The Petitionerâs Attorney, Adnan Buyung Aziz files a judicial review on the Constitutionality of Law Number 37 Year 2008 regarding the Ombudsman of the Republic of Indonesia (the Ombudsman Law) and Law Number 25 Year 2009 regarding Public Services (the Public Services Law), Monday (25/10).
Jakarta, MKOnline – Law Number 37 Year 2008 regarding the Ombudsman of the Republic of Indonesia (the Ombudsman Law) and Law Number 25 Year 2009 regarding Public Services (the Public Services Law) were filed for judicial review to the Constitutional Court (the Court), Monday (25/10), at the Court’s Building. The case registered with the Registrar’s Office of the Constitutional Court under Number 62/PUU-VIII/2010 was filed by the Mayor of Makassar, Ilham Arief Sirajuddin (Petitioner I), the Ombudsman Institution of Makassar Municipality (Petitioner II), Regional Ombudsman Institution of DIY Province (Petitioner III), Private Ombudsman Institution of DIY Province (Petitioner IV), Regional Ombudsman of Asahan Regency (Petitioner V), NGO KOPEL (Petitioner VI) and Bahar Ngintung (Petitioner VII).
In their petition, the Petitioners, through their attorney, Adnan Buyung Aziz revealed that Article 43 paragraphs (1) and (2) of the Ombudsman Law as well as Article 46 paragraphs (3) and (4) of the Public Services Law are contradictory to Article 18 paragraphs (2) and (6), Article 28C paragraph (2), Article 28D paragraph (3), Articles 28E and 28F of the 1945 Constitution. Article 43 paragraphs (1) and (2) of the Ombudsman Law states that “(1) If deemed necessary, Ombudsman may establish a representative office in regions at the province or regency/municipality level; (2) The representative office of Ombudsman as intended in paragraph (1) shall have hierarchical relation with the Ombudsman and shall be chaired by the head of representative office”. On the other hand, Article 43 paragraphs (1) and (2) of the Public Services Law states that “(3) Ombudsman must establish a representative office at the regional level which of hierarchical nature to support the duties and functions of ombudsman in public services activities; (4) The ombudsman representative office at the regional level as intended in paragraph (3) shall be established by no later than 3 (years) as of the promulgation of this Law”.
“Two years after the ratification of the said Laws, Petitioner I up to Petitioner V would not allowed to use the name of Ombudsman. If they insisted on using such name, they would be considered illegal. Furthermore, Article 43 paragraphs (1) and (2) of the Ombudsman Law contains the word ‘may’, while Article 46 paragraphs (3) and (4) of the Public Services Law uses the word ‘must’. We consider such provisions to ambivalent and ambiguous,” he said.
In response to the Petitioners’ petition, Constitutional Justice, Hamdan Zoelva as the Chairperson of the Panel of Justice recommended the Petitioners to revise one of their petitum requesting the Court to legalize the Petitioners as the Ombudsman in their respective region. “The Court only has the authority to conduct judicial review on the constitutionality of an article. In our view, the Petitioner’s petitum requesting us to determine the existence of an institution or body is not within our domain,” he said
At the same time, Constitutional Justice, Maria Farida Indrati explained to the Petitioners that they have to provide a clear description that the Ombudsman managed by the Petitioners has already been adjusted to the Laws a quo. “The Court has no authority to add new norms. However, if the Petitioners wanted for the Articles a quo to be conditionally constitution, the Petitioners must support the argumentation that they had establishes ombudsman as mandated by the Laws a quo. Otherwise, there would other ombudsman in regions which are contradictory to the mandate of the Articles a quo,” she said.
On the other hand, Constitutional Justice, M. Akil Mochtar advised the Petitioners to revise their legal standing. “Legal standing is the entry way of this petition. The Petitioners had failed to provide a clear description of such matter. It is insufficient for the petition to only mention Articles guaranteeing your (the Petitioners, red.) constitutional rights in 1945, but it must also elaborate the construction. Moreover, this case has a number of Petitioners. This also means they have different legal standing,” Akil said.
According to Akil, the Petitioners were focusing the principal petition more on the naming of Ombudsman. Akil added that this is directed more toward an open legal policy. “Does this include in the issue of the constitutionality of Article? As for the use of word ‘may’ in Article 43 paragraphs (1) and (2) the Ombudsman Law and the word ‘must’ in Article 46 paragraphs (3) and (4) of the Public Services Law, in my opinion, it is only the matter of legal drafting, rather than the constitutionality of Articles,” he said.
The Petitioners were given the opportunity to revise the petition within 14 days and the next agenda would be to hold hearing for revised petition. (Lulu Anjarsari/mh)
Monday, October 25, 2010 | 14:47 WIB 199