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Panel preliminary examination hearing of the judicial review of the Constitutional Court Law, Tuesday (10/11/2020) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held the preliminary examination hearing of the judicial review of Law No. 7 of 2020 Third Amendment to Law No. 24 of 2003 on the Constitutional Court on Tuesday November 10, 2020. The petition No. 90/PUU-XVIII/2020 was filed by Islamic University of Indonesia (UII) law faculty lecturer Allan Fatchan G.W. He argued that Article 15 paragraph (2) letter d, Article 22, Article 23 paragraph (1) letter d, Article 26 paragraph (1) letter b, and Article 87 of the Constitutional Court Law violates Article 1 paragraph (3), Article 24 paragraph (1), Article 28D paragraph (1), and Article 28D paragraph (3) of the 1945 Constitution.

Before Deputy Chief Justice Aswanto (panel chair), Constitutional Justice Arief Hidayat, and Constitutional Justice Enny Nurbaningsih, the Petitioner said as a taxpayer he is concerned with the development and performance of the Constitutional Court, as well as the fulfillment of constitutional rights and constitutionalism. He believes that the formal process of the newly revised Constitutional Court Law has violated and contradicts the provisions on the procedures for the formation of laws in the Law on the Formation of Laws and Regulations, which implements Article 22A of the 1945 Constitution.

“The formation of the Constitutional Court Law has violated the formal provision of lawmaking as it was formed without public participation, in closed doors, and hastily,” said the head of UII’s Center of Indonesian Legal and Policies Studies (PSHK).

Another attorney Muhammad Azhar said the Petitioner requested the material judicial review of Article 15 paragraph (2) letter d, which reads, “is 55 (fifty-five) years old at the minimum.” The provision raised the age limit for constitutional justices from 47 to 55 years. The Petitioner believes the limit was not urgent and it wasn’t mentioned in the academic text for the Constitutional Court bill. Not to mention, Azhar said, it is against the Constitutional Court Decision No. 7/PUU-XI/2013.

"The legislature has violated the rights of citizens to recognition, guarantee, protection, and fair legal certainty and equal treatment before the law for the provision of this norm," he added.

He also said the article contradicts Article 28D paragraph (3) of the 1945 Constitution because the 1945 Constitution stipulates that constitutional justices shall have integrity and personality beyond reproach, are just, and are statesman who understand the Constitution and the state administration, and are not concurrently holding state offices. Thus, although a constitutional justice candidate has not met the provisions of the a quo article, as long as they fulfill the requirements contained in Article 24C paragraph (5) of the 1945 Constitution, they must be viewed as having constitutional rights to be appointed a constitutional justice.

However, he said the a quo law has kept anyone under 55 years of age from being eligible to be appointed a constitutional justice, even if they fulfill the requirements according to the 1945 Constitution. Therefore, the Petitioner requested that the Constitutional Court declare the formation of Law No. 7 of 2020 Third Amendment to Law No. 24 of 2003 on the Constitutional Court not meeting the provisions in the 1945 Constitution.

Justices’ Advice

Constitutional Justice Enny Nurbaningsih advised the Petitioner to elaborate on his legal standing and his specific, actual, or potential loss of constitutional rights. She also said that he must prove the problems in the formulation of the law. She also urged him to prove that there had been a procedural issue in terms of the hastiness of the law’s formation, which makes it formally defective. She asked the Petitioner to elaborate on the constitutionality issue of the norm.

Meanwhile, Constitutional Justice Arief Hidayat added that it was important to show the contradiction between the articles in the Constitutional Court and the 1945 Constitution, which he hadn’t seen in the petition. He also urged the Petitioner to study the Constitutional Court Decision No. 27/PUU-VII/2009 regarding the legal standing in filing a formal and material judicial review petition. He added that there are different requirements for both types of judicial review petition and urged the Petitioner to study them.

Deputy Chief Justice Aswanto advised the Petitioner to review the numerous articles that he petitioned as it could lead to ambiguity and misperception of the articles that the Petitioner intended to review. “Which articles do you want to review? Are you asking for a return to the meaning of the articles of the old law? Or something else? Do affirm that what you question is Article 1 point 6, and so on,” he said.

Before concluding the session, Justice Aswanto asked the Petitioner to submit the petition revision by Monday, November 23, 2020 at 13:30 to the Registrar’s Office.

Writer: Sri Pujianti
Editor: Lulu Anjarsari
PR: Raisa Ayuditha
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 11/14/2020 09:53 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.

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