Panel hearing of the judicial review of the Constitutional Court Law, Wednesday (20/12) in the Panel Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court held a follow-up 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 Wednesday (19/12). 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. 

In this second hearing, Hafidz conveyed a revision in the norm of the judicial review, which initially had been Article 57 paragraph (1) of the Constitutional Court Law along the phrase content of paragraphs, articles, and/or sections of the law, to become Article 57 paragraph (1) as a whole. In addition, Hafidz also added Article 28G paragraph (1) of the 1945 Constitution as a reference.

"I added the article because the Court had already decided Article 57 paragraph (1) against Article 28D paragraph (1) of the 1945 Constitution. So, [I was] worried that the case will be nebis in idem," Hafidz explained before the hearing led by Constitutional Justice I Dewa Gede Palguna accompanied by Constitutional Justices Manahan M.P.  Sitompul and Saldi Isra. 

In relation to the change of reference norm, the Petitioner also strengthened his legal standing in relation to Decision No. 30/PUU-XVI/2018 where he did not have certainty that the Regional Representatives Council truly had to be free of political party functionaries. 

Against the Law 

Hafidz, who was present without an attorney, stated that the reason for the case was changed because if the General Elections Commission (KPU) had been given authority by the 1945 Constitution to carry out the election, then only implement one decision among the three court decisions--the Constitutional Court Decision, the Supreme Court Decision, and the State Administrative Court Decision--the KPU will have been committing an act against the law. "On that framework, the Petitioner questions the action of carrying out the Court\'s decision by ignoring the decisions of other courts. According to the Petitioner, there is not yet any clause in the Constitutional Court Law regarding this matter," he explained. 

Therefore, the Petitioner through the petitum revision requested that the Court declare the article being reviewed contrary to the 1945 Constitution and did not have binding legal force insofar as it was not interpreted as \'anyone who exercise their authority given by statutory provisions and with good faith in order to carry out the decision of the Constitutional Court cannot be prosecuted in a civil or criminal court.\' 

The Petitioner had previously conveyed the legal uncertainty of the substance of Article 57 paragraph (1) of the Constitutional Court Law resulting from it only being 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. In addition, Hafidz had 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. 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.

Before closing the hearing, Justice Palguna ratified the case evidence submitted by the Petitioner and requested that the Petitioner wait for news of the proceedings from the Registrar\'s Office of the Court. (Sri Pujianti/LA/Yuniar Widiastuti)