the constitutional development in Indonesia? Would that be toward the multi-textual constitution?.
Meanwhile, keynote Lecturer by Professor Daniela Salazar (Profile link: https://www.linkedin.com/in/daniela-salazar-a18099184?originalSubdomain=ec ), Justice of Constitutional Court of Ecuador on the role of women in constitutional change: the case of Ecuador was very much inspiring. In her lecture, she raised issues on how important to have a constitution which expressively indicates the gender equality. At this context, it maybe by making sure that the constitutional making process is also involving women as the constitutional maker. Moreover, the provision in the constitution is encouraged to indicate the gender equality by phrasing all men and women to make sure the provision applied to all gender in practice. Other relevant issue is about the proportion or quota of women in political and constitutional system such as the need to encourage more and more women sitting in the pivotal public position such as in the presidency, in the legislature, as constitutional court justice and other public position. In Indonesia, the Constitution does not per se explicitly indicating the gender equality. No provision mentions about the proportion or quota of women as well as no special provision writing about women rights. However, there are several Laws contribute to the gender equality. In practice, women are more like equal to post in public position. For example, there is always women constitutional judges sitting in the constitutional court. In the future maybe we could have more and more women sitting as constitutional judges. In other area of legislature, the Law makes the proportion/quota for women sitting in the legislature even though not many women take the opportunity. On the other area, women have strategic and prestigious position. The laws made equal between men and women where not only women are equal before the law but also several special women rights are guaranteed by the laws.
Lesson learned from the Global Summit on Constitutionalism: Notes from panel session on Constitutional Theory and Judiciary in Theory and Practice and the plenary room session
Lecturer at the Department of Constitutional Law, Faculty of Law, Universitas Airlangga
email : rosa@fh.unair.ac.id
