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Muh. Daud Beureueh as Applicant’s Attorney delivers petition points at judicial review session on Act of Military Courts, on Tuesday (6/10) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

 

Funeral home services director Sumarmiasih files judicial review petition on Act Number 31 Year 1997 of Military Courts (UU Peradilan Militer). Her petition is registered in Case Number 118/PUU-XIII/2015. The Constitutional Court (Mahkamah Konstitusi –MK) holds preliminary session of her petition on Tuesday (6/10), at Plenary Room, the Constitutional Court Building. In petition points, she delivers that her constitutional rights is violated by Article 353 Act of Military Courts.

Article 353 Act of Military Courts stated:

“This Act shall take effect on the date of enactment. Specifically on Military Administrative Procedural law, its implementation is regulated by Government Regulation not later than 3 years after the enactment of this Act.” (“Undang-undang ini mulai berlaku pada tanggal diundangkan, khusus mengenai Hukum Acara Tata Usaha Militer, penerapannya diatur dengan Peraturan Pemerintah selambat-lambatnya 3 (tiga) tahun sejak Undang-Undang ini diundangkan”).

 

Sumarmiasih is director of Sukhawati Loka Funeral Ltd., a legal business entity that provides funeral home services on Gatot Subroto Army Hospital (Rumah Sakit Pusat Angkatan Darat (RSPAD) Gatot Subroto), Central Jakarta. She rents a plot of land from Army Hospital Primary Cooperative (Primer Koperasi RSPAD) with agreement status as cooperation partner for land utilization and intended as Army Hospital Funeral Home.   

As time goes on, Army Head Staff issued telegram by number: ST/1944/2015 dated July 15, 2015 concerning the order of cooperation termination on army’s land utilization C.q KODAM JAYA, Jl. Abdul Rahman Saleh No. 24, Central Jakarta which used as Army Hospital Funeral Home. Moreover, the Commander of Jaya/Jayakarta Military Region (Panglima Komando Daerah Militer Jaya/Jayakarta) later issues Letter Number B/2131/VII/2015 concerning the Second Warning of Army Hospital Funeral Home Emptying. 

Due to both letters, the Applicant sues Chief II of Jakarta Military Court regarding Indonesian Army Administrative Lawsuit dated August 4, 2015. By Letter Number: W2-Mil/293/B/VIII/2015 concerning Answer on Indonesian Army Administrative Lawsuit dated August 7, 2015, the Chief II says the implementation of Military High Court II is yet regulated by Government Regulation, particularly on Military Administrative Procedural Law.

According the Applicant, such condition is occurred because Article 353 Act a quo is not implemented, so Jakarta Military Court II argues cannot examine Military Administration case which filed by the Applicant. Due to it, the Applicant considers she doesn’t obtain legal certainty. “The problem is because lack of opportunity in Military Administrative Court which unable to process the lawsuit only because the absence of legal instrument in procedural law,” said Muhammad Daud as Applicant’s Attorney.

Thus, Daud further says, the Applicant requests the Court to grant entire petition. “Declares Article 353 Act of Military Courts contrary to the 1945 Constitution and along it is interpreted as Military Administrative Procedural Law equates its procedure as State Administrative Procedural Law as stipulated in Act of State Administrative Courts.. (Hukum Acara Tata Usaha Militer dipersamakan tata caranya sebagaimana Hukum Acara Tata Usaha Negara yang diatur dalam UU PTUN..)” explained him.

Responding the petition, Justice Panel consists of Constitutional Justice Suhartoyo and Constitutional Justice Aswanto gives revision input. Suhartoyo advises that the Applicant revise petition arguments because Applicant’s constitutional loss is unclear. According to him, Applicant’s loss is because cooperation default (wanprestasi), not a norm constitutionality problem. “Your loss shall be examined carefully whether or not it caused by norm constitutionality,” said him. 

Aswanto also says similar statement, According to him, the problem is concerning on the lack of Government Regulation governing military administrative procedural law in Military Courts. “Government Regulation legislators is the party who responsible if Government Regulation is yet formed. Your problem is not on the Act that considered violates Constitution norms,” said him.

Justice Panel gives 14 workdays for the Applicant to revise petition. The next session is scheduled on revision examination. (Lulu Anjarsari/IR/Prasetyo Adi N)

 

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