Chief Justice Anwar Usman speaking at the Sharia Law Week at the Maulana Malik Ibrahim State Islamic University, Malang (26/10). Photo by Humas MK/Hamdi Vigo.

Chief Justice Anwar Usman speaking about the Procedure of Judicial Review of Laws (PUU) and Transformation of Islamic Law Values in PUU Cases at the Sharia Law Week at the Maulana Malik Ibrahim State Islamic University, Malang (26/10/2018).

He said that the emergence of the constitutional court started with Marbury v. Madison in 1903. In the case, a provision on the appointment of judges was repealed (Judiciary Act 1789). It also became the foundation to the judicial review authority of the United States Supreme Court.

The Constitutional Court was introduced as a concept by Austrian legal expert Hans Kelsen (1881-1973). He said that the implementation of constitutional provisions of legislation could be effectively guaranteed if an organ outside of the legislative branch was tasked with assessing whether a product of law was constitutional or not, and to repeal it when the organ deemed it unconstitutional.

For that reason, a special organ referred to as the Constitutional Court can be established, or the judicial review authority can be given to a general court, especially the Supreme Court.

Kelsen’s idea of judicial review matches that by Muhammad Yamin in the Investigating Committee for Preparatory Works for Independence (BPUPK) session. He proposed that the Supreme Court be given an authority to “compare” laws. However, his proposal was rejected by Soepomo who argued that the concept in the 1945 Constitution that was being formulated was not separation of power but distribution of power, in addition to the duty of justices being applying laws, not reviewing them. The judicial review authority was seen to be against the supremacy of the People’s Consultative Assembly (MPR). In addition, as a newly-independent country, Indonesia did not have experts on the issue and any experience on judicial review. Therefore, M.  Yamin’s idea was not adopted by the 1945 Constitution.

Justice Anwar further said that Islamic values have been adopted in constitutional stipulations., although Indonesia is not an Islamic state. "For example, the first precept of Pancasila is certainly the same the first verse of Al Ikhlas," he explained. He also said that the address to God in the Constitution indicates that Indonesia puts God first.

He also explained that the Court had reviewed a law related to Islamic law and made decisions in relation to 18 cases on the issue, for example the Marriage Law. in the decision, the Court quoted surahs Ar-Rum verse 21 and An-Nisaa verses 1,  3, and 29 to regulate polygamy.

As an alumnus of an Islamic university, he hoped Islamic university alumni will play important roles in the country, so that many more Muslims will be able to strive with knowledge while practicing their Islamic values. (Utami/LA/Yuniar Widiastuti)