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Muhammad Hafidz as Principal Petitioner conveying the principal points of the petition of the judicial review of the Constitutional Court Law, Thursday (6/12) in the Panel Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court held the preliminary hearing of the judicial review of Law No. 8/2011 on the Amendments to Law No. 24/2003 on the Constitutional Court (MK Law) in the Panel Courtroom of the Constitutional Court on Thursday (6/12). The petition registered as No. 98/PUU-XVI/2018 was filed by Muhammad Hafidz, who was once an individual Regional Representatives Council (DPD) candidate in the 2014 elections. 

Hafidz deemed Article 57 paragraph (1) of the Constitutional Court Law certain along the phrase content of paragraphs, articles, and/or sections of the law has harmed his constitutional rights. Article 57 Paragraph (1) of the Constitutional Court Law reads, "The ruling of the decision of the Constitutional Court declaring that the content of paragraphs, articles, and/or sections of the law contradicts the 1945 Constitution of the Republic of Indonesia renders such content of paragraphs, articles, and/or sections devoid of legal binding force and effect." 

According to Hafidz, the legal uncertainty of the substance of Article 57 paragraph (1) of the Constitutional Court Law was because it only applied to the phrase content of paragraphs, articles, and/or sections of the law that the Constitutional Court had declared contrary to the 1945 Constitution. "What if there is a ruling by another judicial institution, when no legal remedies, in which either its legal considerations or ruling contradicts the ruling of the Constitutional Court that was made prior? Thus, according to the Petitioner, the source of legal uncertainty lies in the a quo article along the phrase content of paragraphs, articles, and/or sections of the law," Hafidz explained before a panel chaired by Constitutional Justice I Dewa Gede Palguna, in the presence of Constitutional Justices Aswanto and Saldi Isra.

In addition, Hafidz admitted that he had previously proposed the idea of the formation of the Regional Representatives Council (DPD) as regional representatives and not representatives of political parties. In this case, he has obtained legal certainty through the Constitutional Court Decision No. 30/PUU-XVI/2018 on July 23, 2018 declaring that the phrase other occupations must also be interpreted as including political party functionaries. Regarding the ruling, the General Elections Commission (KPU) issued KPU Regulation No. 26/2018 that affirms the requirements for resignation of prospective DPD members from the management of political parties. Several prospective DPD members had objected and submitted a judicial review petition to the Supreme Court in Case No. 65/2018. After the Supreme Court issued a decision, the Jakarta District Administrative Court issued a similar one. According to the Petitioner, the two decisions seem to deny the decision of the Constitutional Court that had previously provided the requirements for resignation of DPD member candidates from the management of political parties.

"Due to the Supreme Court\'s and Jakarta District Administrative Court\'s rulings, the Petitioner\'s constitutional right to obtain legal certainty of the Constitutional Court\'s decision is not limited to the content of paragraphs, articles, and/or sections of the law that is devoid of legal binding force, resulting from having been declared contrary to the 1945 Constitution, but also the decisions of other judicial institutions that base their legal considerations of paragraphs, articles, and/or sections of the law  that have been declared contradictory by the Constitutional Court," explained Hafidz. 

Therefore, in the petitum the Petitioner requested that the Court grant his petition and declare the phrase content of paragraphs, articles, and/or sections of the law in Article 57 paragraph (1) of the Constitutional Court Law contrary to the 1945 Constitution. 

Arguments

Responding to the petition, Constitutional Justice Saldi Isra said that there had been intensive discussions on the Constitutional Court\'s decisions, the judicial review at the Supreme Court, and State Administrative Courts, mainly related to the fate of the rule of law in the community. Therefore, he hoped that the Petitioner affirm his arguments not only to mention legal uncertainty from the non-implementation of a court ruling, but also added with the impacts of the implementation of the law that could endanger the structure of the rule of law. "Maybe you can add an argument if there must be a new interpretation of Article 57 of the Constitutional Court Law, so that the Court is not motivated to try concrete cases," he suggested. 

Meanwhile, Constitutional Justice I Dewa Gede Palguna conveyed the need for the Petitioner to distinguish the elaboration of his legal standing and reason of the petition. He believed that the legal standing currently only described the impaired constitutional rights. In the reason for the petition, the Petitioner had been given space to provide arguments on his losses. "So, you can elaborate on the reasons for the petition with various arguments that confirmed the losses you suffered," Justice Palguna explained. 

Before closing the session, Justice Palguna reminded the Petitioner to submit the petition revisions no later than Wednesday, December 19, 2018 at 10.00 a.m. to the Registrar\'s Office of the Constitutional Court. (Sri Pujianti/LA/Yuniar Widiastuti)

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