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Constitutional Court (MK) researcher Pan Mohamad Faiz welcoming Law Faculty of Muhammadiyah University of Magelang, Tuesday (23/1). Photo by Humas MK/Ganie.

Constitutional Court (MK) researcher Pan Mohamad Faiz welcomed 38 students and 6 lecturers from the Law Faculty of Muhammadiyah University of Magelang, Tuesday morning (23/1/2018) in the Delegation Room. 

Faiz touched on the history of judicial review, the monumental Marbury v. Madison case, which was decided by the United States Supreme Court in 1803. This first judicial review case, where the law made by Congress was annulled, is referred to in various literatures as the world’s first judicial review. However, two centuries earlier, the judicial review of the Bonham Case, also known as Hayton v. USA, had taken place in England.  

Marbury v. Madison inspired Austrian constitutional law expert Hans Kelsen through the tier theory to form the Constitutional Court in Austria, which was finally formed in 1920 as the world’s first constitutional court. Then the Czech Republic claimed that the Czech Constitutional Court was the first one in the world. A few months before the Austrian Constitutional Court was formed, the Czech Constitutional Court had already existed but had not yet functioned. Therefore, history recorded the Austrian Constitutional Court as the first constitutional court. 

Faiz also explained that there are two judicial review models: decentralized (American) and centralized (European). In the decentralized model, judicial review can be decided through the Supreme Court or a general court whereas in the centralized model, it can be decided through an independent and separate judicial institution such as the Constitutional Court. 

The history of judicial review in Indonesia started when Mohammad Yamin proposed a Supreme Court for reviewing laws. The idea was rejected by Soepomo the Constitution did not follow trias politica and because there were not many qualified law graduates at that time. After more proposals and rejections to judicial review in Indonesia, the Constitutional Court of the Republic of Indonesia was established in August 13, 2003

Faiz said further that the Constitutional Court has four authorities and one obligation. The first authority is to review laws against the Constitution. It also decides on disputes over the authority of state institutions, whose authority was granted by the 1945 Constitution. The Court also decides on the dissolution of political parties and on disputes about the results of general elections. The obligation is to give a decision on the opinion of the House that the president and/or vice president are suspected of violating the law or committing disgraceful acts. He also said that the Court also functions as guardian of the Constitution, ideology, and democracy; protector of human rights and the citizens’ constitutional rights; and final interpreter of the Constitution.

Constitutional Court Decision on LGBT

In the question-answer session, a student asked about the much-publicized Constitutional Court decision related to LGBT. The public believed the Court legalized LGBT and extramarital cohabitation.

"In fact, if we read carefully the considerations and verdict of the Constitutional Court’s decision, none of the words LGBT or extramarital cohabitation are mentioned in it, much less the order to legalize or allow it. The Court actually did not reject the idea of the petitioners. The Court also did not think that the norms of the criminal law that were petitioned were complete. However, to complete the norms of decency is entirely the authority of legislators, the House and the Government, through criminal policies. The Constitutional Court is only a negative legislator that cannot form laws," Faiz explained.

Another student asked about the study by foreign researchers of the Constitutional Court of the Republic of Indonesia. Faiz answered, among others, a German researcher measured the extent to which media publications influenced the Constitutional Court’s decision. In addition, an Australian researcher discussed the accountability of the Constitutional Court’s decision from 2003 to 2005. (Nano Tresna Arfana/LA)

Translated by: Yuniar Widiastuti

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