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Constitutional Justice Suhartoyo speaking at a webinar organized by SIP Corp’s Legal Forum, Friday (7/8) from the Constitutional Court.

JAKARTA, Public Relations of the Constitutional Court—Constitutional Justice Suhartoyo spoke at a webinar organized by SIP Corp’s Legal Forum on Friday afternoon, August 7, 2020. He talked about “The Procedural Law of the Constitutional Court” from his office at the Constitutional Court (MK).

"Today I will explain the procedural law of the Constitutional Court, which is expected to be useful for fellow lawyers who later litigate at the Constitutional Court," he said at the event, which was attended by lawyers, academics, and the general public. He said it is a fundamental means to fight for the material law of all laws.

He added that it cannot be separated from the four authorities, one obligation, and one additional authority of the Constitutional Court. The Court’s main authority, he said, is the judicial review of laws against the 1945 Constitution. Its other authorities relate to the resolution of interagency authority disputes, the dissolution of political parties, and the resolution of general election result disputes.  Its obligation is deciding on the House’s opinion of alleged violation committed by the president and/or vice president.

“The Court’s additional authority is the resolution of regional election result disputes. It was granted not by the Constitution, but Law No. 10 of 2016 on the Pilkada (Regional Election). (It) is temporary until a special judicial body that resolve pilkada disputes is established,” he explained.

Justice Suhartoyo said that judicial review of laws against the 1945 Constitution is the Court’s core business and main authority. The cases most often lodged to the Court are judicial review cases of laws against the 1945 Constitution. Meanwhile, interagency authority dispute cases are low in number. Dispute cases over general and regional elections are quite high in number. Until today the Court has not adjudicated on political party dissolution and presidential impeachment cases.

He also said that the four authorities, one obligation, and one additional authority of the Constitutional Court has different juridical consequences. "In the judicial review of (laws against) the 1945 Constitution there is a different character of the procedure law: there is no opposing party. There are petitioners but there are no respondents. There are parties from the Government and the DPR (House) who are asked to give statements regarding the law. The Constitutional Court summons the Government and the DPR to explain the history, the original intent of the law. In contrast, in interagency authority dispute cases, there are petitioners and respondents. Likewise, in cases relating to political party dissolution and disputes over the election results, there are petitioners and respondents," he explained.

Material and Formal Review

Justice Suhartoyo explained the two types of judicial review in the Constitutional Court: material and formal. Material review relates to the content of the law deemed unconstitutional. It is also known as substance review. Formal review relates to the drafting procedure of the law.

He added that there are requirements to file a petition to the Court. First, being an Indonesian citizen. He said that the Court has never granted legal standing to foreign nationals. “Except for foreign nationals that represent a public or private legal entities that are located in Indonesia, on the condition that (they) are on the board of directors of the legal entities in question,” he explained. Petitioners may file the petition offline by coming directly to the Court or online. Other parties who can file a petition to the Court are customary law communities, private and public legal entities, as well as state institutions.

He then explained that petitioners and respondents may appoint a legal counsel while private and public legal entities may appoint an attorney. The legal counsel doesn’t have to be an advocate, as long as they are familiar with the procedural law in the Court.

“The Court allows for a legal counsel who assist the principal (petitioner) after sending a (letter of appointment) to the Court,” he said. He added that a petition covers the petitioner’s profile, the Constitutional Court’s authorities, the petitioner’s legal standing, posita, and petitum.

He also revealed that the proceedings in the Constitutional Court starts with a preliminary examination hearing where the justices give advice to the petitioner, followed by a petition revision hearing, and evidentiary hearings that present witnesses, experts, and other parties. The final hearing is a ruling hearing. The hearings in the Constitutional Court can be done through video conference or through apps such as Zoom and CloudX, which are often used amidst the COVID-19 pandemic.

He also explained that petitioners file a petition because their constitutional rights are violated by the enactment of certain laws. The loss they suffer may be specific, actual, or potential. There must be a correlation between their constitutional rights, which are guaranteed by the 1945 Constitution, and the enactment of those laws. 

Writer: Nano Tresna Arfana
Editor: Nur R.
Photographer: Ifa
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 8/10/2020 WIB 10:33 WIB

Disclaimer: The original version of the news is in Indonesian. In case where any differences occur between the English and the Indonesian version, the Indonesian version will prevail.

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