Constitutional Justice Saldi Isra speaking at the Technical Assistance Program on Legal Drafting Batch I, for lecturers of constitutional law and state administrative law, Tuesday (27/7/2021). Photo by Humas MK/ Teguh.
Tuesday, July 27, 2021 | 21:40 WIB
JAKARTA, Public Relations—The virtual technical assistance program (bimtek) on Legal Drafting Batch I for lecturers of constitutional law and state administrative law, organized by the Constitutional Court (MK), continued on the second day, Tuesday, July 27, 2021. This time, Constitutional Justice Saldi Isra delivered a presentation on “Judicial Review of Laws,” while the Secretary of the Directorate General of Legislation of the Law and Human Rights Ministry Priyanto covered “The Legal Politics of Legislation and the Interpretation of the Constitution,” and former Constitutional Justice I Dewa Gede Palguna talked about “Constitutional Interpretation.”
Also read: Court, Law and Human Rights Ministry, APHTN-HAN Hold Legal Drafting Program
Justice Saldi began his presentation by talking about Justice John Marshall, who was influential in the US’ Marbury v. Madison case (1803). When he was chief supreme justice, the Supreme Court handed down over 1,100 rulings and no supreme justice had any dissenting opinion. His leadership is seen as a period where the divided US was united.
He then talked about the early practice of judicial review in the US and how supreme justices interpreted the Constitution. “The US Constitution, at least until Marbury v. Madison, didn’t mention the Supreme Court’s authority to review laws against the Constitution,” he said.
This was unlike Indonesia, where the authority came about not because of general interpretation, but because of an article in the 1945 Constitution that orders the Constitutional Court to review laws against the Constitution.
“I hope researchers start studying the implementation on judicial review decisions, of the authority to review laws against the Constitution, which came about from the justices’ interpretation and from a constitutional mandate,” he said.
Justice Saldi further explained the five authorities of the Constitutional Court of the Republic of Indonesia, which was founded on August 13, 2003: to review laws against the 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 the obligation to decide on the House’s opinion on an alleged violation of law committed by the president and/or vice president.
Constitutional Court’s Crown
Justice Saldi then focused on the judicial review authority. “This authority to review law against the Constitution is very interesting because it is the crown of the Constitutional Court,” he said. He added that, pursuant to Article 24C of the 1945 Constitution, the Court is authorized to review laws against the Constitution formally and materially. Formal judicial review concerns the lawmaking process. Meanwhile, Material judicial review concerns the content or part of laws that are deemed in conflict with the 1945 Constitution.
The petitioner could be Indonesian individual or group of citizens, customary law communities, private and public legal entities, as well as state institutions. The petitioner and/or respondent can be assisted or represented by a legal counsel, while private and public legal entities can be assisted by or appoint a legal counsel. This legal counsel may be people who are not advocates but understand the Court’s procedural law, as long as they are able to assist the petitioner after previously submitting a request letter to the Court, allowing access to justice for those who cannot afford advocates.
A judicial review petition, Justice Saldi explained, contains the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. The petition can be submitted both in person and online.
The proceedings start with a panel preliminary examination hearing, presided over by three justices (one chair and two members), who provide advice to improve the petition. It is followed by a petition revision hearing. If the case continues, it will advance to the plenary examination hearings, where the justices hear the testimonies of the witnesses, relevant parties, and experts. Then the case concludes with a ruling hearing.
Legal Politics
Next, the Secretary of the Directorate General of Legislation of the Law and Human Rights Ministry Priyanto talked about “The Legal Politics in Lawmaking in Indonesia.” He explained that legal politics is the state policy in relation to ius constitutum or the existing positive law as well as ius constituendum or the law that is expected for the future. “Therefore, legal politics actually concerns lawmaking, the implementation of the law, and the enforcement of the law,” he said.
He added that substantive issues in lawmaking include overregulation and deregulation; hierarchy of laws and regulations; types of laws and regulations; the position of circular letters, internal regulations, and joint decrees (SKB); types of regulations that can be passed into law and those that cannot; and Pancasila as the source of all sources of law.
Priyanto encouraged the participants to implement Pancasila as the source of all sources of state law. Pancasila as a philosophical, sociological, and juridical basis that can be included in academic texts or academic studies as well as sections, articles, or paragraphs of regulations. The formation and content of regulations must not conflict with the basic values of Pancasila, both formally and substantially. In addition, regulations must be in harmony with the basic values of Pancasila and the principles of statutory law.
He also talked about the three bases of lawmaking. First, the philosophical basis: that regulations take into account the views of life, awareness, and legal ideals, which include the spiritual atmosphere and the philosophy of the nation, originating from Pancasila and the Preamble to the 1945 Constitution. Second, the sociological basis: that regulations are formed to meet the needs of the community in various aspects. Third, the juridical basis: that regulations are formed to overcome legal problems or fill legal voids by considering existing rules, and will be changed or repealed in order to ensure legal certainty and a sense of justice for the community.
Priyanto explained that statutory regulations are written regulations that contain legally norms that are generally binding, that are formed or determined by state institutions or authorized officials through procedures stipulated in laws and regulations. According to Law No. 12 of 2011 on Lawmaking, the lawmaking process in are planning, drafting, discussion, ratification, stipulation, and promulgation.
Constitutional Interpretation
I Dewa Gede Palguna, who was a former constitutional justice for two terms, talked about the constitutional interpretation. He explained that its most general definition is activities that include understanding the methods or strategies for people who are trying to resolve disputes regarding the meaning or application of the Constitution. “From that [general definition], we find that constitutional interpretation is one of the ways to elaborate the meanings in the Constitution,” he said.
Therefore, he added, constitutional interpretation is not merely matching certain events or things or circumstances with articles or provisions in the Constitution, but more than that. It means seeking to elaborate on the meanings contained in the Constitution. Thus, it is a mechanism to find out or ascertain whether the Constitution has actually been implemented in practice in accordance with the meanings therein and the objectives to be realized by the Constitution.
He then said that K.C. Wheare, an expert on constitution, defined a constitution as resultante (agreement product) of various political, economic, and social forces at the time it is adopted. Therefore, the constitution is relatively static and not easily changeable. However, it is always in need of improvement.
Palguna added that in countries that adopts the concept of constitutional supremacy, the authority to interpret the constitution is granted to the judiciary, whether it is a special court such as the constitutional court or a general one with the authority that resembles that of the constitutional court. In other words, judicial supremacy applies in constitutional interpretation, meaning that constitutional interpretation is binding legal force and final, and is carried out only by a court.
The technical assistance program (bimtek) on Legal Drafting Batch I is organized by the Constitutional Court (MK), in collaboration with the Law and Human Rights Ministry and the Association of Constitutional and Administrative Law Lectures of Indonesia (APHTN-HAN). It will take place for five days, from Monday to Friday, July 26- 30, 2021. The participants are lecturers across the country that affiliated with APHTN-HAN, either as managers or members.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 7/28/2021 09:36 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, July 27, 2021 | 21:40 WIB 384