---

The existence of the Constitutional Court was considered unable to answer all questions on constitution. There was an idea to expand the Court s authorities taking German Constitutional Court as an ideal. Technical preparation became the stumbling block.

Revision of Act on Constitutional Court No. 24/2003 was still under discussion in the House of Representatives (DPR). However, the discourse to provide additional authorities to the institution acting as the guardian of the constitution still arises. After so many discussions, comparative studies to see the Constitutional Courts in other countries, one of which was German Constitutional Court, the Constitutional Court was highly placed in the country of Adolf Hitler. The Verdict on Case Review done by the Supreme Court could even be brought into trial.

Chief Justice of the Court, Mahfud MD, realized the situation. He said that there had been increasing demand for adding the Court s authorities. Mahfud noted some authorities in demand. First is the authority to settle constitutional complaint cases. In free translation, this is a complaint filed by citizens to the Constitutional Court for getting unconstitutional treatment from the government.

At the moment, it was only acts violating citizen s constitutional rights could be put on trial. Through the concept of constitutional complaint, all government products, as well as the Parliaments, considered to violate citizen s constitutional rights could be brought to the Constitutional Court. “The demand for the Constitutional Court to be authorized for handling constitutional complaints has arisen,” Mahfud said between the launching of a book titled “Federal Republic of Germany Constitutional Law: Selected Decisions” written by a German Constitutional Justice, Siegfried Bross, in the Constitutional Court, Monday (17/11).

Mahfud also gave appreciation to Bross work. “Bross book is interesting because it will give an understanding of what constitutional complaint is about,” he remarked.

Another authority demanded to be provided to the Constitutional Court was constitutional question. This concept gives a way to judges in common courts examining a case to send “questions” to the Constitutional Court. This was in the event that the case handled uses legal ground that violated the constitution. “The judge can inquire whether or not the legal ground violates the constitution. The case can be suspended,” he said.

Besides that, the Court was expected to do more than a judicial review, but also judicial preview. It means that the Court is not only reviewing Legalized Acts, but also the draft bill of an act. During the discussion of the Draft Bill, the Constitutional Court could be asked for opinion.

However, Head of Indonesian Legal Aids Foundation (YLBHI), Patra M Zen, said that to attain the authorities, there had to be another amendment of the 1945 Constitution. It was due to the fact that the constitution limitedly restricted the present authorities of the Constitutional Court. Article 24C stated that the Constitutional Court is authorized to review Acts against the 1945 Constitution, settling constitutional disputes between State Organs, settling political party dissolution, settling dispute over the result of general election, and in the question of President Impeachment.      

Principally, Patra agreed the expansion of the Constitutional Court authorities. However, he reminded that there were things to be technically considered. One of them was the ability of the nine judges to do such massive authorities. “To be given the authority to settle regional election cases, they have to work extra hard. Moreover if the constitutional complaint passage has been opened,” he said. For comparison, in Germany for the period of 1951-2005, there had been 157,233 questions of constitutional complaint. Of the number, the ones really met the qualification were 151,424. However, there were only 3,699 applications or 2.5% were successful.

Patra reminded that constitutional complaint was the last resource to seek justice. That was after all legal efforts existed had been tried. Still, he emphasized that there should be a tight elimination since the beginning to limit the constitutional complaint cases. Early elimination was needed, in order not to have too many cases. “We all know those advocates. Just because they think that there is a new legal effort, they can carelessly file the cases to the Court,” he added. What they were seeking was not justice, but to undergo all possible legal efforts.

Patra took as an example of extraordinary legal efforts for verdict review. He noticed that many of the verdict review pleas used improper new evidences (novum). “The evidences are not new; still they are used in case that they got lucky.”

A member of Commission III of the Parliament, Benny K Harman, also contributed in the discourse. He also supported the idea to expand the Court s authorities. Still, he advised not to wait for Constitutional Amendment to realize the ideas. In the case that a constitutional complaint file had arrived, the Constitutional Court had to accept that. “A judge (or justice – ed.) shall not refuse a case on the reason that there is no law regulating it,” said the politician from Democrat Party.

He commented that a question of constitution in the society had to be answered immediately. He took as an example that in the event of a regional decree directly violated the constitution. Indonesian Law had not arranged that. Therefore, if such claim arrived at the Constitutional Court, then the justices were obliged to accept such cases.

(Ali)

Source: http://www.hukumonline.com/detail.asp?id=20537&cl=Berita

Photo: Doc. MK PR/Ardli N

Translated by Yogi Djatnika / MK

---