Deputy Chief Justice Aswanto speaking at a Special Education of Professional Advocate (PKPA) organized by Sawerigading University of Makassar, Saturday (26/6/2021). Photo by Humas MK/Panji.
Sunday, June 27, 2021 | 05:18 WIB
JAKARTA, Public Relations—When a petitioner requests formal and material judicial review in one petition, the Constitutional Court (MK) will examine the petition at the same time and produce one decision on the case. For example, the petitioners of the Job Creation Law request that the law be annulled because its formulation is deemed defective, while also requesting that articles or paragraphs of the law be declared unconstitutional.
“There are several possibilities regarding the decision. If, for example, the formal judicial review [petition] is granted, [the constitutional justices] do not discuss the material judicial review in the decision. Because [part of the law has been revoked], it is irrelevant to examine it materially,” said Deputy Chief Justice Aswanto when speaking at a Special Education of Professional Advocate (PKPA) organized by Law Faculty of Sawerigading University of Makassar virtually on Saturday, June 26, 2021.
He further explained the two types of judicial review of laws against the 1945 Constitution. The first is the formal one, which concerns the lawmaking process.
“For example, the Court is currently handling the judicial review petitions of the Job Creation Law, of which there are many. Some petitioners only request material judicial review, meaning that they only challenge the substance. However, in other petitions, they challenge the law both materially and formally,” he revealed.
The second is one that concerns the article, paragraph, or any part of the laws. Based on the Court’s Decision No. 27/PUU-VII/2009, the formal judicial review takes place within 45 workdays after a law is promulgated in the state gazette.
Justice Aswanto said it used to be that only laws passed after the amendment to the 1945 Constitution can be challenged, pursuant to Article 50 of Law No. 24 of 2003. 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 Chamber of Commerce and Industry (Kadin). Therefore, now all laws can be challenged and the Constitutional Court can review all of them. In addition, based on Decision No. 138/PUU-VII/2009, the Court can review government regulations in lieu of laws (perppu) as they result in new norms whose force equal that of laws.
The Constitutional Court is also authorized to decide on authority disputes between state institutions whose authorities are granted by the 1945 Constitution and the dissolution of political parties. Parties can be dissolved if they are against the state ideology. The government acts as the petitioner in such a case.
The Court is also authorized to decide on disputes over both presidential and legislative election results. At first, pilkada (regional election) dispute resolution was carried out by the Supreme Court, then the regency/city pilkada disputes were relegated to the high courts while it kept with the provincial disputes. However, after long discussions, pilkada dispute resolution was transferred to the Constitutional Court, which then passed a ruling that it wasn’t authorized to do so. A clause in the decision stipulates that the one authorized to decide on pilkada disputes is a special judicial body, but until this body hasn’t been formed, the authority still lies with the Constitutional Court.
Aside from the four authorities, the Constitutional Court is obligated to decide on the House’s (DPR) opinion on an alleged violation of law committed by the president and/or vice president. The House, represented by its speaker, who can appoint an attorney, is the petitioner of such a case. the president and/or vice president allegedly committed the violation can also be accompanied and/or represented by attorneys.
The House has the burden of proof to elaborate on its allegation of treason, corruption, bribery, other severe crimes, or disgraceful act(s), which makes the president and/or vice president unqualified to hold their office.
Basis of the Establishment of the Constitutional Court
Justice Aswanto also explained the basis of the establishment of the Constitutional Court. Article 24 paragraph (2) of the 1945 Constitution stipulates that they are carried out by a Supreme Court and judicial bodies thereunder within the general, religious, military, state administrative judicial fields, and by a Constitutional Court.
He also said that the Constitutional Court Law doesn’t regulate the Court’s procedural law, so regulations (PMK) were passed to regulate them. These regulations explain the procedures for judicial review, the authority disputes between state institutions, the dissolution of political parties, disputes over the results of regional (governor, regent, mayor) elections, and disputes over the results of legislative elections.
He also explained that petitioners can be Indonesian individual or group of citizens, customary law communities, private and public legal entities, as well as state institutions. 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. In a 2009 election dispute case, prosecutors counseled the General Elections Commission (KPU).
He then explained that a judicial review petition consists of the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. 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.
The Court also granted legal standing to NGOs who are concerned with certain issues related to certain laws so that they can file a petition to the Court. Taxpayers can also file a petition. Their legal standing will be judged from the correlation between their tax payment and the norm that they petition for, following Decision No. 003/PUU-I/2003 on the judicial review of the Law on Government Debt Securities.
Erga Omnes
The Court adjudicates cases at the first and last instance with decisions that are final, Justice Aswanto said. Everyone must comply to those decisions, which have permanent legal force since their pronouncement at a plenary hearing that is open to the public. 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. Norms that have been revoked by the Court is no longer legally binding, although similar norms in other laws have not been petitioned to the Court.
The Court can issue a verdict that a petition is inadmissible (niet ontvankelijke). It can also grant or reject a petition in part or in its entirety. Laws can also be ruled conditionally constitutional or conditionally unconstitutional.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/28/2021 19:35 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.
Sunday, June 27, 2021 | 05:18 WIB 226