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Constitutional Justice Suhartoyo speaking at a virtual Special Education of Professional Advocate (PKPA) on Saturday afternoon (6/2/2021). Photo by Humas MK/Agung.

JAKARTA, Public Relations of the Constitutional Court—Constitutional Justice Suhartoyo spoke at a Special Education of Professional Advocate (PKPA) virtually about “Procedural Law in the Constitutional Court” on Saturday afternoon, February 6, 2021. The event was organized by the Law Faculty of As-Syafi’iyah University in collaboration with the West Jakarta branch executive board (DPC) of the Association of Indonesian Advocates (Peradi).

Justice Suhartoyo started by detailing the four authorities and one obligation of the Constitutional Court (MK) according 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. He explained that the Court’s main authority is reviewing laws against the 1945 Constitution. In the judicial review of laws, if necessary, the president and the House of Representatives (DPR) are summoned to testify about the case. However, they are not the defendants or respondents who must refute the Petitioner’s suit. Instead, they are to provide statements.

In a judicial review case, there are no plaintiffs and defendants, unlike in general courts, because the norms of laws are being examined. “[It is] unlike other authorities of the Constitutional Court—to decide on authority disputes between state institutions, the dissolution of political parties, disputes over general election results—which are concrete cases, where there are petitioners and respondents, plaintiffs and defendants, where the cases are court lawsuits,” he said.

Formal and Material Reviews 

Justice Suhartoyo said that there are two types of judicial review depending on the objects. First, the formal review, which deals with the drafting of laws and matters outside of the material review. Second, the material review, which deals with the substance of the law that is deemed unconstitutional. “[Someone can request] a formal review only, a material review only, or both,” he said.

He then added that aside from reviewing laws against the Constitution, the Constitutional Court is also authorized to decide on authority disputes between state institutions, disputes over general election results, and the dissolution of political parties. The Court is also obligated to decide on the House’s opinion of alleged violation committed by the president and/or vice president. Each of these authorities have different procedural law. In addition to those authorities, the Court is also tasked with deciding on disputes over the results of regional head elections (pilkada), mandated not by the Constitution but by Article 157 of Law No. 10 of 2016 on Pilkada. This authority is temporary until a special judicial body is established.

Justice Suhartoyo then detailed the parties who can file a petition to the Court: Indonesian citizens, customary law communities, private and public legal entities, as well as state institutions. He also explained that the petitioner, the respondent, as well as private and public legal entities can be accompanied or represented by legal counsels. These legal counsels do not have to be advocates as long as they are familiar with the procedural in the Court, act for the petitioner’s interest, and submit a letter to the Court. This is to provide the people with access to justice despite not being able to afford advocates.

Background of Judicial Review 

The judicial review petition, Justice Suhartoyo revealed, consists of the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. The petition can be filed either online or offline.

He also explained the background that compels a petitioner to request a judicial review of the law: the enactment of the law(s) has harmed the petitioner and this constitutional loss must be specific, actual, or potential. There must be a causal relationship between the perceived loss of constitutional rights, which are guaranteed by the Constitution, and the enactment of the law(s).

He also talked about the stages of hearings: a preliminary examination hearing presided over by a panel of three constitutional justices, a petition revision hearing with the same panel, examination hearings—where experts, witnesses, the Government, the House (DPR), the MPR (People’s Consultative Assembly), or other institutions give testimonies—and the ruling hearing. The judicial review of a law doesn’t present a respondent because the object is a law, unlike a general/regional election results dispute—which presents the petitioner, the respondent, Bawaslu (Elections Supervisory Body), and the relevant party.

Justice Suhartoyo also stated that 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. 

Writer: Nano Tresna Arfana
Editor: Lulu Anjarsari

Translator: Yuniar Widiastuti
Editor: NL

Translation uploaded on 02/08/2021 16:49 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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