Saturday, March 20, 2021 | 11:01 WIB
Deputy Chief Justice Aswanto speaking at a virtual Special Education of Professional Advocate (PKPA) by Batch XII, Saturday (20/3/2021). Photo by Humas MK/Bayu.
JAKARTA, Public Relations—Deputy Chief Justice Aswanto spoke at a Special Education for Professional Advocates (PKPA) Batch XII virtually on Saturday morning, March 20, 2021. The program was organized by the Faculty of Sharia and Law of UIN (State Islamic University) Alauddin, Makassar and the Association of Indonesian Advocates (Peradi).
“[I] will be sharing something that many people should know regarding litigating in the Constitutional Court and its authorities,” he said.
Justice Aswanto began his presentation by explaining the background to the establishment of the Constitutional Court of the Republic of Indonesia (MKRI) on August 13, 2003. The preamble to the 1945 Constitution states that Indonesia is a legal state (rechtsstaat), meaning that it is not based on power, but on law.
“The law in question is the law that was procedurally born out of a process that follow the lawmaking procedure. When a law has been processed formally, we must comply with it,” he said.
He further said that, in actuality, many countries including Indonesia wanted to not only be a legal state, but also a rule of law. In the context of rechtsstaat, citizens must comply with the norms within statutory laws.
"Do these norms follow the sense of justice that develops in society? This is the problem. In the rule of law, in case of norms that defy the sense of justice that exists in people's lives, there should be a mechanism to improve the norms in question. That is why the Constitutional Court was founded," he explained.
MKRI’s Authorities
Justice Aswanto then talked about judicial powers. Article 24 paragraph (2) of the 1945 Constitution, he said, stipulates that the judicial powers shall be carried out by a Supreme Court and its subordinate judicial bodies within general, religious, military, and state administrative judicial fields, and by a Constitutional Court.
He also explained the Court’s four authorities and one obligation, which are regulated by Article 24C paragraphs (1) and (2) of the 1945 Constitution. First, the Court is authorized to review laws against the Constitution. Laws can be reviewed materially and/or formally.
“Formal judicial review concerns with the lawmaking process and matters outside the material review, while material judicial review concerns with the content of laws that are deemed in conflict with the 1945 Constitution,” he explained.
There are several steps to the proceedings, which start with preliminary examination hearing, where a panel of three constitutional justices observe the main points of a petition. The justices then provide advice to improve the petition. The Petitioner is then given no more than 14 working days to revise their petition.
The second step is the petition revision hearing, where the justices hear the revisions to the petition. Then, the panel forward the case to the justice deliberation meeting (RPH), where the panel recommend whether the case advances to the plenary hearings or not.
In the plenary examination hearing, the justices hear the testimonies of the witnesses and experts for the petitioner, the president, the House (DPR), and the relevant party. This hearing is followed by another RPH and the ruling hearing.
Another authority of the Court is deciding on authority disputes between state institutions whose authorities are granted by the Constitution. The petitioner in such a case is a state institution whose authorities are granted and regulated by the Constitution. “For example, the police and the Corruption Eradication Commission (KPK), whose authorities are based on laws,” Justice Aswanto explained.
The third authority concerns the dissolution of political parties whose ideologies are against the state ideology. The petitioner in such a case is the Government. The fourth and last authority is deciding on disputes over presidential and legislative election results. Then, what about regional elections?
“The authority to handle regional election results was first granted to the Supreme Court. However, it then relegated the authority to the high courts to handle regency/city election, while it continued handling provincial election disputes,” Justice Aswanto revealed.
However, over time and after long discussions, the authority to settle regional election disputes was then relegated to the Constitutional Court. In one of its decisions, the Constitutional Court stressed that it holds the authority before a special judicial body is established to takeover.
Next, Justice Aswanto explained the Court’s obligation to decide on the House’s opinion of alleged violation or disgraceful act committed by the president and/or vice president. The Court has never received any petition for impeachment.
He then detailed the laws that can be petitioned in the Court. It was first stipulated that only laws passed after the Court’s establishment in 2003 can be petitioned. However, today any law regardless of time of promulgation can be petitioned. Justice Aswanto also revealed that government regulations in lieu of laws (perppu) can be petitioned after the Court passed the Decision No. 138/PUU-VII/2009.
Writer: Nano Tresna Arfana
Editor: Nur R.
Translator: Yuniar Widiastuti
Editor: NL
Translation uploaded on 3/20/2021 16:12 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.
Saturday, March 20, 2021 | 11:01 WIB 298