Constitutional Justice Enny Nurbaningsih delivering a public lecture for Ekasakti University, Padang, Friday (27/8/2021). Photo by Humas MK/Erwin.

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Friday, August 27, 2021 | 21:45 WIB

JAKARTA, Public Relations—Constitutional Justice Enny Nurbaningsih delivering a public lecture on “The Constitutional Court in Indonesia’s Constitutional System” on Friday, August 27, 2021 virtually. The program was organized by the Constitutional Court (MK) in collaboration with Ekasakti University, Padang. Ekasakti Rector Otong Rosadi was also in attendance.

During the lecture, Justice Enny said the Constitutional Court was the fruit of the Reform. “Without the Constitutional Court, we cannot make the Constitution the supreme law of the state, as no one can review [laws against the Constitution],” she said.

She said that Hans Kelsen, the father of the constitution, was the first person who positioned the Constitution within the state’s constitutional system. This was the emergence of the Constitutional Court that was not a unity with the Supreme Court. The Constitutional Court has transformed into a separate, centralized institution in our constitutional system.

“It is not like in the US where [the position] was given to the Supreme Court, which not only works alone but decentralized in the state supreme courts,” she explained.

Justice Enny added that in Indonesia, the birth of the constitutional review body started with Moh. Yamin, who suggested that the Supreme Court be given the authority to review laws.

“During discussions back then, there was a concern that no state body was given the authority to review [laws]. However, at the time, we were resistant to Western values, including trias politica, one that concerns freedom, which our founding fathers did not wish for. Therefore, a majority [of the founding fathers] did not agree with Moh. Yamin’s proposal,” she said.

The Indonesian Scholars Association (ISI) proposed that the Supreme Court be granted judicial review authority. Justice Enny said the Supreme Court was granted that authority only until regulations under the law.

She then explained the constitutional principles after the amendment to the 1945 Constitution. Article 1 paragraphs (2) and (3) of the 1945 Constitution stresses “The sovereignty shall be in the hand of the people and implemented according to the Constitution” and “The State of Indonesia shall be a constitutional state.”

Article 20 paragraph (2) reads, “Each bill shall be discussed by the House of People’s Representative and the President for joint approval.” The legislature also has their own interpretations of the Constitution as well as their own interests, which could violate constitutional rights. Meanwhile, Article 5 paragraph (2) reads, “The President shall stipulate a government regulation to properly implement the law.”

After the amendment to the 1945 Constitution, Justice Enny said, the judicial power is independent in holding the judicature for the enforcement of the law and justice. It shall be made by a Supreme Court and judicial bodies thereunder within a general judicature, religious court, military court, state administration court, and by a Constitutional Court.

Other bodies related to the judicial power are regulated by law. Article 24C paragraph (1) of the 1945 Constitution stipulates that the Constitutional Court shall have the authority to hear at the first and final instances where the judgment shall be final to review laws against the Constitution. The Constitutional Court “amends” legislation through a final decision (for which no other legal measure can be taken). It only defers to the Constitution as the form of the people’s sovereignty. As the interpreter and guardian of the Constitution, it reviews laws.

Justice Enny added that, based on Article 24C paragraph (1) of the 1945 Constitution, the Constitutional Court also has the authority to decide on authority disputes between state institutions whose authorities are granted by the 1945 Constitution, the dissolution of political parties, and disputes over general election results.

Meanwhile, Article 24C paragraph (2) stipulates that the Constitutional Court has an obligation to cide on the House of Representatives’ (DPR) opinion on an alleged violation of law committed by the president and/or vice president, pursuant to the Constitution. Meanwhile, Article 157 paragraph (3) of Law No. 10 of 2016 states that disputes over the final results of the regional elections are examined and tried by the Constitutional Court until the establishment of a special judicial body.

Writer        : Utami Argawati
Editor        : Nur R.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/2/2021 10:59 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.

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