Tuesday, May 25, 2021 | 09:02 WIB
Deputy Chief Justice Aswanto speaking at an education program for prospective advocates by the Association of Lawyers and Legal Consultants and the Postgraduate Program of the Law Faculty of IAIN Syekh Nurjati Cirebon, Sunday afternoon (23/5/2021). Photo by Humas MK.
JAKARTA, Public Relations—Deputy Chief Justice Aswanto spoke at the virtual Education Program For Prospective Advocates Batch V organized by the central executive board (DPP) of the Association of Lawyers and Legal Consultants and the Postgraduate Program of the Law Faculty of IAIN (State Islamic Institute) Syekh Nurjati Cirebon on Sunday afternoon, May 23, 2021. He delivered a presentation on “The Procedural Law of the Constitutional Court.”
Justice Aswanto began his presentation by explaining the basis of the establishment of the Constitutional Court following Article 24 paragraph (2) of the 1945 Constitution, which states that the judicial powers are carried out by the Supreme Court and by its subordinate judicatory bodies dealing with general, religious, military, state administrative judicial fields, and by a Constitutional Court.
He then explained the Court’s four authorities and one obligation following Article 24 paragraphs (1) and (2) of the 1945 Constitution. The Court’s main authority is reviewing laws against the Constitution, formally and materially.
“The formal judicial review concerns the lawmaking process and matters outside of the material review. Material judicial review concerns the substance of laws that are deemed in conflict with the 1945 Constitution,” Justice Aswanto said. In addition, based on the Constitutional Court Decision No. 27/PUU-VII/2009, the formal judicial review is limited up to 45 days after the law is promulgated in the State Gazette.
He then explained that previously, following Article 50 of Law No. 24 of 2003, only laws promulgated after the amendment to the 1945 Constitution could be reviewed by the Court. However, the Court then declared the article unconstitutional in Decision No. 066/PUU-II/2004 on the judicial review of Law No. 1 of 1987 on the Indonesian Chamber of Commerce and Industry (Kadin). Therefore, the Court is authorized to review all laws that have been passed. In addition, based on the Decision No. 138/PUU-VII/2009, the Court declared it authorized to review regulations in lieu of law (perppu) with the consideration that they could lead to new norms whose force equals that of laws.
Stages of Judicial Review
Justice Aswanto then explained the stages of judicial review. First, a panel hearing of three justices hears the main points of a petition and gives recommendation to revise it. The petitioners are then given up to 14 workdays to revise it.
Second, in the examination hearings, the justices hear the revisions to the petition. Then the panel forwards the case to the justice deliberation meeting (RPH), where they recommend whether the case progress to the plenary hearing or not. Next, the petitioners, the president, the House (DPR), and the relevant party are given the chance to prove their arguments by presenting experts and witnesses. Then, the Court holds another RPH to discuss the decision.
Justice Aswanto then explained the Court’s authority to hear authority disputes between state institutions whose authorities are granted by the Constitution. “Not all state institutions are granted authorities by the Constitution. For example, the Police and the Corruption Eradication Commission (KPK) have authorities granted by the Constitution,” he said.
Justice Aswanto then discussed the Court’s authority to decide on the dissolution of political parties whose ideologies violate the state ideology. Only the government can file such a petition. The next authority is to decide on disputes over general election (presidential and legislative) results.
At first, regional head election (pilkada) dispute resolution was carried out by the Supreme Court, then was relegated the regency/city pilkada disputes to the high courts while it kept with the provincial disputes. However, along with the times, pilkada dispute resolution was transferred to the Constitutional Court, which then passed a ruling that it wasn’t authorized to do so. However, the Constitutional Court still handles it because of a clause in the decision, which states that the one authorized to do so is a special judicial body; but until this body hasn’t been formed, it is still within the Constitutional Court’s authority.
Aside from having four authorities, the Court also has an obligation to decide on the House’s opinion on an alleged violation of law or disgraceful act committed by the president and/or vice president. The House, represented by its speaker or attorneys, can file such a petition. The president and/or vice president can be represented and/or accompanied by attorneys. In such a case, the House must elaborate on the allegation that due to treason, corruption, bribery, other grave crimes, or disgraceful acts, the president and/or vice president no longer fulfill the requirements for their office.
Justice Aswanto also explained power of attorney in the Constitutional Court’s hearings. The petitioner or respondent may be accompanied or represented by legal counsels, while public and private legal entities may be accompanied by legal counsels or appoint them. The legal counsels do not have to be advocates; they may be public prosecutors and public defenders. In a 2009 election dispute case, a public prosecutor counseled for the KPU (General Elections Commission).
A petition consists of the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. Petitioners file for petitions when their constitutional rights are violated by the enactment of the law(s) petitioned. This constitutional loss must be specific, actual, or potential. In addition, there must be a causal relationship between the constitutional rights, which are guaranteed by the Constitution, and the enactment of the norm.
The Court also grant legal standing to NGOs that have concerns over certain issues related to the enactment of certain laws, so they can file a petition to the Court. Taxpayers also have legal standing to file a petition, judged from the correlation between their tax payment and the law(s) challenged.
Court Decisions
The Court adjudicate at the first and final levels, with a final decision, Justice Aswanto said. The Court’s decisions must be obeyed and implemented by all. A decision obtains permanent legal force since it is pronounced in a plenary hearing that is open to public
“The Constitutional Court decisions are erga omnes. Norms that have been annulled by the Court is no longer legally binding although the same norm in other law(s) is not or has not been challenged in the Court,” he said.
The Court can dismiss, reject, or grant a part of or an entire petition. In addition, laws can be ruled conditionally constitutional or conditionally unconstitutional.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 5/27/2021 17:10 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.
Tuesday, May 25, 2021 | 09:02 WIB 250