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Chief Justice Anwar Usman opening the technical assistance program on the procedural law for judicial review for the Association of Lecturers on Procedural Law of the Constitutional Court (APHAMK), Tuesday (3/8/2021). Photo by Humas MK/Teguh.

Tuesday, August 3, 2021 | 21:01 WIB

JAKARTA, Public Relations—The Constitutional Court through the Pancasila and Constitution Education Center organized a technical assistance program (bimtek) on the procedural law for judicial review for the Association of Lecturers on Procedural Law of the Constitutional Court (APHAMK). The program was officially opened by Chief Justice Anwar Usman virtually on Tuesday evening, August 3, 2021.

In his opening speech, Justice Anwar said the current democracy must be in line with nomocracy with the Constitution being the highest norm in the state. Although laws are formed by the legislature and the executive branch, majority tyranny over the minority and the distortion of the basic rights of citizens as guaranteed by the 1945 Constitution must be prevented.

“In order to maintain constitutionality, the judicial review in the Constitutional Court serves as a mechanism for citizens to protect themselves against violations of constitutional rights due to the enactment of any law,” he said before 120 participants.

The judicial review authority, he said, is often said to be the core business or the main authority of a constitutional court. This is because the constitutional court or the equivalent institution performs checks and balances over the authorities of the executive and legislative branches of government.

“The executive and legislative branches have the positive authority to form laws, while the constitutional court has the negative authority to repeal them,” he said before the lecturers as well as APHAMK Secretary-General Sunny Ummul Firdaus.

Balance Between State Organs

Justice Anwar further explained that the balance between state organs started with the idea for balance in democracy that prioritizes popular sovereignty. He added that this was based on the factual notion that power came in democracy was majority and tended to be abusive. Consequently, the lawmaking authority of the executive and legislative branches is regulated strictly, both formally and materially.

“The formal rule holds that a law must be formed following the procedure. Meanwhile, from the material aspect, the substance of a law must not be against the constitution as the higher rule. Therefore, the judicial review of laws against the Constitution in the Constitutional Court may concerns those two aspects, formally or materially,” he explained.

Developments in the Constitutional Court

Justice Anwar also said that when the Constitutional Court was founded, and then as referred to in Law No. 24 of 2003 on the Constitutional Court, there was an article that prohibited certain laws from being petitioned. Those laws are the ones promulgated before the amendment to the 1945 Constitution (1999-2002). “This norm came from the legal principles that the law should be prospective, not retroactive,” he added.

Justice Anwar said the norm was against the foundation of the Constitutional Court, which is to provides the citizens with protection over their constitutional rights from any law that is unconstitutional. Laws promulgated before the amendment to the 1945 Constitution, he said, could also have violated citizens’ constitutional rights. Had the norm remained to apply, it would also have become a formal requirement for the judicial review in the Constitutional Court. Therefore, it was repealed in 2004 by the Court through Decision No. 066/PUU-II/2004.

Justice Anwar also said that the petitioner’s legal standing is one of the key points in judicial review. Although Article 51 of the Constitutional Court Law regulates those who have legal standing in a judicial review case, the requirements have developed in the Court decisions. In 2004, the Court has extended those requirements as an interpretation of Article 51 of the Constitutional Court Law. The Court’s Decisions No. 003/PUU-I/2003, 006/PUU-III/2005, and 11/PUU-V/2007 have become a new reference for decisions thereafter.

The Constitutional Court Law also only regulated three types of ruling: inadmissible, rejected, and granted. However, now the Court may also rule laws to be conditionally constitutional and conditionally unconstitutional. In several decisions, the Court even rejected the petition but sent a message to the legislature to revise the laws in question. There have been developments in the Constitutional Court such as these, including the latest procedural law of judicial review as regulated in the Constitutional Court Regulation (PMK) No. 2 of 2021.

The bimtek will take place for four days, Tuesday-Friday, August 3-6, 2021. It will present constitutional justices, deputy registrars, researchers, and other staff members of the Constitutional Court.

Writer           : Utami Argawati
Editor          : Lulu Anjarsari P.
Translator     : Yuniar Widiastuti (NL)

Translation uploaded on 8/4/2021 16:27 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.

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