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Since 2003, the Constitutional Court, an institution formed as the result of the amendment of the 1945 Constitution, has often been the center of people’s attention. This institution has been working well and relatively cleans from corruption, collusion, and nepotism. This institution has also been considered as free from significant defects.

That was said by the Chief Justice of the Constitutional Court, Mahfud MD in front of audiences of the discussion meeting from the Law Magister Program of Gadjah Mada University who visited the Court, Monday (25/8).

Mahfud considered having 144 times judicial review as something extraordinary. In the period of 1959 until 2003, there had not been a single law reviewed for being against the 1945 Constitution. That was due to the unavailability of the rules about that. “Actually at that period, there were many laws considered to violate the Constitution,” he explained.

In the era before the amendment, a law had to be passed on under the initiative of the President, meanwhile the Parliament and political parties almost had no function at all. “As the result if there was a wrong law, it carried on until the President decided to do something with it,” added Mahfud.

In the reformation era, continued Mahfud, there was a demand for the judicial review to be hold constitutionally. Responding to the demand, the Constitutional Court was formed with two basic ideas they were as forum previligiatum to impeach President based on law not based on mere political interests and to review law against the 1945 Constitution (judicial review).

Generally, the Constitutional Court in this world had three authorities. Besides as forum previligiatum and judicial review, the Constitutional Court also had an authority to accept claims for constitutional complaint filed by someone to the Court because his constitutional rights had been violated not because of the existence of a law but because of the verdict of a court using wrong legislative products as the ground.

When establishing the Court, explained Mahfud, the lawmakers felt that it was enough to adopt with little change on the first two authorities without including the authority for constitutional complaint. Different from the Constitutional Court in other countries, Indonesian Constitutional Court only acted as a medium in its function as forum previligiatum. “The Court can not terminate a President but it can give a legal consideration before the President (and/or Vice President) is impeached,” explained Mahfud.

In the future, Mahfud considered the Court needed to be provided with authority to settle the constitutional complaint because many cases dealt with in the Court was actually in that area.

Mahfud took the joined-decree for Ahmadiyah case as an example. As a decree, it had to be brought before the Court of Jurisdiction. However, considering the character as a rule then the Court of Jurisdiction refused due to the reason that the decree had to be brought before the Supreme Court.

“If we were given that authority, then we could settle that problem. There were many cases in the people having no passage of judicial settlement, meanwhile human rights had been thrusted and people were helpless in the name of legal certainty because it had been settled by the Supreme Court,” said Mahfud. (Yogi Djatnika)


Monday, August 25, 2008 | 13:14 WIB 164
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