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Constitutional Justice Suhartoyo speaking at a Special Education of Professional Advocate (PKPA), Thursday (12/11/2020) from the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—Constitutional Justice Suhartoyo spoke at a virtual Special Education of Professional Advocate (PKPA) on Thursday afternoon, November 12, 2020. The event was organized by the Law Faculty of Galuh University (Ciamis) in collaboration with the Association of Indonesian Advocates (Peradi).

The Constitutional Court (MK) was granted authorities by the Constitution, pursuant to Article 24C paragraphs (1) and (2) of the 1945 Constitution, Law No. 24 of 2003 on the Constitutional Court, and Law No. 48 of 2009 on Judicial Powers. “The Court also has an authority to rule on the disputes over the results of [the regional election], which was not given by the Constitution, but by Article 157 of Law No. 10 of 2016 on [Regional Elections]. The authority is temporary until a special judicial body is established,” he said in his presentation on “Litigating in the Constitutional Court.”

Justice Suhartoyo explained that the procedural law in the Constitutional Court is related to the four authorities of the Constitutional Court: examining laws against the Constitution, deciding on authority disputes among state institutions, deciding on the dissolution of political parties, and deciding on disputes over election results. It is also related to the Court’s obligation to decide on the House’s opinion on an alleged violation of law committed by the president and/or vice president.

In its journey, he added, the Constitutional Court declared Article 50 of Law No. 24 of 2003 to be unconstitutional in Decision No. 066/PUU-II/2004 on the judicial review of Law No. 1 of 1987 of the Indonesian Chamber of Commerce and Industry (Kadin). The article contains a provision stipulating that the Constitutional Court can only review laws that are promulgated after the Amendment to the 1945 Constitution.

Justice Suhartoyo also said that the Constitutional Court is also authorized to review government regulations in lieu of laws (perppu) as they were deemed to have led to new legal norms whose force equal that of statutory laws.

He also explained that laws can be reviewed both materially and formally. Material judicial review is related to the content of articles, paragraphs, or part of laws that are deemed in conflict with the 1945 Constitution. Meanwhile, formal judicial review is related to lawmaking process.

Justice Suhartoyo added that a request for judicial review is called “petition”, not “lawsuit”, because there are no defendants. The president/Government, the DPR (House of Representatives), and other state agencies are not defendants but those who offer testimonies. The Constitutional Court’s decisions are erga omnes, meaning they apply not only to the petitioners but to all citizens and the law in Indonesia.

He added that individual citizens, customary law communities, private and public legal entities, as well as state institutions can file a petition to the Constitutional Court. They can be assisted or represented by legal counsels, who do not have to be advocates but must be familiar with the procedural law in the Constitutional Court. He also explained the format of a judicial review petition: the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum.

Justice Suhartoyo also explained that a petition is filed because the petitioner has suffered 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 must be a causal relationship between the impairment and the law petitioned for review.

Writer: Nano Tresna Arfana
Editor: Lulu Anjarsari
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 11/17/2020 16:13 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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