Material judicial review hearing of the MD3 Law on Wednesday (21/3) in the Plenary Courtroom of the Constitutional Court Building. Photo by Humas MK/Ganie.
The Constitutional Court (MK) once again held a hearing to review Law No. 2/2018 on the People\\'s Consultative Assembly, House of Representatives, Regional Representatives Council, and Regional Legislative Council (MD3 Law), Wednesday (20/3) afternoon. The cases No. 16/PUU-XVI/2018, 17/PUU-XVI/2018, and 18/PUU-XVI/2018 were presided over by Constitutional Justice Suhartoyo accompanied by Constitutional Justices I Dewa Gede Palguna and Saldi Isra.
Petitioners of case No. 16/PUU-XVI/2018, represented by Victor Santoso Tandiasa as attorney, outlined several points related to the revision of the petition, including the composition and legal standing of the Petitioners. Victor stated there was addition and change to the Petitioners’ position, in that Petitioner III—originally Kurniawan, an individual—withdrew and became Petitioner I by joining Petitioner I on behalf of the Forum of Legal and Constitutional Studies (FKHK). This was because based on the FKHK extraordinary meeting Kurniawan was elected Secretary General and Bayu Segara as Chairman of FKHK. "Thus, Kurniawan and Bayu Segara became Petitioner I, namely FKHK, which is a legal entity whose establishment is based on a notary deed," Victor explained.
Andi Irmanputra Sidin as attorney of the Petitioner, further delivered other revisions related to the articles being reviewed, namely Article 73 paragraphs (3), (4), (5), and (6) and Article 122 letter l. "Because after it was passed into law, [letter k was changed to letter l]," Irman said.
Next, Irman added, is the review of phrases "no" and "after obtaining consideration from the Court Honor Board" in Article 245 paragraph (1) of the MD3 Law. "We requested it be interpreted as conditionally unconstitutional as long as it is not interpreted in 30 days the [Court Honor Board] does not give any consideration since the petition was accepted, then it is considered that subpoena and the witness summons of House members has nothing to do with the implementation of the duties of the House. Therefore, written approval is not required," Irman explained.
Deviating from Trias Politica
Meanwhile, on case No. 17/PUU-XVI/2018 filed by the Indonesian Solidarity Party (PSI), Viani Limadi as attorney explained the revision of the petition in the legal standing of the Petitioner, a political party that has been legally established based on the legislation and fulfill the qualification as petitioner in judicial review case. However, Viani added, the Petitioner at the time of the petition being filed had no seat in the parliament and so were not involved in the discussion and decision-making of the MD3 Law. "Thus, prima facie it is a party that does not have a conflict of interest related to the petition for review of the object of the petition filed to the Constitutional Court," Viani explained.
In her explanation, Viani also explained the constitutional impairment of the Petitioner due to Article 73 paragraph (3) of the MD3 Law if the function and the constitutional right of the House are implemented. According to the Petitioner, those are only in the framework of the exercise of inquiry right. In the Constitutional Court Decision No. 14/PUU-I/2003, Viani continued, the Constitutional Court gave an opinion on the summoning by the House as stipulated in Article 30 paragraphs (2), (3) and (4) of the MD3 Law so it can be explained that the article only applies in relation to inquiry right.
"So, House authority to order a subpoena not associated with inquiry right is an arbitrary act because it deviates from trias politica related to the division of the legislative, executive, and judicial authorities. And this creates legal uncertainty," Viani explained.
Potential Impairment
Meanwhile, Zico Leonard Djagardo Simanjuntak and Josua Satria Collins as Petitioners of case No. 18/PUU-XVI/2018 also submitted revision mainly related to the legal standing of the Petitioners by including evidence of media publication showing the active role of the Petitioners in writing and organizations in the field of law.
In addition, the Petitioners also included potential constitutional impairment that the Petitioners might suffer. "We have never been summoned, but our writings or our studies could be [sued]," Josua explained.
Leonard added that the Petitioners in their petitum state that Article 122 letter l of the MD3 Law is contradictory to the 1945 Constitution and has no binding legal status.
After all revisions to the petition were explained, Justice Suhartoyo explained that the results of the hearing will be discussed in the Justices’ Deliberation Meeting. Later the Petitioners will be notified by the Court Registrar regarding the continuation of the hearing and the petition filed to the Constitutional Court.
The Petitioners challenge Article 73 paragraph (3), Article 73 paragraph (4) letters a and c, Article 122 letter k, and Article 245 paragraph (1) of the MD3 Law. The provision that the Petitioners question is the subpoena of citizens and legal entities based on mass organizations by the House of Representatives. In the petition No. 16/PUU-XVI/2018, the Petitioners argue that the articles are an effort to meet the House of Representatives and the citizens as the holder of sovereignty. This is contradictory to the House’s constitutional design that is presented as an instrument to control the behavior of the authority rather than the behavior of the people.
Meanwhile, on the provision of the The House of Representatives\\' ethics council (MKD) as stipulated in Article 122 letter k of the MD3 Law, the Petitioners consider it contrary to the constitutional design of the House. The a quo article stipulates that the MKD may take a legal action and/or other steps against individuals, groups of persons, or legal entities that undermine the honor of the House and its members. In addition, the Petitioners claimed that Article 122 letter k of the MD3 Law has silenced the people’s criticism. In relation to the immunity right of House members as stipulated in Article 245 paragraph (1) of the MD3 Law, the Petitioners argue that such provision could threaten fair legal certainty and equal treatment before the law for every citizen. Therefore, they requested that the articles be declared contrary to the 1945 Constitution and be revoked. (Sri Pujianti/LA/Yuniar Widiastuti)
Thursday, March 22, 2018 | 18:07 WIB 104