Act of the Supreme Court Sued Due To Reconsideration Limitation
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(Left-Right) Muhamad Zainal Arifin as an Applicant accompanied by Applicant’s Attorney Riko Wibawa Sitanggang and Heru Setiawan attended the inaugural session of judicial review on Act of Supreme Court (Undang-Undang Mahkamah Agung –UU MA) on Tuesday (21/4) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie 

 

 

Reconsideration (peninjauan kembali --PK) limitation at the Supreme Court (Mahkamah Agung –MK) –which could file only once–, was again sued. The judicial review on Article 66 (1) Act Number 3 Year 2009 of the Supreme Court (Undang-Undang Mahkamah Agung –UU MA) and Article 24 (2) Act No. 48/2009 of Judicial Authority (Undang-Undang Kekuasaan Kehakiman –UU Kekuasaan Kehakiman) was filed by an advocate, Muhammad Zainal Arifin.

According to the Applicant, the provisions on articles a quo were potentially detrimental to him because he was unable to enforce the law and justice over injustice and arbitrariness suffered by his client. It was because; criminal case consideration for the second time was potentially rejected, whereas he as an advocate had gathered several novums which could affect the previous verdict.

Moreover, the Constitutional Court had declared Article 268 (3) Act Number 8 Year 1981 of the Criminal Code (Hukum Acara Pidana) which stated ‘request of reconsideration towards verdict can only conducted once’ contrary to the Constitution through Constitutional Court Verdict Number 34/PUU-XI/2013. However, the Supreme Court decided the reconsideration –which could only conducted once– based on Supreme Court Circular (Surat Edaran Mahkamah Agung) Number 7 Year 2014 which referred to Article 66 (1) UU MA and Article 24 (2) UU Kekuasaan Kehakiman.

The Applicant assessed, inconsistency between Article 66 (1) UU MA and Article 24 (2) UU Kekuasaan Kehakiman with Constitutional Court Verdict Number 3/PUU-XI/2013 which had canceled the provision of criminal case reconsideration, had violated the principle of law state and legal certainty as stipulated on Article 1 (3) and Article 28D (1) the 1945 Constitution. If the limitation of reconsideration applied to criminal case, the Applicant added, the limitation had contrary to the principle of justice which highly regarded.

“By the reconsideration limitation of criminal case, it cause constitutional rights of citizens for justice become violated,” said Applicant’s Attorney Riko Wibawa Sitanggang at inaugural session of case number 45/PUU-XIII/2015 on Tuesday (21/4) at the Constitutional Court Building.

The Applicant argued justice cannot be limited by time or formality provision which limit extraordinary legal action such as reconsideration. It was because, the substantial novum –which previously didn’t discovered– may be found during the reconsideration after the reconsideration filed and decided as stipulated on Constitutional Court Verdict Number 34/PUU-XI/2013.

Related with legal standing, the Applicant adhered to Constitutional Court Verdict Number 27/PUU-VII/2009 that stated the Constitutional Court received an advocate’s legal standing in reviewing UU MA because an advocate in carrying out his duty would be interacted with the MA. Therefore, an advocate directly required legal certainty for any matter related with the MA.

Therefore, the Applicant requested to the MK to declare Article 66 (1) UU MA and Article 24 (2) UU Kekuasaan Kehakiman contrary to the UUD 1945 if the reconsideration for criminal case only could filed once.

Legal Standing

Responding the petition, Justice Panel led by Deputy Chief Anwar Usman questioned Applicant’s legal standing as principal applicant whose profession is advocate. According to Constitutional Justice Patrialis Akbar, a party which potentially harmed its constitutional rights by the Act a quo was the litigants; in other words, the Applicant’s client. “So, do not based on supposition to other people,” said him.  

Justice Panel was also advised to the Applicant to focus on the Articles reviewed. It was because the Constitutional Court had authority to review legislations towards the UUD 1945. Related with the SEMA, the Applicant could question the Constitutional Court verdict which was erga omnes. “You can question on how the Constitutional Court verdict, which is erga omnes, is it automatically affects the legislation which has similar substance? That is just (individual, red ) interpretation,” added Patrialis. (Lulu Hanifah/Prasetyo Adi N.)  


Tuesday, April 21, 2015 | 23:11 WIB 188