Petitioner Guntoro explaining the subject of petition in the preliminary judicial review hearing of Article 24 of Law No. 48 of 2009 on Judicial Power, Wednesday (27/3) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—Article 24 of Law No. 48 of 2009 on Judicial Power and Article 66 paragraphs (1) and (4), Article 75 letter a, and Article 79 of Law No. 30 of 2004 on the Office of Notary Public is challenged at the Constitutional Court (MK) on Wednesday afternoon (27/3/2019).

The petition No. 22/PUU-XVII/2019 was filed by Guntoro. He claimed constitutional impairment due to the enactment of Article 24 of the Judicial Power Law because the article is limited by a regulation under the law that is in effect starting from April 20, 2016. As a result of the restriction, the Petitioner could not submit a judicial review according to Article 24 of the Judicial Power Law, even though there has been a pretrial ruling that deviates fundamentally and violates the fair trial principle. According to the Petitioner, this has resulted in a constitutional loss that affects not only the Petitioner; all citizens are also disadvantaged in terms of the right to security, peace, and order, because the pretrial ruling granted the termination of the investigation of a criminal offense.

Article 24 of the Judicial Power Law reads, "(1) With respect to court decisions that have obtained permanent legal force, the parties concerned may submit a judicial review to the Supreme Court, if there are certain matters or conditions specified in the law. (2) A judicial review cannot be conducted on a judicial review."

“I also feel materially and immaterially disadvantaged for the misuse of a fake certificate of land purchase and deed No. 09/2016 made by the PPAT (official certifier of title deeds) notary Nurhayati not according to the legal procedure. I feel that my constitutional rights have been violated by the enactment of Article 66 paragraphs (1) and (4), Article 75 letter a, and Article 79 of Law No. 2 of 2014 as an amendment to Law No. 30 of 2004 because the Notary Honorary Council (MKN) did not want to issue a notary approval. This caused investigators not being able to work properly, while the West Java Jurisdiction Supervisory Council (MPW) did not make any decision despite having held an ethics hearing on June 5, 2018,” Guntoro said before the panel of justices led by Constitutional Justice Wahiduddin Adams.

Article 66 paragraphs (1) and (4) of the Law on the Office of Notary Public reads, “(1) In the interest of judicial process, the investigators, general prosecutors, or judges with the approval from the notary honorary council shall be authorized to: a. take copy of Minutes of Deed and/or documents attached to the Minutes of Deed or Notarial Protocols kept by the Notary Public; and b. summon the Notary Public to be present in the hearing relating to the deeds he/she draw up or Notarial Protocols kept by the Notary Public. (4) In case the notary honorary council not provide any response within the period referred to in paragraph (3), the notary honorary council is considered to have accepted the request for approval.”

The profession of official certifier of title deeds (PPAT) notary should not only be for the interest of legal certainty and protection for the PPAT notary profession as an official, because according to the Ethics of Rights and Ethics of Care in a great democracy such as Indonesia, the main concern is for the PPAT notary profession to be able to provide guarantee of legal certainty and protection, benefit, and justice to the people extensively. This is why optimization of the enforcement of law and ethics as part of the PPAT notary position in the state is important.

According to the Petitioner, the revised Article 66 paragraph (1) of Law No. 2 of 2014 is unconstitutional because it only changed the phrase “District/Municipal Supervisory Council” to “notary honorary council.” It further restricts investigators, general prosecutors, or judges in areas outside of the provinces capitals. MKNs are only located in provinces capitals, aside from the state capital. In fact, aside from not willing to issue notary approval, MKN delegates it to the Central Notary Supervisory Council (MPPN) when in fact the MPPN chairperson did not take a concrete move on West Java MPW that did not make a decision despite having held an ethics hearing on June 5, 2018. The West Java MPW secretary handed the matter over to the KPK due to the capture of the Head of Sukamiskin Penitentiary that led to the dismissal of West Java Chairperson cum Head of West Java Regional Office.

Justice Suhartoyo observed the ambiguity of the petition. “If you suffered material and formal losses, you should not challenge the law. This is formal and material review. Mr. Guntoro, if you feel that an article [of a law] has disadvantaged you, do not request that the law be declared unconstitutional. That would be a formal review,” the justice said.

Justice Enny Nurbaningsih commented on the format of the petition, which was unorganized and incoherent. “It is supposed to be understood not only by you, Mr. Guntoro, but also by other parties, including the justices. You should view examples of other cases, or existing decisions. [Please observe] the format of a judicial review petition,” she asserted. (Nano Tresna Arfana/LA/Yuniar Widiastuti)