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Deputy Chief Justice Aswanto in a webinar hosted by the Law Faculty of Sawerigading University, Makassar, Saturday (22/8) in Jakarta. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) procedural law must be understood by prospective advocates, so that they understand the mechanism of court proceedings at the Constitutional Court, said Deputy Chief Justice Aswanto in a webinar on Saturday, August 22, 2020. The webinar on “The Constitutional Court’s Procedural Law” was part of the Special Education of Professional Advocate (PKPA) Batch II of 2020 hosted by the Law Faculty of Sawerigading University, Makassar.

Justice Aswanto delivered a presentation on “Litigating at the Constitutional Court.” He said that the legal principles of the Constitutional Court’s establishment and its authorities are stipulated in the 1945 Constitution. Its main authority is the judicial review of laws, which can be petitioned by every citizen, private legal entity, and customary law community. The provisions for this authority are regulated in the prevailing laws and regulations. He further stated that it is imperative that legal professionals understand the procedural law for judicial review at the Court.

He explained that, first, the Court holds a preliminary hearing where three constitutional justices will examine the points of a judicial review petition. The justice panel will then advise the petitioner on its revision and give them a maximum of 14 workdays on it. Second, the justice panel hear the revision at a hearing. Third, the petition is forwarded to the justice deliberation meeting (RPH), in which the justice panel decide whether the case continues to a plenary hearing or not. If it does, the Court summons the petitioner, the House, and the president/Government to give statements at the third hearing.

“We summons the president and the House to give statements. The president usually doesn’t come in person but appoints a minister relevant to the case,” he explained.

Then, said Justice Aswanto, the petitioner, the president, the House, and the relevant party are given the opportunity to present experts and witnesses to support their stance. Then, the Court holds another deliberation meeting to come at a decision. The nine constitutional justices, or at least seven, write and present legal opinions. When they come at a collective decision, a justice is delegated to draft the decision. Finally, they hold another meeting to finalize the decision.

Regional Head Election Cases

Deputy Chief Justice Aswanto also said that the Court is authorized to resolve regional head election disputes (PHP Kada). He stressed this before the prospective advocates in anticipation of the upcoming regional head election in December 2020 to elect heads of 171 regencies/cities.

He added that the stages of the court proceedings for these cases are no different from that of judicial review cases. However, the law set a deadline for submitting a PHP Kada petition at 3x24 hours after the General Elections Commission’s (KPU) announcement.

Calculator Judiciary

The Constitutional Court is often dubbed the calculator judiciary as it is restricted by the provision of Article 158 of Pilkada (regional head election) Law. Justice Aswanto didn’t deny this. He said any pilkada dispute can be petitioned if the margin between the losing and winning candidates doesn’t exceed 2%. In anticipation of the 2020 Pilkada, the Court has prepared the Constitutional Court Regulation (PMK) No. 2 of 2020, which complies with Article 158 of Pilkada Law with some adjustments.

“In other words, the Court prepared the PMK without putting aside Article 158 [of Pilkada Law] because this provision must apply, but [with some adjustments]. Previously, if [the margin] exceeds 2%, the case is over. With the new regulation, as the percentage is part of the dispute, [the case] must be examined. So, if the [margin] exceeds 2%, we’ll still examine [the case], whether the margin is [true] and we’ll still examine the subject of the case. If the margin is accurate, there is no legal standing. This way, no case will [be dismissed] in the beginning. This is the change in the upcoming 2020 Pilkada,” he explained.

Before concluding the presentation, he expressed his hopes for the prospective advocates to have a good understanding of the procedural law in the Constitutional Court so that they can have the best strategy in helping justice seekers find justice that they fight for in the Constitutional Court. 

Writer: Sri Pujianti
Editor: Nur R.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 9/3/2020 14:39 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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