---

The Applicant Muhammad Hafidz was interviewed by the media on Thursday March 12 at the Constitutional Court Building. Photo PR/Ganie

 

The Constitutional Court (Mahkamah Konstitusi –MK) was held first session of Case No.30/PUU-XIII/2015 filed by Muhammad Hafidz, Wahidin and Solihin scheduled on initial hearing, Thursday March 12 at Plenary Room MK. The provision reviewed on this case is Article 31A (4) Act No.3 Year 2009 of Second Amendment on Act No.14 Year 1985 of the Supreme Court (Perubahan Kedua Atas UU No. 14 Tahun 1985 tentang Mahkamah Agung). The Applicant argued that the provision has been detrimental to their constitutional rights, related to non-transparent review session process of ordinances and regulations made under any acts against such acts (peraturan perundang-undangan di bawah undang-undang terhadap undang-undang) on the Supreme Court (Mahkamah Agung –MA).    

“The Applicant cannot figure out the extent to which their petition reviewed and also cannot bring experts or witnesses to be heard, and with no transparent session, the Applicant has no chance to convince the judges towards the importance of petition they filed,” Hafidz explained in front of panel judges led by The Deputy Chief (Wakil Ketua MK) Anwar Usman.

According to Hafidz, the authority of ordinances and regulations review (pengujian peraturan perundang-undangan) possessed by the MA had different characteristics with the authority possessed by other judiciary bodies. He said the review by MK has characteristic in which the verdict is final and binding. In addition, the verdict on ordinances and regulations review will bind not only to the Applicant but also the community in general.  

“Public interest nuances on ordinances and regulations review is a very clear distinction with civil cases, criminal cases, and state administrative cases, which generally related to personal or individual interest against with other individuals or the Government,” Hafidz explained.

Lebih lanjut, Hafidz menyatakan bahwa tidak adanya pengaturan tentang proses pemeriksaan dalam pengujian peraturan perundang-undangan di bawah undang-undang akan mengakibatkan tidak adanya batas-batas hukum bagi MA dalam menjalankan kewenangannya. “Akan menjadi liar karena tidak ada ukuran-ukuran hukum atau batas-batas hukum yang jelas bagi Mahkamah Agung dalam menjalankan wewenangnya, yaitu salah satunya untuk memeriksa dan memutus sebuah permohonan pengujian ketentuan perundang-undangan di bawah undang-undang terhadap ketentuan peraturan perundang-undangan di atasnya,” kata Hafidz.

Furthermore, Hafidz stated that the lack of regulation in examining process on judicial review of ordinances and regulations made under any acts, would result in the absence of legal boundaries for the Supreme Court to exercise its authority. "It would be illegal because there are no clear legal measures or legal boundaries for the Supreme Court in implementing its authority, one of the examples is to examine and decide upon a petition of judicial review on ordinances and regulations made under any acts against such acts," said Hafidz.

Therefore in the petitum, Hafidz requested verdict to the judge panel, for MA in order to postpone entire petition examination of ordinances and regulations made under any acts against such acts. In addition, Hafidz also requested to the judge for granted his petition and declared Article 31A (4) Act a quo is contradicted with The 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945) and does not have legal binding, to the extent it is not interpreted that a petition for ordinances and regulations by MA is decided no later than 14 days, which the examination and verdict announcement is conducted via open-public session.

Responding to the petition, Court Panel advised to the petition. Constitutional Judge Wahiduddin Adams asked the Applicant to strengthen posita (reasons of petition). According to Wahiduddin, the Applicant should elaborate deeply on philosophical fundaments towards the importance of review and verdict announcement done via open session. Moreover, the Applicant also should elaborate the regulations related with the importance of review and verdict announcement conducted via open-public session.

Meanwhile, Constitutional Judge Suhartoyo asked the Applicant to attach the proof that the Applicant had filed judicial review petition to MK. Previously the Applicant once said to the judge panel that they recently filed judicial review petition to the MA on West Java Province Regional Regulation (Peraturan Daerah Provinsi Daerah Jawa Barat) Number 6 Year 2014 of Manpower Coordination (Penyelenggaraan Ketenagakerjaan). Suhartoyo also asked the Applicant to carefully notice and examine the prevailing regulations that regulated the judicial review of ordinances and regulations at MA.

“It is indeed need to be examined carefully whether the regulations are exist or not, but then only at the implementation process, it could be a problem or an (inappropriate) interpretation,” said Suhartoyo.

Whereas other Constitutional Judge Anwar Usman asked to the Applicant whether it is true the Article reviewed is Article 31A (4), because its provision only regulated the time-limit of judicial review completion at MA. According to Anwar, the more relevant provision of open-public session is Article 40 (2). "Well, the relation with session implementation, yes, mainly about open-public session is in Article 40 paragraph (2), why are you reviewed Article 31. Is that what you willing to, sir? It is probably you haven’t examined Article 40 paragraph (2), "said Anwar. Furthermore, the Applicant was given 14 days to revise the petition. (Triya IR/Prasetyo Adi N)

---