The Constitutional Court conducted a judicial review of Law No. 26 Year 2000 regarding Human Rights Court (the Human Rights Court Law) against the 1945 Constitution, on Thursday (29/11), for case No. 18/PUU-V/2007 filed by Eurico Guterres with his Attorney-in-Fact, M. Mahendradatta, S.H., M.A., M.H., PhD. The hearing had an agenda of Hearing the Expert Statements of the Petitioner.

The Petitioner requested the Constitutional Court to conduct a judicial review of Article 43 paragraph (2) of the Human Rights Court Law against the 1945 Constitution. Article 43 paragraph (2) of the aforementioned Law states that: the ad hoc Human Rights Court as referred to in paragraph (1) shall be formed by the proposition of the House of Representatives (DPR) of the Republic of Indonesia under certain events by virtue of a Presidential Decree.

The elucidation on the abovementioned paragraph states: In the event that the House of Representatives of the Republic of Indonesia proposed the formation of the ad hoc Human Rights Court, the House of Representatives of the Republic of Indonesia shall base the presumption of a serious violation of human rights occurred which is restricted in certain locus and tempus delicti occurring prior to the enactment of this Law.

In the hearing, the Petitioner’s Expert, Dr. Bernard L. Tanya, declared that the formulation of Article 43 paragraph (2) deviated from the trias politica system proposed by Montesquieu because the legislative body had intervened the judicial territory by proposing the formation of an Ad Hoc Human Rights Court. The ‘object’ of the presumption referred to in the elucidation of Article 43 paragraph (2) is concerning penal laws, therefore it should have referred to an objective and impartial process carried out by the judicial body. “The underlying principle of the legislative authority is law making, but once it enters the judicial territory, the parliament must stop and let the judicial body perform its role impartially,” stated the Lecturer of Legal Philosophy and Theories at Universitas Nusa Cendana in East Nusa Tenggara.

Furthermore, Tanya explained that the DPR carries out, among other things, the functions of legislative, budget and supervision, while the act of proposing the formation of Ad Hoc human rights court, is termed by Tanya as an ‘accessorizing’ function which is temporary in nature.

In respect of the Expert description, Constitutional Court Justice I Dewa Gede Palguna, S.H., M.H. posed a question: when will criminal justice system (CJS) commence and when will it end? With respect to this question, the Expert explained that narrowly, CJS process commences at the time of investigation process and ends at the enforcement of a penal sanction. While broadly, CJS has been in progress since the DPR formulated restrictions and orders in drafts laws and regulations until the enforcement of their penal sanctions.

“We rejected not the involvement process of the DPR in the formation of the Ad Hoc human rights court, but rather to the ‘presumption’ process which is originally included in the investigation process as a part of the law enforcement process. Thus, the DPR should not have intervened,” Tanya asserted. (Wiwik Budi Wasito)