Constitutional Justice Saldi Isra speaking at the opening of the Practicum for Law Students of Mahaputra Muhammad Yamin University (UMMY) of Solok virtually, Saturday (24/7/2021). Photo by Humas MK/Panji Erawan.
Saturday, July 24, 2021 | 17:52 WIB
JAKARTA, Public Relations—Constitutional Justice Saldi Isra spoke at the opening of the Practicum for Law Students of Mahaputra Muhammad Yamin University (UMMY) of Solok virtually on Saturday, July 24, 2021. He delivered a presentation on the Judicial Practices of the Constitutional Court.
He began his presentation by explaining the positions of the Constitutional Court (MK) and the Supreme Court (MA) in the Indonesian administration system, which people often confuse for each other. Although both are holders of the judicial power, they are different.
Justice Saldi said that the Supreme Court has existed since Independence Day. Until the Constitution was amended, the judiciary in Indonesia only has one chamber as does the US—there was no Constitutional Court, only the Supreme Court.
After the amendment to the 1945 Constitution, another holder or power emerged: the Constitutional Court. Article 24 of the 1945 Constitution expressly states that the judicial power is exercised by a Supreme Court and the courts under it, and by a Constitutional Court.
“With two chambers of judiciary as we have today, the Supreme Court is at the top because under it there are cassation courts, district courts, and other courts. [It] has the authority to review regulations under laws. The Constitutional Court [on the other hand], doesn’t have the structure that the Supreme Court has. The Constitutional Court is singular and located in the capital. The Constitution states that the Constitutional Court decisions are final, as they cannot be appealed,” Justice Saldi explained. He also said that the Supreme Court deals with any conventional cases that are personal in nature.
He added that, as per Article 24C of the 1945 Constitution, the Constitutional Court has the authority to review laws, both formally and materially, against the Constitution. Today, government regulations in lieu of laws (perppu) can also be petitioned in the Constitutional Court. The authority serves to guard democracy and the Constitution.
The dynamics of democracy is built because of the judicial review of laws because, Justice Saldi said, “Based on my research, the judicial review of laws led to caution in the legislature.”
The Constitutional Court also has the authority to decide on authority disputes between state institutions, the dissolution of political parties, and disputes over presidential and legislative election results. In addition, it is obligated to decide on the House’s (DPR) opinion on an alleged violation of law committed by the president and/or vice president. All are related to democracy and the Constitution, Justice Saldi stressed.
Aside from them, the Constitutional Court also has the authority to decide on disputes over regional head election results (pilkada). In 2021, it held pilkada hearings for 172 regencies/cities/provinces.
Constitutional Court Hearings
The petitioner in the Constitutional Court could be an Indonesian individual or a group of citizens, customary law communities, private and public legal entities, as well as state institutions. The petitioner and the respondent can be assisted or represented by legal counsels, while private and public legal entities can be assisted by or appoint attorney(s).
The legal counsels may not be advocates. This is to ease access to justices for those who cannot afford advocates. They may assist the petitioner after submitting a letter of appointment to the Constitutional Court. However, they must be familiar with the procedural law in the Constitutional Court.
A judicial review petition, Justice Saldi said, consists of the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. The petitioner may litigate offline or online.
The proceedings start with a panel preliminary examination hearing, presided over by three constitutional justices (one chair and two members). The justices provide advice to improve the petition. If the case continues, it will advance to plenary examination hearings, where the justices hear the testimonies of the witnesses and experts, followed by the ruling hearing.
Background of the Constitutional Court
What was the importance of the founding of the Constitutional Court. The transcript of the amendment to the 1945 Constitution on the judiciary shows that the cases that had piled up in the Supreme Court was a hot topic. Many were concerned about it. The constitutional amendment occurred amid that.
Justice Saldi explained that when the judiciary was about to be granted the authority to review laws against the Constitution, a question emerged: would the authority be granted to the Supreme Court? The constitution drafters then agreed to create another judicial chamber outside of the Supreme Court. Following a survey, it was chosen to found the Constitutional Court. The fact that France, South Korea, and Germany also have both the Supreme Court and the Constitutional Court contributed to the decision. Finally, the Constitutional Court of the Republic of Indonesia was founded on August 13, 2003.
Now, Justice Saldi said, the holders of the judicial power in Indonesia are the Supreme Court and the Constitutional Court. What about the Judicial Commission? It was also founded as a result the amendment to the Constitution. It serves to assist the supreme justices.
Justice Saldi also encouraged the law students to read the transcript of the amendment to the 1945 Constitution in 1999-2002 as well as the drafts of the 1945 Constitution by the founding fathers in the early days of the independence.
Recruitment of Constitutional and Supreme Justices
The constitutional justices, Justice Saldi said, are proposed by the House (DPR), the president, and the Supreme Court. Each proposes three names, making up the nine constitutional justices. Meanwhile, the supreme justices are selected by the Judicial Commission. The results of the selection are then submitted to the House’s Commission III to be subjected to a fit and proper test.
Justice Saldi also talked about his experience visiting the Law Faculty of the University of Perth, Australia in 2019. The faculty’s dean said that the students study at two campuses. Those in the second and third year of their studies study at a campus that is near the courts, the prosecution office, and lawyers associations to help them learn law enforcement.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 7/26/2021 16:41 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, July 24, 2021 | 17:52 WIB 262