Civics Teachers of Penabur Junior High School visited the Constitutional Court

Constitutional Justice Maria Farida Indrati received the visit of Civics Teachers of Penabur Junior High School Jakarta, Tuesday (19/10).

Jakarta, MKOnline – One of the authorities of the Constitutional Court is to decide upon electoral disputes, including in regional head general election, which is currently being heard by the Constitutional Court. 

“MK hears electoral disputes in regional head general elections in the event that one of the parties involved has been harmed and believes that there has been fraudulences in the Regional Head General Election. Up to the present, there have been 189 cases of regional head election registered with the MK and the largest number cases filed was recorded in July and August 2010”, said Justice Maria Farida Indrati to the Civics Teachers of Penabur Junior High School Jakarta who visited the Constitutional Court on Tuesday afternoon (19/10).   

Maria continued her explanation by stating that sometimes the Constitutional Court makes decision to order the General Election Committee to administer a reelection. Such decision is made because, for example, there has been a miscalculation of votes, miscast of vote and conflicting opinions of parties affirming and disaffirming the votes. 

“For example, some polling stations declare the result of the general election is valid, while the other polling stations declare it invalid. In such condition, a recount can be organized”, explained Maria.  

In addition to discussing the Regional Head General Election issue, Maria also gave long explanation about the main authority of the Constitutional Court, namely the authority to conduct judicial review of Laws against the Constitution. In relation to this authority, Maria explained the history of judicial review in the world, which was started by the Marbury vs. Madison case that included the nullification of provisions related to the appointment of judges (Judiciary Act. 1789). The aforementioned case became the basis for the authority of the Supreme Court of the United States of America to conduct judicial review. 

Subsequently, there was a brilliant idea conveyed by Hans Kelsen which led to the formation of the Constitutional Court of Austria in 1920. According to Kelsen’s idea, it is necessary to have an organ to conduct judicial review whether or not a legal product is contradictory to the constitution in order to guarantee the implementation of the provisions of the constitution as the highest law. 

Meanwhile, in Indonesia, the idea of conducting judicial review of laws had already been conveyed since the days of struggle by Mr. Moh. Yamin who proposed the formation of a Balai Agung (Supreme Body) - a body similar to the Supreme Court) to be given authority to conduct judicial review of laws. However, Yamin’s proposal was not supported by Soepomo since the 1945 Constitution does not adopt the trias politica principle and there were not many sarjana hukum (legal scholars) having experience in such matter.

In 1970, Ikatan Sarjana Hukum (Association of Legal Scholars) proposed that the Supreme Court should be given the authority to conduct judicial review of laws. However, the idea was not realized as well. Subsequently, Article 5 Paragraph 91 of Decree of the People’s Consultative Assembly No. III/MPR/2000 stipulated that “the People’s Consultative Assembly shall have the authority to conduct judicial review of laws against the 1945 Constitution ...” Unfortunately, the aforementioned legal basis did not led to the formation of a new institution to conduct judicial review of laws.

It was not until the amendments to the 1945 Constitution, precisely on August 13, 2003, the Constitutional Court of the Republic of Indonesia was established and given the authority as previously mentioned. In addition to the aforementioned authority, the Constitutional Court of the Republic of Indonesia has other authorities, namely the authority to decide disputes among state institutions and to decide upon the dissolution of political parties as well as an obligation of the Constitutional Court of the Republic of Indonesia, to decided upon the opinion of the People’s Legislative Assembly concerning alleged violations by the President and/or Vice President according to the Constitution. (Nano Tresna A./mh)

Wednesday, October 20, 2010 | 15:27 WIB 263