At least there are 27 items to be added to the Act on Constitutional Court.

Decision of the Constitutional Court that gives three years for the legislators to finish the protection of Corruption Criminal Court seemed to put the Parliament and the Government on the hot seats.

The Fact is that up to this moment the Draft Bill of the Corruption Criminal Court has not been finalized. The latest progress was on Monday (9/6) afternoon, where President SBY led the Limited Ministrial Meeting to discuss the Draft Bill. The Draft Bill was not only to follow the order from the Constitutional Court, but it was also expected to make the legal process for corruption eradication more effective and efficient. “The Act is expected to be used immediately after the designation process ends,” said the Minister of Law and Human Rights, Andi Mattalatta, after the meeting.

According to the Minister, there were still several points to be discussed further. Of course the Government would discuss them with the House of Representatives. The legislators had to move fast in order not to pass the three years period provided by the Constitutional Court. If it went over the period, then for the sake of law, article 53 of Act No. 30 Year 2002 on Corruption Eradication Commission would be void. The three year period was clearly stated in the Decision of the Constitutional Court on case No. 012, 016, and 019/PUU-IV/2006. that meant the Draft Bill had to be finalized before the forming of new members of the Parliament as the result of the 2009 Election.

Even though it was put in the consideration, the time limit was taken by the Parliament as an “order” that should not have been made. The fact was that there was a new formula in the Draft Bill of the Improvement of Act No. 24/2003 on Constitutional Court proposed by the House of Representatives. The formula was a prohibition for the Court to issue order to the legislators.

Based on the copy of the Draft Bill received by hukumonline, the prohibition was put under Article 57 paragraph (2a). The paragraph was an addtion to the previous three paragraphs. The additonal paragraph formulated that the Constitutional Court could not issue three things. Besides issuing order as mentioned before, the decision of the Constitutional Court could not issue stipulation apart from what had been mentioned in paragraph (1) and (2), also the formulation of norms as the replacement of the norms in the legislation having been said to violate the 1945 Constitution.

The paragraph (1) mentioned said that the decision of the Constitutional Court stating that the norms in the paragraphs, articles, and/or part of the legislation should be stated as not having binding legal power. Paragraph (2) formulated the same thing for the formal trial of a legislation. If the forming of a legislation violated the 1945 Constitution, then the forming had to be said as not having binding legal power.

Not Appropriate

A lecturer of constitutional law from Gadjah Mada University Yogyakarta, Denny Indrayana, commented that the binding power of the decision of the Constitutional Court lied in the stipulation. The Justices’ considerations until the stipulation were still needed. If the Constitutional Court saw that there had to be harmonized or executed immediately, then it had to be put in the input context. Because of that, according to Denny, the formulation of prohibition stated in article (2a) of the Constitutional Court Draft Bill was not appropriate. “Even the Constitutional Court can annul the prohibition if it is brought before the Court and considered to restrict the constitutional authorities of the Constitutional Court to do the judicial review,” he said to hukumonline.

Restricting the Constitutional Court to issue order or input in the decision consideration, as mentioned in the Parliament’s version of Draft Bill of the Constitutional Court Act, was once again considered ineffective for Denny. It was because in carrying out the authorities, the Constitutional Court did not refer to the Act but to the 1945 Constitution. The Constitutional Court did not have to follow the legislation, in fact they had the authorities to conduct examination. The trial of article 50 of the Constitutional Court Draft Bill could be the precedent and acurate examination of the comparation in this case.

According to Denny, if the Constitutional Court indeed saw that there were things to be synchronized in the legislation pack of Justicial authorities like the Act on Supreme Court, Act on Constitutional Court, Act on Judicial Commission, and the Act on the Justicial authorities itself, then it was not a problem if in the decision the Constitutional Court ordered the legislators to do something.. “No Problem,” he said.

It should be remembered that the Draft Bill of the Constitutional Court  from the Parliament’s decision contained at least 27 additional point. One of them was to insert paragraph (2a) and between article (2) and article (3) Article 57 of Act No. 24/2003 of on Constitutional Court.



Photo: Doc. Of the Constitutional Court  Public Relation

Translated by:  Yogi Djatnika (MKRI)


Thursday, June 12, 2008 | 12:59 WIB 213