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Researcher Pan Mohamad Faiz welcoming law students of President University Cikarang, Friday (14/2) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—Law students of President University Cikarang asked various question during a visit to the Constitutional Court (MK) on Friday (14/2/2020). One of the questions was on the advocate organizations in Indonesia.

Researcher Pan Mohamad Faiz explained that several years ago, there were several advocate organizations in Indonesia. In addition to the Indonesian Advocates Association (Peradi), there was also the Congress of Indonesian Advocates (KAI). Peradi then split into three organizations. KAI also split into two. 

"Outside those advocate organizations, there are five more advocate organizations. The simple question is: in Indonesia does an advocate organization have to be one or many? If it is said to be one, the Court will say two years from now, you must resolve this problem. [The Court] gave freedom [to the organizations to choose]," said Faiz, who welcomed the students in the Delegation Room. 

In fact, Faiz said, there was a vacuum for two years, in which no advocate was appointed by the Supreme Court. Then the Supreme Court inaugurated all advocates, even though it had an impact, for example in terms of quality, due to the emergence of new advocate organizations in a number of regions of Indonesia. Finally, the Constitutional Court\'s Decision No. 35/PUU-XVII/2018 ruled Peradi as the sole advocate organization. 

In addition, there are questions related to disputes over regional election results (PHP Kada) in Indonesia. Faiz explained PHP Kada was initially handled by the Supreme Court, specifically high courts and district courts in various regions. "However, apparently there were many inconsistencies in legal considerations. For example, courts in Jakarta ruled differently from courts in West Java, in Kalimantan, and Sumatra," Faiz added. 

"Finally the House transferred the authority to the Constitutional Court in the Regional Head Law. This authority was given as long as there has not been a special court for regional head election disputes. So the Constitutional Court still handles disputes over the results of regional head election," Faiz added. 

Faiz explained the history of judicial review in 1803 in the United States Supreme Court through the Marbury v. Madison case. "The first time the United States Supreme Court overturned a law made by Congress. So if we read the Constitution of the United States today, it will not be said that the authority of the United States Supreme Court is to examine laws against the Constitution," said Faiz. 

Faiz added the first Constitutional Court in the world was established in Austria in 1920. However, there was a claim that the world\'s first Constitutional Court was established in the Czech Republic, 6 months earlier than the Austrian, but it had not handled any cases yet. "So Austria handled the legal review case first," Faiz said. 

The Constitutional Court of the Republic of Indonesia was established in 2003. Even though it was two centuries behind that of the Austrian Constitutional Court, it does not mean the Constitutional Court of the Republic of Indonesia is far behind. "In fact, we all must be proud, Indonesia is trusted to be a Permanent Secretariat of the AACC or the Asian constitutional court association. Indonesia is also the only Asian representative in the Venice Commission," said Faiz. 

After the Constitutional Court of the Republic of Indonesia was formed on August 13, 2003, it was given a number of authorities in the 1945 Constitution: judicial review of laws against the Constitution, deciding on authority disputes between state institutions, deciding on the dissolution of political parties, resolving disputes over election results, and deciding on the opinion of the House on the impeachment of the president and/or vice president who is suspected of violating the law. 

Indonesia and South Korea carry out judicial review following Hans Kelsen or the centralized model: through the Constitutional Court, unlike the American model or the decentralized system that does not have a constitutional court, but where the authority to examine the constitutionality of laws rests with the Supreme Court. 

"This model is applied, among others in the United States, Singapore, and Australia. In the United States, district courts and high courts may even examine the constitutionality of laws," Faiz said. (Nano Tresna Arfana/LA)

Translated by: Yuniar Widiastuti

Translation uploaded on 2/17/2020

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