Ruling hearing of the judicial review of the Judicial Power Law  and the Constitutional Court Law, Thursday (24/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court rejected the entire petition of the judicial review of the 14-day deadline of the examination of legislation under the law filed by Husdi Herman and Viktor Santoso Tandiasa. The provision was stipulated in Article 31A paragraphs (1) and (4) of Law No. 3/2009 on the Second Amendment to Law No. 14/1985 on the Supreme Court and Article 20 paragraph (2) letter b of Law No. 48/2009 on Judicial Power. “The ruling heard, rejected the Petitioners’ petition for its entirety,” said Chief Justice Anwar Usman in the presence of other constitutional justices in the ruling hearing on Thursday (24/1) afternoon.

The Petitioners had previously argued that norm under review was derived from the provision of Article 24A paragraph (1) of the 1945 Constitution that gives the Supreme Court the authority to examine legislation under the law against the law. In its enforcement, it is carried out without the parties present and not open to the public even though there are no exceptions in the law. Meanwhile, Petitioner II had suffered a constitutional loss due to confusion in explaining the examination process in the judicial review hearing at the Supreme Court in accordance with the 1945 Constitution interpreted as stated in the Constitutional Court Decision No.93/PUU-XV/2017. Therefore, the Petitioner requested that the provision of the a quo article not interpreted as the examination process is the hearing of the petition objecting to judicial rights be carried out in the presence of litigants in a hearing that is open to the public contrary to Article 1 paragraph (3), Article 24 paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution. 

On the petition No. 85/PUU-XVI/2018, the Court, through legal considerations read by Constitutional Justice Wahiduddin Adams, said that the constitutionality requested was directly related to the provision of Article 31A paragraph (4) of the Supreme Court Law on the petition of review of regulations under the law conducted by the Supreme Court no later than 14 working days since the date of receipt of the petition. 

"The Petitioners of the a quo case requested that the examination be carried out openly to the public; the Court is of the opinion that the a quo article is constitutional and is considered as part of general policy of the legislators," Justice Wahiduddin explained. 

The Court also believes that the essence of constitutionality issue petitioned by the Petitioners is the same as that in the case that has been decided by the Constitutional Court in Decision Number 30/PUU-XIII/2015. If the Petitioners expect the examination hearing of regulations under the law be open to the public and attended by the parties, the Supreme Court must be given sufficient time and adequate facilities and infrastructure. The Court has affirmed that it is the authority of the legislators and not a constitutionality issue of the norm. 

Must Be Parallel 

Constitutional Justice Saldi Isra expressed a dissent against the Court’s decision. He was of the opinion that on the a quo norm, the Court must refer to Decision No.  93/PUU-XV/2017 dated March 20, 2018. Although the Supreme Court doesn’t explicitly regulate the petition of the examination of regulations under the law against the 1945 Constitution, the frame of thinking of the Constitutional Court and the Supreme Court on the examination process in question must be parallel. This necessity, he added, is not only based on the legal considerations of the Constitutional Court Decision No.  93/PUU-XV/2017, but also on the mandate of Article 13 paragraph (1) of Law No. 48 of 2009 on Judicial Power. The article explicitly stipulates that all judicial examinations are open to public, unless the law stipulates otherwise. “In this case the Constitutional Court Law and the Supreme Court Law do not stipulate the examination process or, according to the Constitutional Court Decision No.  93/PUU-XV/2017 is original jurisdiction  to review norms,” Justice Saldi explained.

In relation to the norm of Article 31A paragraph (4) of the Supreme Court that has been declared constitutional by the Constitutional Court in Decision No. 30/PUU-XIII/2015, Justice Saldi stated that its legal considerations should be reviewed by observing the importance of open hearing for the public in the framework of the independent judiciary. By not straying from the legal considerations that has been decided, the reasonable time limit becomes the authority of the legislators.

“Therefore, the provision of Article 31A paragraph (4) is not pushed aside, but the time limit is extended by taking into account the simple, swift, and affordable judiciary as stipulated in Article 2 paragraph (4) of the Judicial Power. Based on all the legal considerations, the Court should have granted the Petitioners’ petition in part,” Justice Saldi stated. (Sri Pujianti/LA/Yuniar Widiastuti)