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Principal Petitioner Muhammad Hafidz in the ruling hearing of the judicial review of the Constitutional Court Law, Wednesday (30/1) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ganie.

The Constitutional Court could not accept the petition of the judicial review of provision on the ruling of the Constitutional Court in Law No. 24/2003 on the Constitutional Court (MK Law). The Court believed that Muhammad Hafidz, who had run as Regional Representatives Council (DPD) candidate in the 2014 elections, not have legal standing.

In his petition, Hafidz had previously argued about 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 had 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 seemed to have denied the decision of the Constitutional Court that had previously provided the requirements for resignation of DPD member candidates from the management of political parties. 

In the legal considerations read out by Constitutional Justice I Dewa Gede Palguna, the Court is of the opinion that there is no possibility for different interpretations, especially one causing legal uncertainty and injustice, of Article 57 paragraph (1) of the Constitutional Court Law as argued by the Petitioner. That is because, Justice Palguna added, the formulation of the norm was clear and firm that the content of a paragraph, article, and/or certain part of a law that had been declared contrary to the 1945 Constitution had lost its binding power as a legal norm.

"The loss of binding legal force of the content of any paragraph, article, and/or part of a law that is declared contrary to the 1945 Constitution is a logical consequence of the contradiction of the content of paragraph, article, and/or part of that law with the 1945 Constitution," said Justice Palguna reading out the legal considerations of Decision Number 98/PUU-XVI/2018. 

Defiance against Constitution 

Justice Palguna also mentioned the Court\'s opinion related to the criminal sanction imposed on a party (in this case the General Elections Commission/KPU) who wanted to carry out the Constitutional Court Decision Number 30/PUU-XVI/2018 because of several Supreme Court decisions that contradicted the Constitutional Court\'s decision to be implemented by the KPU. The Court considered the legal uncertainty that arose was not caused by the obscurity of the formulation of Article 57 paragraph (1) of the Constitutional Court Law, but merely a matter of implementation of the decision of the Constitutional Court. 

In addition, he explained that the Court must reaffirm that even though the Constitutional Court ruling is declarative, it does not indicate a weakness of the binding power of the Constitutional Court\'s decision. On the contrary, he stressed, precisely there lies the strength of the Constitutional Court\'s decision. He stressed that if the Court has declared a law or an article, paragraph, and/or part of the law contrary to the 1945 Constitution that it does not have binding legal force, actions that ignore the decision of the Constitutional Court are not only illegal, but also unconstitutional. 

"Actions that ignore the decision of the Constitutional Court, therefore keep using a law or article, paragraph, and/or part of a law that by the Court has been declared contrary to the 1945 Constitution and has no binding legal force as a legitimate law, it has consequences of not only [making the action illegal], but at the same time also contradicts the 1945 Constitution. Thus, in the event that an institution or community does not carry out the decision of the Constitutional Court, this is a concrete form of defiance against the Constitution," Justice Palguna said.

In Effect after Pronouncement 

In the decision, the Court also affirmed its position as a negative legislator. Justice Palguna explained that, in line with the principle of court supremacy in upholding the principle of constitutional supremacy, the Constitutional Court\'s decision has an equal position to the law. If a law made by a legislator (positive legislator) obtains binding legal force after promulgation, the decision of the Constitutional Court (negative legislator) obtains binding legal force or its permanent legal force since its pronouncement in a plenary session that is open to the public, as confirmed in Article 47 of the Constitutional Court Law.

"So, just like a law that immediately binds all citizens, including state institutions or the Government, a Constitutional Court decision immediately binds all citizens, including state institutions or the Government, once pronounced in a plenary hearing that is open to the public," Justice Palguna said. (Lulu Anjarsari/Yuniar Widiastuti)

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