---

[4/9/08]

National Law Reform Consortium (KRHN) expected the Constitutional Court to be given with authority to issue a provisional decision in a judicial review. KRHN based this on the decision of the Constitutional Court related to the judicial review filed by eight non-parliamentary political parties some times ago.

The Leader of the Labor Party Mochtar Pakpahan was furious. The file for judicial review of Act on Legislative Election filed together with seven other managements of political parties was indeed granted by the Constitutional Court. The Court state that the stipulation in Article 316 that gave opportunities to minor parties having failed to meet the electoral threshold to be participants in 2009 General Election automatically so long as having one seat at the Parliament, MK menyatakan ketentuan Pasal 316 yang memberi peluang sejumlah parpol kecil yang tak memenuhi electoral threshold bisa lolos otomatis sebagai peserta Pemilu 2009 asalkan mempunyai satu kursi di DPR, breached the 1945 Constitution.

Unfortunately, the decision which was supposed to give advantage to Mochtar and others seemed to lose its power. It was because the General Election Commission had announced the Participants for the General Election 2009 a day before the decision was made. Nine minor parties which actually failed to join the Election automatically, was announced by the Commission. With the decision having prospective effect, those nine parties had the advantage to be the participants of the 2009 Election.         

Mochtar was no longer furious. The election commission finally announced four additional parties, including the one led by Mochtar. Despite the fact that Mochtar had been cooled down, some observers took a valuable lesson from this case. There had to be a kind of provisional decision having the effect of suspending the process related to the review of an Act, until the decision of the Constitutional Court was made. As an example, the Constitutional Court was provided with an authority to ask the General Election Commission not to set the participants of the Election until there was a decision from the Constitutional Court.

The KRHN considered the importance of this authority. Head of KRHN Firmansyah Arifin even suggested that this authority was put in the revision of Act on Constitutional Court currently being discussed in the Parliament. “The Constitutional Court is supposed to be allowed to ask all parties affected from the decision to be issued to suspend their policies,” explained Firman, last week. 

Firman told that actually “provision” was not a new idea in a judicial review in the Constitutional Court. He referred to Article 55 of the Act on Constitutional Court. The stipulation stated that “the trial of legislation under an Act conducted by the Supreme Court had to be put on hold if the Act being used as ground for the trial is in the process of review in the Constitutional Court until there is a decision of the Constitutional Court”.    

Unfortunately, the postponement was only aimed at the Supreme Court. However, Firman once again wondered, “if the Supreme Court have to make the postponement, why not the other?” he asked curiously.

Firman was not the only person parties with idea to allow the Constitutional Court to ask for postponement of the entire process related to the trial of an Act. In a seminar about State Administration Law at the University of Indonesia, an expert in Constitutional Law Denny Indrayana also said the same discourse.

In practice, the Moslem Defender Team even bravely demanded the provisional decision even though the Act of the Constitutional Court yet to accommodate it. The team acting as the legal counsel for the death convicts of Bali Bombing - Amrozi, Imam Samudera, and Ali Ghufron – demanded the execution of the convicts had to be postponed until the decision of the Constitutional Court related to the review of Act on Death Sentence Executing Procedure was issued. 

Have to be strictly regulated

Former Constitutional Justice Harjono admitted his agreement if the discourse was accommodate in the revision of the Act on Constitutional Court. However, he highlighted some things for the regulation not to cause problems in coming days. “I think (the provision – ed.) for the trial of an Act is fine. But it has to be clearly regulated.” He said to hukumonline, (3/9).

Harjono demanded not to see the decision of the Constitutional Court on the eight non-parliamentary parties. It was because if the provision was inserted in the revision of Act on Constitutional Court then it would be applied generally. He considered this kind of provision could not be applied effectively if it was related to the other judicial institutions. “General Election Commission was not a judicial institution,” he emphasized.

Harjono explained that if a convict was trialed and threatened with Articles in the Criminal Codes then the Article was under review in the Constitutional Court, Should the case be suspended?” he asked. If, indeed the case had to be suspended, he doubted the effectiveness. “What about the enforcement considering that there are so many courts in Indonesia?” he added. He said the possibility for improvement was still difficult.

(Ali)

Source: http://www.hukumonline.com/detail.asp?id=20060&cl=Berita

Photo: Courtesy of Ray Bachtiar Drajat

Translated by: Yogi Djatnika

---