---

Constitutional Justice Daniel Yusmic P. Foekh speaking at an online Special Education of Professional Advocate (PKPA) organized by DPC Peradi Ambon on Friday (2/10) from the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—Constitutional Justice Daniel Yusmic P. Foekh talked about “The Constitutional Court’s Procedural Law” virtually at an online Special Education of Professional Advocate (PKPA) program on Friday, October 2, 2020. The program was organized by the branch executive board (DPC) of Peradi Ambon in collaboration with the Law Faculty of Pattimura University.

Justice Foekh started by explaining the judicial powers in Indonesia. “Article 24 paragraph (2) of the 1945 Constitution reads, ‘The judicial powers shall be carried out by a Supreme Court and by its subordinate judicatory bodies dealing with general, religious, military, state administrative judicial fields, and by a Constitutional Court,’” he said. Meanwhile, the Constitutional Court is stipulated in Article 2 of the Constitutional Court Law, “The Constitutional Court is one of the state institutions, which independently carries out judicial powers in order to administer justice and thereby uphold the law and serve justice.”

Article 24C paragraph (1) of the 1945 Constitution reads, “The Constitutional Court shall have the authority to make final decisions in cases of first and last instance handling the review of laws against the Constitution, to decide on authority arguments among state institutions whose competence is enshrined in the Constitution, to decide on the dissolution of political parties, and to decide on disputes regarding general election results.” Meanwhile, paragraph (2) reads, “The Constitutional Court has the duty to rule on an opinion of the DPR regarding alleged violations of the Constitution by the President or the Vice President.”

Justice Foekh said that the Constitutional Court had been given an additional authority to review government regulations in lieu of laws, or perppu,according to the Constitutional Court Decision No. 138/PUU-VII/2009.

"In the legal consideration of the decision, [the Court] stated that because perppu can give rise to legal norms whose binding power is the same as laws, the norms in the perppu can be materially reviewed against the 1945 Constitution by the Constitutional Court. From 2009 to 2020 there have been 24 judicial review cases of perppu in the Constitutional Court,” he said.

The also said that as the guardian and final interpreter of the Constitution, the guardian of democracy, the protector of human rights, the protector of the citizens’ constitutional rights, and the protector of the state ideology, the Constitutional Court has another additional authority to rule on regional head election disputes until a special body is established to take over. In the legal consideration of the Decision No. 97/PUU-XI/2013, the Court states that in order to avoid doubt, legal uncertainty, and vacuum of institution authorized to settle disputes over regional head election as there has been no law regulating this matter, the settlement of such disputes remains the authority of the Constitutional Court.

Justice Foekh also revealed the statistics of the Court decisions. Judicial review of laws has the highest number of cases at 1,321 (43.96%), followed by local election (pilkada) dispute cases at 932 (32.68%), legislative election dispute at 671 (22.33%), interagency dispute at 26 cases (0.87%), and presidential election at 5 cases (0.17%). As many as 1,305 cases (45.81%) were rejected, 1,005 cases were struck out (35.28%), 397 cases (13.93%) were granted, 171 cases (5.75%) were withdrawn, 60 cases (2.11%) fell through, 25 cases (0.84%) received interlocutory injunction, and the Court stated it didn’t have the authority to hear 11 cases (0.32%).

He explained how to litigate in the Constitutional Court. First, the petition in Indonesian is signed by the petitioner or the attorney, is made into 12 copies, details the Court’s authorities, and includes evidence. The softcopy of the petition and the list of evidence in Word documents are submitted to the Registrar’s office or on the Court’s website. Litigating in the Constitutional Court is free of charge. “When the Court was first established, people used to come and lodge a petition orally, but today it’s all in writing,” he said.

The Constitutional Court uses the term “petition”, not “lawsuit” as in civil cases, because it’s related to public interest and not to contented dispute of interest. A petition is filed because the petitioner suffers constitutional impairment due to the enactment of certain laws. The impairment must be specific and actual, or at least potential according to common sense. There is a causal relationship between the impairment and the law petitioned for review. If the petition is granted, the constitutional impairment will potentially not occur again.

The petitioner could be Indonesian individual or group of citizens, customary law communities, private and public legal entities, as well as state institutions. “The House and the president are not the petitioner’s opponent in the judicial review, but are testifiers,” he added.

The petition consists of the petitioner’s profile, the Court’s authorities, the petitioner’s legal standing, the reasons behind the petition (posita), and the petitum. A general or local election petition also mentions the deadline for the petition.

Justice Foekh stressed the importance of evidence. According to Article 36 paragraph (1) of the Constitutional Court Law, evidence is a letter or text, witness testimony, expert testimony, testimony of litigating parties, instruction, and other piece of evidence that is spoken, transmitted, received, or stored electronically with an optical device or the like. Article 45 paragraph (1) of the Constitutional Court Law states that the Constitutional Court decides matters based on the 1945 Constitution in accordance with the evidence and confidence of the justices.

He also explained that the process involves panel examination hearings and plenary examination hearings. A panel hearing involves three justices, while the plenary is attended by at least seven justices. The Constitutional Court hearings are open for public, except the justice deliberation meeting (RPH). The litigating parties can apply for a remote hearing according to the Constitutional Court Regulation No. 18 of 2009.

The proceedings start with a panel preliminary examination hearing, which aims to check the completeness and clarity of the material. The justices provide advice to improve the petition and examine and confirm the evidence. In the plenary examination hearings, the justices hear the testimonies of the witnesses, relevant parties, and experts. They’re followed by the RPH and the final verdict hearing.

The Court adjudicate at the first and final levels, with a final decision. A decision obtains permanent legal force since it is pronounced in a plenary hearing that is open to public, according to Article 47 of the Constitutional Court Law. “The Constitutional Court decisions are erga omnes. Although [the petition is] filed by individuals, the Court decision bounds all citizens and influences the legal politics in Indonesia,” he stressed.

The Court can dismiss, reject, or grant a part of or an entire petition. Laws can be ruled conditionally constitutional or conditionally unconstitutional. The Court can also delay the force of a law and formulate new norms.

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

Translation uploaded on 10/13/2020 12:16 WIB

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

---