Monday, April 19, 2021 | 12:34 WIB
Constitutional Justice Daniel Yusmic P. Foekh speaking at a virtual Special Education of Professional Advocate (PKPA) organized by the Law Faculty of Unika Atma Jaya and the national executive board of Peradi, Saturday (17/4/2021) from Jakarta. Photo by Humas MK.
JAKARTA, Public Relations—Constitutional Justice Daniel Yusmic P. Foekh spoke about “The Procedural Law of the Constitutional Court” at a virtual Special Education for Professional Advocates (PKPA) organized by the Law Faculty of Atma Jaya Catholic University and the national executive board (DPN) of the Association of Indonesian Advocates (Peradi) on Saturday afternoon, April 17, 2021.
“Today’s presentation covers introduction; the procedural law of judicial review; the procedural law of disputes over state agency authority, general elections, and regional elections; and the procedural law of political party dissolution and decision on DPR’s opinion of violations committed by the president/vice president,” he explained.
Justice Foekh explained that after the amendment to the 1945 Constitution, the judicial powers in Indonesia is held by the Supreme Court (MA) and the Constitutional Court (MK). Article 24 paragraph (2) of the 1945 Constitution stipulates “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.”
“Article 2 of the Constitutional Court Law stipulates that the Constitutional Court is one of the state institutions that carry out independent judicial powers to uphold law and justice,” he said.
He then explained that the Court has the authority to review laws against the 1945 Constitution, to decide on authority disputes between state institutions, to decide on the dissolution of political parties, and to decide on disputes over general election results, as well as an obligation to decide on the DPR’s (House) opinion on an alleged violation of law committed by the president and/or vice president
Justice Foekh also revealed the statistics of cases the Court has handled in 2003-2020. He detailed that in 2020, the Court registered 109 judicial review cases as well as 136 cases of the 2020 election of governors, mayors, and regents (pilkada). He added that the Court has registered 29 judicial review cases of government regulations in lieu of laws (perppu).
He also explained that the Court can issue a verdict that a petition falls through, withdrawn, or cannot be adjudicated by the Court. The Court can dismiss, reject, or grant a petition. He added that the Court may also pass an interlocutory injunction.
“An interlocutory injunction is passed by the Court at the preliminary hearing regarding whether or not the Court will do or not do something that concerns the disputed object, whose result will be considered in the final decision,” said Justice Foekh. He revealed that the Court has rejected 1,404 petitions and granted 215 petitions in 2003-2020.
Justice Foekh explained that, aside from the four authorities and one obligation, the Court has an additional authority to rule on perppu and 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.
In addition, Article 157 paragraph (3) of Law No. 10 of 2016 reads, “Cases of dispute over the final vote acquisition results of the election of Governors, Regents, and Mayors are examined and tried by the Constitutional Court until the establishment of a special judicial body.”
General Aspects of Procedural Law
The general aspects of the Court’s procedural law include filing a petition, the body of evidence, hearings, and decisions. Justice Foekh explained that the petition is written in Indonesian and signed by the petitioner or the attorney, is made into 12 copies, and includes evidence. It is submitted to the Registrar’s Office or on the Court’s website. Filing a petition is free of charge.
The proceedings start with a panel preliminary examination hearing with a panel of three constitutional justices, followed by plenary examination hearings that are attended by nine or at least seven constitutional justices.
“The hearings are open to the public. The petitioner can request a remote hearing per Constitutional Court Regulation No. 18 of 2009. Amid the COVID-19 pandemic, many petitions were lodged online, including pilkada dispute petitions,” Justice Foekh explained.
He added that the most important evidence is in writing, followed by witness statement, statements by other parties, as well as other evidence and instructions that are produced, sent, received, and/or stored electronically using optical devices or similar means.
Justice Foekh explained that the Court adjudicates cases at the first and last level with decisions that are final. These decisions have permanent legal force since their pronouncement at a plenary hearing that is open to the public, pursuant to Article 47 of the Constitutional Court Law.
Procedural Law of Judicial Review
Justice Foekh then talked about the procedural law of judicial review (PUU). The object in such a case is laws and perppu. Laws can be reviewed materially and/or formally. Formal judicial review concerns lawmaking procedures, while material judicial review concerns the content of laws.
He added that individual citizens (and groups of individual citizens), customary law communities that live according to the principles of the Unitary State of the Republic of Indonesia (NKRI), private and public legal entities, as well as state institutions can file a petition to the Constitutional Court. They may do so when their constitutional rights and/or authorities granted by the 1945 Constitution are violated due to the enactment of the law(s) petitioned. This constitutional loss must be specific, actual, or potential, which according to logical reasoning is inevitable. In addition, there must be a causal relationship between the perceived loss and the enactment of the norm. If the petition is granted, the constitutional loss shouldn’t happen again.
Justice Foekh added that a request for judicial review is called “petition”, not “lawsuit” as it is in the civil justice system, because there is no contention of interests. The DPR (House of Representatives), the president/Government, and the DPD (Regional Representatives Council) are not the petitioner’s foils but those who offer testimonies. A judicial review 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.
The Constitutional Court decisions are erga omnes, meaning that although the petition is filed by individuals, the Court’s decision bounds all citizens and influences the legal politics in Indonesia. The Court may pass a verdict to declared a case inadmissible due to formal defects (niet ontvankelijke verklaard), rejected, or granted.
Laws can be ruled conditionally constitutional as in Decision No. 10/PUU-VI/2008 or conditionally unconstitutional as in Decision No. 4/PUU-VII/2009. The Court may delay the enactment of a decision as in Decision No. 016-PUU-IV/2006 or formulate a new norm as in Decision No. 102/PUU-VII/2009.
Writer: Nano Tresna Arfana
Editor: Nur R.
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 4/20/2021 17:23 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.
Monday, April 19, 2021 | 12:34 WIB 404