Act No. 8 / 2011 on Amendments to Act no. 24/2003 on the Constitutional Court close the space of ultra petita (giving decisions beyond what is requested the applicant). As a result, the Court will be difficult, or even cannot anymore, which aims to provide decision substantive justice. "These restrictions are contrary to the principle of independent judicial power," said Muhammad Zainal Arifin, Petitioner’s attorney on case no. 48/PUU-IX/2011.

He disclosed the preliminary hearing on Friday (5 / 8) at the Plenary Room. Panel of judges hear these cases consist of Constitutional Justice M. Akil Mochtar (Panel Chair), Hamdan Zoelva, and Harjono.

In his petition, Petitioner tested the two laws at once. In addition to testing the Constitutional Court Law, the Petitioner also tested the Law No. 35/2009 concerning Narcotics. To the Constitutional Court Law, the Petitioner test of Article 45A and Article 57 paragraph (2) letter a and c. While the petition against the Narcotics Act test of Article 112 paragraph (1) and Article 127 paragraph (1) letter a.

Zainal said that there are at least seven reasons for testing the Change of the Constitutional Court Law. One is the substance of the article are not supported by good academic texts. "The substance of the article suddenly directly included in the draft," he said.

In addition, he said, provisions restricting or prohibiting the Constitutional Court to decide the ultra petita contrary to the jurisprudence of the Constitutional Court over the years. At least, he said, there is five Constitutional Court’s decision that contains an ultra petita. "Also contrary to the history of judicial review in the world," he explained. "Judicial review in the world based on the verdict even ultra petita."

In fact, he asserts, the limitation is also contrary to the principle of independent judicial power and independence. "Independence has been taken and reduced by Article 45A and Article 57 paragraph (2) letter a and c," he said. He also argues, if it wants no restrictions then it should be regulated in the Act of 1945, not in the form of legislation.
In essence, the Petitioner argued, ‘ban’ on the Court to issue a conditional ruling was constitutional or unconstitutional, or potentially result in loss of constitutional rights. Because, in one petition, the Petitioner asks the Court declared unconstitutional articles that tested the conditional.

Narcotics Act relating to the test, the Petitioner argues, there has been inconsistency punishment for addicts or drug users. Because, according to the Petitioner, the provisions of the Narcotics Act on the one hand ensure the rehabilitation, but on the other side set the punishment. "Article punishment we deem contrary to the constitution," said Zainal.

He stated provisions in the Narcotics Act at least contradictory to Article 28D paragraph (1), Article 28G Paragraph (1) and (2), and Article 28H Paragraph (1) and (2) of the Constitution of 1945. "Not in line with the principle of state law and the principle of legal certainty," he added.
To note, the Principal Applicant, Zainal, is currently in the process of trial because the accused as a user of narcotics. "Our clients are entitled to undergo rehabilitation, not punishment," he explained. Therefore, the Petitioner also requested that the Constitutional Court declared unconstitutional articles that are tested unless interpreted as rehabilitation punished with penalty requirements aimed at addicts or drug users.

After listening to the Petitioner, the Panel also gave some suggestions and advice. According to Hamdan Zoelva the petition is to test the Narcotics Act. So, he advised the Petitioner to sharpen the focus and better description of the petition-related test of the Narcotics Act. Panel Chairman Justice M. Akil Mochtar even argues, the petition has not been qualified. "Because there is no description of the constitutional harm," he said. He then suggested the Applicant to examine the Narcotics Act only. (Dodi/mh/Yazid.tr)