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Constitutional Justice Enny Nurbaningsih speaking at a technical assistance program on the Constitutional Court’s procedural law for judicial review for the Association of Lecturers on Procedural Law of the Constitutional Court (APHAMK) virtually, Wednesday (4/8/20021). Photo by Humas MK/Teguh.

Wednesday, August 4, 2021 | 17:42 WIB

JAKARTA, Public Relations—The technical assistance program (bimtek) on the Constitutional Court’s (MK) procedural law for judicial review for the Association of Lecturers on Procedural Law of the Constitutional Court (APHAMK) continued on the second day virtually on Wednesday, August 4, 2021. Several speakers delivered presentation, including Constitutional Justice Enny Nurbaningsih, who talked about “The Constitutional Court and the Characteristics of the Constitutional Court’s Procedural Law.”

She began her presentation by detailing the long history in fighting for an organ to perform judicial review of laws. “The history started with Moh. Yamin proposing that the Supreme Council, what we now know as the Supreme Court, be given the authority to review laws. The Indonesian Legal Scholars Association also proposed that the Supreme Court be given the authority to review laws,” she said.

Justice Enny said the Constitutional Court’s authority was granted by Article 24 of the 1945 Constitution, which stipulates that the judicial power not only be carried out by the Supreme Court, but also by the Constitutional Court. Meanwhile, the Constitutional Court’s authorities are regulated in Article 24C.

“The authority that the Court exercise the most is reviewing laws against the 1945 Constitution. The Constitutional Court from 2003 to 2021 has decided 1,412 judicial review cases of laws against the Constitution and only 27 cases of interagency disputes (SKLN). It has not decided on the dissolution of any political party. It has settled 878 legislative election dispute cases and 1,127 regional head election dispute cases,” she explained.

Justice Enny added that, pursuant to Article 24C of the 1945 Constitution, the Court is authorized to review laws formally and materially. Formal judicial review concerns the lawmaking process, while material judicial review concerns the content of laws that are deemed in conflict with the 1945 Constitution. The Court is also authorized 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. It is also obligated to decide on the House’s opinion on an alleged violation of law committed by the president and/or vice president based on the 1945 Constitution.

Constitutional Interpretation

Next, law lecturer of Udayana University Jimmy Z. Usfunan talked about “Constitutional Interpretation.” He said Article 24 paragraph (1) of the 1945 Constitution stipulates that the judicial power is independent in carrying out the judiciary to uphold the law and justice. The enforcement of law and justice is then elaborated in the Judicial Power Law, which mandates judges and constitutional justices to explore, follow, and study legal values and sense of justice in society. “This provision is intended so that the decisions of judges and constitutional justices be in accordance with the law and the community’s sense of justice,” he said.

Jimmy added that the legal politics in lawmaking must be in line with guaranteed constitutional rights, the scope of state powers, government, state organs, filling of official vacancies, and state administration as laid out in the Constitution.

He quoted Algra and Duyvendijk who state that there is not a single provision that can be readily practiced, because each must be interpreted before it can be put into practice by the drafters. Such a technique is called interpretation.

“Interpretation is a process carried out by a court in order to obtain certainty on the meaning of statutory laws. Meanwhile, according to Sudikno Mertokusumo and A. Pitlo, interpretation is a method of legal discovery to provide a clear explanation of the text of the law so that the scope of the provisions can be determined in relation to certain events,” he said.

Jimmy added that constitutional interpretation by justices is an elaboration whose objective must be the implementation of legal provisions on concrete cases that the people could accept. He said the Constitutional Court was the sole interpreter of the Constitution.

Judicial Review of Laws

In the next session, Constitutional Justice Suhartoyo talked about “The Procedural Law of Judicial Review of Laws Against the 1945 Constitution.” He said judicial review was the Court’s core business and the authority that it exercises most frequently. The Court settle cases of judicial review as well as general and regional election disputes the most, while only a few interagency dispute cases were lodged to the Court. It has never ruled on any case of political party dissolution and presidential impeachment until today.

“The Constitutional Court’s procedural law concerns four authorities, one obligation, and one additional authority—all with different juridical consequences. In judicial review of laws against the 1945 Constitution, the procedural law is different in that there are no opposing parties; there is a petitioner but there is no respondent. However, the Government and the [House of Representatives (DPR)] are to explain the history and original intent of the law. On the other hand, in interagency dispute cases there are petitioner and respondent, and so are in cases of political party dissolution and election dispute,” Justice Suhartoyo explained.

Material and Formal Judicial Review

Justice Suhartoyo explained that laws can be materially and formally reviewed in the Constitutional Court. Materially, it concerns the content, or substance, of laws that is deemed in violation of the 1945 Constitution. Meanwhile, formally, it concerns the procedure of lawmaking.

Individual citizens may petition laws. Empirically, the Court has never granted legal standing to foreign nationals to petition laws. “Except for foreign nationals that represent public or private legal entities that are located in Indonesia on the condition that the foreign nationals are part of the board of directors of the legal entities in question,” Justice Suhartoyo said. He added that indigenous peoples, public and private legal entities, and state agencies may also petition laws. The petition may be lodged in person or online to the Court.

The petitioner and/or respondent can be assisted by counsels, while public or private legal entities can be assisted by or represented by counsels. These counsels do not have to be advocates but must be familiar with the procedural law in the Constitutional Court. “The counsels must be able to assist the principal petitioner(s) and first submit a [request] letter to the Court,” Justice Suhartoyo said. He added that a judicial review petition includes the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum.

The proceedings start with a panel preliminary examination hearing, where the justices give the petitioner advise, followed by a petition revision hearing, then evidentiary hearings where witnesses, experts, etc. are summoned. The proceedings conclude with a ruling hearing.

The background of the petition is that the petitioner’s constitutional rights are violated due to the enactment of the law(s) petitioned. The constitutional loss must be specific, actual, or potential. In addition, there must be a causal relationship between the perceived loss and the enactment of the norm.

The virtual bimtek will be taking place for four days, Tuesday-Friday, August 3-6, 2021 with 120 participants.

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

Translation uploaded on 8/6/2021 10:44 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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