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Constitutional Court (MK) has always relied and follow all the laws of formal law does not hinder the realization of justice. However, if the law is considered resistant to realize justice, the Court will push through so that justice can be realized. For the court, digging the sense of justice is a lifelong obligation attached. Because digging sense of justice is the most important message of the Constitution of 1945, which must be implemented by judiciary institution.

This was stated by Chief Justice of Constitutional Court M. Akil Mochtar in his talk at the public lecture organized by the Master of Law Satya Wacana Christian University (UKSW), Salatiga, Friday (09/20/2013) at the Multipurpose Hall of the Faculty of Law entitled "Creation of Norms new ruling by the Constitutional Court".

Akil on that occasion also asserted, grounding the constitutionality of requiring decision of the Court is directed to continue to enforce the law and justice. Even if necessary and forced the Court must confront the formal provisions of the law. On this context, light Akil, the Court seeks fully understand their duties and functions that were not simply resolve constitutional disputes, but also to ensure public order based on justice. Akil also explored the constitutional condition that develops extraordinary that the Court must always respond. "Therefore, the Court also responded to the steps and breakthroughs often considered extraordinary," he explained.

In general, described by Akil that many critics said, as designed initially if Parliament and the Government as the legislature acts as a positive legislator, the legislator of the court is negative. As a negative legislator, the court only has to declare the articles in the bill or not contrary to the constitution. That is, the Court is not possible to create a new norm in its decision. Position of the constitution and the role of the Court as a guardian of the constitution, continued Akil, it is possible that the Court made ​​a ruling confirms norm Constitution  "For example, related to the meaning of "state-controlled" as referred to in Article 33. Or, referred to as a prerequisite for the unity of indigenous people as desired Section 18B," said the former member of the House of Representatives.

Then, according to Akil, the decision of the Court was to create a new norm as a result of a Constitutional Court interpretation of the Constitution. This is done to avoid the conflict between the norms of equal laws, norms vagueness, and the decision of the Constitutional Court to prevent and fill the legal vacuum or incompleteness complement the norm in the law.

In the context of creating a new norm through this decision, the Court did at least at least two ways . The first, when in its decision, the Court declared unconstitutional a phrase and declared no longer have binding force. And second, through a ruling that declared unconstitutional statutory provision unconstitutional conditional or unconditional," said Akil.

In many instances, the decision of the Court broke through for example the formal provisions related to the decision of the Court itself determined verdict stating simply unacceptable petition, the petition is granted, and the petition was denied. But the Court, clearly Akil, for the sake of making a breakthrough with the substantive fairness in sentencing and parole unconstitutional constitutional conditional.

"Decision of the Constitutional Court declared unconstitutional the conditional mean that a statutory provision does not violate the constitution by giving meaning and necessity requirements to state agencies in the implementation of a statutory provision to address the Court on the interpretation of the provisions of the Act tested. If the conditions are not fulfilled or else interpreted by state agencies that implement them , then the provisions of law that have been tested can be proposed to be re-examined by the Constitutional Court," said Akil. As for the conditional mean ruling unconstitutional a provision could violate the constitution if it does not meet the requirements specified in the Constitutional Court ruling.

Akil said that it was not exactly remember when the super body institution called the relationship paradigm constitutional structure of state institutions in the post- 1945 changes no longer be vertical - hierarchical, functional- but horizontal. "Thus, state institutions are in a position parallel and equal. Court’s discretion in interpreting the constitution was not without limits. Because there are signs that restrict constitutional signs Court," said Akil convincing.

 

The public lecture was moderated by Umbu Rauta attended by Rector Rev. John A. Titaley, Dean of the Faculty of Law Krishna Djaja Darumurti, Head Master of Law Tri Budiyono, civilian officials, police, and military members and lecturers of Salatiga and students of the Faculty of Law and Master of Law UKSW Salatiga. ( Hidayat / mh )

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