Constitutional Justice Suhartoyo speaking at the virtual Special Professional Education for Advocates of Polda Metro Jaya, Tuesday (8/31/2021). Photo by Humas MK/Ifa.
Tuesday, August 31, 2021 | 20:52 WIB
JAKARTA, Public Relations—Constitutional Justice Suhartoyo spoke at the Special Professional Education for Advocates of the Greater Jakarta Metropolitan Regional Police (Polda Metro Jaya) of 2021, in which the Police collaborated with the Association of Indonesian Advocates (Peradi) on Tuesday afternoon, August 31, 2021. At the virtual event, he talked about “The Procedural Law of the Constitutional Court” from his office in the Constitutional Court (MK) building.
“Litigating in the Constitutional Court is similar to that in civil or criminal cases. In the Court, there is the formal law, the procedural law. The Court’s procedural law regulates the litigating procedure in the Court,” he said before 46 participants, who are police officers and university students.
He said that all laws petitioned in the Court can be the material law. “So the material law in the Constitutional Court can be limitless as all laws in Indonesia can be an object of judicial review of laws against the Constitution in the Constitutional Court. Every law can be the material law of the Court’s procedural law,” he stressed.
The Court’s main authority, Justice Suhartoyo said, is to review laws against the Constitution. It 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.
“It also has an additional authority to settle [regional head election/pilkada] disputes, which is not granted by the Constitution, but Law No. 10 of 2016 on Pilkada. This is temporary until a special body is established to settle those disputes,” he explained.
He also explained that the Court’s procedural law in relation to the four authorities, one obligation, and one additional authority, brought different juridical consequences.
“The Court’s procedural law is the basis to file petitions related to the four authorities, one obligation, and one additional authority [leading to] different procedural laws. Judicial review of laws against the Constitution has a procedural law whose characteristics differ from other authorities,” he stressed.
Procedural Law
Justice Suhartoyo said in the judicial review, there is a petitioner but no respondent. However, the Court’s procedural law on other authorities specifies petitioner and respondent.
“In the judicial review of laws against the 1945 Constitution, the procedural law is different in that there is a petitioner but no respondent. However, there is the Government and the DPR [House of Representatives] summoned to give statement on the law. The Court summons [them] to explain the original intent of the law. It is different from state institutional dispute cases, where there is a petitioner and a respondent—similar to the case on the dissolution of political parties,” he said.
Material and Formal Judicial Review
Justice Suhartoyo revealed that laws can be reviewed materially and/or formally. Material (or substance) judicial review concerns the content of laws deemed in conflict with the 1945 Constitution. Meanwhile, formal judicial review concerns the lawmaking process.
The petitioner could be Indonesian citizens. Justice Suhartoyo revealed that there had not been any precedent where the Court granted foreign nationals legal standing to file a petition.
“Except foreign nationals who represent public or private legal entities located in Indonesia, under the condition that they be one of the entity’s board of directors,” he said. He added that the petition could be filed in person or online. Customary law communities, private and public legal entities, as well as state institutions can also file a petition to the Court.
The petitioner and/or respondent may be assisted by legal counsels, while public or private legal entities may be assisted or represented by legal counsels. These counsels do not have to be advocates but must be familiar with the procedural law in the Constitutional Court. “Counsels may assist the principal petitioner after sending a request letter to the Court,” he said. He also explained the format of a petition: the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum.
He also explained that the process involves an examination hearing where the justices provide advice to improve the petition, followed by a petition revision hearing, and evidentiary hearings where the testimonies of the witnesses, experts, and relevant parties are heard. The process concludes with a ruling hearing. The hearings can be conducted through videoconferencing facilities or Zoom.
Petitioners file a petition because their constitutional rights are violated due to the enactment of the law(s) petitioned. This 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(s).
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/7/2021 12:43 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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