The Constitutional Court (MK) has decided to grant the petition in part to the Act No. 8 / 2011 on Amendments to Act No.24/2003 on the Constitutional Court. Verdict cases were with No. 48/PUU-IX/2011 and 49/PUU-IX/2011 read by the Chief Justice of the Constitutional Court, Moh. Mahfud MD, and was assisted by seven other constitutional judges.
Application No. 48 was to review the Constitutional Court Act and Act No. 35/2009 on Narcotics filed by Fauzan, while 49 requested by the Science Lecturer in Constitutional Law as Saldi Isra, Yuliandri, Zainul Daulay, Zainal Arifin Mochtar, Muchammad Ali Safa’at, Fatmawati, and Feri Amsari.
Ultra Petita
"To grant the petition partly. Article 45A and Article 57 Paragraph (2a) of Law No. 8 Year 2011 regarding Amendment to Act No. 24/2003 concerning Constitutional Court (State Gazette of the Republic of Indonesia Year 2011 Number 70, Additional State Gazette of the Republic of Indonesia Number 5226) contrary to the Act Constitution of the Republic of Indonesia Year 1945, "said Mahfud in the Plenary Session of the Constitutional Court on Tuesday (18/10).
The Court decided a ban ultra petita (beyond the petition), according to the Court that the character of the procedural law in the Constitutional Court, especially in a case testing of the Act is to defend constitutional rights and interests protected by the constitution, as a result of enactment of an Act that apply generally (erga omnes). Therefore, if public interest requires, the Constitutional Court should not be fixated only on request or petition is filed. "Even if the petition is granted from such concerns only one article alone, but if a particular article stated otherwise do not have binding legal force, and such article is the core section of the Act then the other chapters in the Act being applied for to be tested not likely to be treated again, "explained the Court.
In addition, the Court believes the decision of the Court of ultra petita commonly done in other countries and also in accordance with the principle of ex aequo et bono. Prohibition ultra petita only regulated in civil procedural law was understood to protect the interests of the parties and the development itself is allowed. "The first event is the birth of the institute constitutional review in the Federal Supreme Court of the United States in 1803 in the case of Marbury vs. Madison, which in its decision the Federal Supreme Court of the United States is far in excess of that requested (ultra petita)," the Court clearly shows the history of birth of judicial review ultra petita decision. While the Law on Narcotics-related testing, Petitioners argues the Court has not been proven and unwarranted by law.
Act One Unity
Related to the case 49, in the ruling read by Moh. Mahfud MD states, "To grant the petition of the Petitioners for the most part. Article 4 paragraph (4f), paragraph (4g), and paragraph (4h), Article 10, Article 15 paragraph (2) letter h along the phrase "and / or was a public officer", Article 26 paragraph (5), Article 27A paragraph (2) letter c, d, and e, subsection (3), paragraph (4), subsection (5), and paragraph (6), Article 50A, Article 59 paragraph (2), and Article 87 Act No. 8/2011 regarding Amendment to Act No. 24/2003 concerning Constitutional Court has no binding legal force. "
Against Petitioners’ argument regarding Article 50A of Law 8 / 2011 which regulates the Court in examining the laws against the 1945 Constitution did not use other legislation as the basis of legal reasoning, the Court believes that reasonable legal argument. Constitutional Justice M. Akil Mochtar express prohibition against the Court to use the other Act as the basis of legal considerations is to reduce the authority of the Court as an independent judicial power to hold a judicial order to enforce law and justice. The use of another Act, Akil continued, as the basis for legal reasoning precisely to create a fair legal certainty as specified in Article 28D paragraph (1) of the 1945 Constitution.
"In the practice of Court Decision relating to material testing the Court never used the Act as a basis for consideration, but in certain petitions, the Court must look at all the Act as an integrated system which must not conflict with each other so that when the Court found there was a legislation against the other Act, if it means conflict with the certainty of just laws as guaranteed by the 1945 Constitution. Therefore, according to the Court a quo article applies if it will limit the duties and functions of the Court in exercising the authorities granted by the 1945 Constitution. Based on the above considerations, the Court, the Petitioners’ arguments grounded according to the law, "explained Akil.
Unclear criteria
Furthermore, the Petitioners’ argument regarding the phrase "and / or was a state official" in Article 15 paragraph (2) letter h of Law 8 / 2011 does not provide clear criteria. Akil explained that because not all people who have become eligible for state officials to constitutional justice. Instead, it is clear Akil, many people who have never been, but state officials are eligible to be a judge of the constitution. "The vagueness of fair legal uncertainty that is contradictory to Article 28D paragraph (1) of the 1945 Constitution. Based on these considerations, according to the Court, the Petitioners’ arguments grounded according to the law, "he explained.
Seniors Open Policy
Furthermore, the argument concerning the applicant’s age restriction constitutional justice as provided for in Article 15 paragraph (2) Law no. 8 / 2011, considered by the Court reasoned law. In regard to the criteria of age, clearly Akil, 1945 Constitution does not specify a certain minimum age limit as generally accepted criteria for all positions or activities of government. That is, the 1945 Constitution gave to the forming of the Act to set it. "This is an open legal policy (opened legal policy), which at times can be changed by forming the Act in accordance with the demands of existing development needs. It is entirely the authority of the former Act that, whatever the choice, is not prohibited and does not conflict with the 1945 Constitution. Thus, the Petitioners’ argument regarding the provisions of the minimum age requirement is not unreasonable under the law, "he explained.
Five
Meanwhile, against the Petitioners’ argument that Article 26 paragraph (5) of Act 8 / 2011 is contradictory to Article 28D paragraph (1) of the 1945 Constitution, the Court gave consideration that the constitutional term of office of judges specified in Article 22 of Law on the Constitutional Court can not be interpreted other than five years , both at the same time appointed judges and for the constitution that replaced the constitution judges who quit before his term ends. Narrowing the meaning of Article 22 of the Constitutional Court Law with assistance is not allowed to judge the constitutional successor to hold office for five years is the violate the principle of a fair legal certainty guaranteed by the constitution. Additionally, explained Akil, different constitutional magistracy with the other public office because of the consistency and continuity factors, related both to the process and the resulting decisions.
"The only real consideration for a term of constitutional justice is the guarantee of consistency and continuity in the process and Court decisions heavily influenced by length of tenure of constitutional justice, related to the legal opinion and the independence of judges. Therefore, it would be proportionate and ensure legal certainty of fair and equal treatment before the law if the term of office of constitutional judge who replaces the five-year fixed. Thus, according to the Court, the argument of the Petitioners a quo reasoned according to the law, "said Akil.
Dissenting Opinion
Harjono as one of Constitutional Justice filed a dissenting opinion (dissenting opinion) in Case 49. With the testing decision on Article 50 of Act 24/2003, Harjono reveal the actual constitution of the Court, including judges do not take any advantage due to the stated Article 50 of Law 24/2003 of time as opposed to the Constitution and have no binding legal effect of the presence The article may cause the two norms are shared. "Although there are both conflicts and also allow the existence of double standards caused a norm which was enacted before the amendment of the Constitution of the norm while others enacted after the change of the Constitution," he explained.
In the present case the Court should be very carefully examined because the law relating to the Court directly. In consideration of Article 87 letter b of Law 8/2011menurut Harjono should be rejected. (Lulu Anjarsari / Miftakhul Huda/Yazid.tr)
Wednesday, October 19, 2011 | 21:56 WIB 144