Constitutional Justice Suhartoyo speaking at the Special Education of Professional Advocate of the Law Faculty of As-Syafiiyah Islamic University and the West Jakarta branch of Peradi, Saturday (9/14/2021) virtually from the Constitutional Court. Photo by Humas MK/Panji.

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Saturday, September 4, 2021 | 19:42 WIB

JAKARTA, Public Relations—Constitutional Justice Suhartoyo spoke at the Special Education of Professional Advocate (PKPA) of the Law Faculty of As-Syafiiyah Islamic University and the West Jakarta branch executive board (DPC) of the Association of Indonesian Advocates (Peradi). He gave a presentation on “Litigating in the Constitutional Court.”

He started his presentation by explaining that the Court’s procedural law depends on its authorities. “The Courts authorities are examining laws against the Constitution, deciding on authority disputes between state institutions, and deciding on the dissolution of political parties. Fourth, deciding on disputes over [general election] results. The Court [is obligated] to decide on the [House of Representatives’ (DPR)] opinion on an alleged violation of law committed by the president and/or vice president. The Court also has an additional authority to decide on disputes over the regional head election. [This] authority is not granted by the Constitution,” he said.

The Court’s authorities are mentioned in Article 24C paragraphs (1) and (2) of the 1945 Constitution, Law No. 24 of 2003 on the Constitutional Court, and Law No. 48 of 2009 on Judicial Power, excluding the Court’s additional authority to rule on regional head election dispute cases.

Different Procedural Law

Justice Suhartoyo explained the difference between the procedural law in judicial review and for other authorities.

“When the Court review laws against the Constitution, the procedural law has significant difference with that when it exercises other authorities,” he added. He explained that in judicial review cases, there is the petitioner but no respondent, which is different from other cases where there is the petitioner and the respondent in a dispute.

He explained the two models of judicial review cases, depending on the object. First, formal judicial review concerns the lawmaking process and matters excluded from the material judicial review. Second, material judicial review concerns the content of laws that are deemed in conflict with the 1945 Constitution.

Petitioners lodged a petition because they have suffered specific, actual, or potential loss due to the enactment of a certain law. In addition, there must be a causal relationship between the perceived loss and the enactment of the norm.

The Court also rules on authority disputes between state institutions whose authorities are granted by the Constitution, such as the Supreme Court (MA), the People’s Consultative Assembly (MPR), the House of Representatives (DPR), the Audit Board (BPK), and the Regional Representatives Council (DPD). It also decides on the dissolution of political parties, where the petitioner is the Government, represented by the Attorney General and/or minister that received a mandate from the president. The respondent is a political party, which may be represented by the party leadership or by an attorney.

The Court also decides on the results of the presidential election, with the presidential ticket as the petitioner and the General Elections Commission (KPU) as the respondent. There are the relevant party and Elections Supervisory Body (Bawaslu) in such a case. The object is the presidential election results as certified by the KPU.

The Court also decides on the House’s opinion on an alleged violation of law committed by the president and/or vice president. The House as the petitioner has the burden of poof to elaborate the alleged unlawful action by the president and/or vice president, where they no longer meet the requirements of president and/or vice president according to the 1945 Constitution.

Filing Petition

Justice Suhartoyo then explained that 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 legal counsels, who do not have to be advocates but must be familiar with the procedural law in the Constitutional Court and must first confirm their counsel in writing to the Court. This is in order to make justice accessible to those who cannot afford advocates.

He also explained the format of a judicial review petition: the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. The petition can be filed in person or online.

He also explained that the process started with a preliminary hearing that the petitioner and/or counsel attends, presided over by a panel of three constitutional justices, who must advise the petitioner. It is followed by a panel petition revision hearing. At the evidentiary hearings, experts, witnesses, the Government, the House, the MPR, or other institutions are summoned to testify.

The last stage is a ruling hearing. In a general/regional election hearing, the petitioner, respondent, Bawaslu, and relevant party testify before the justices. Meanwhile, in a judicial review hearing, there is no respondent.

Justice Suhartoyo added that the Constitutional Court’s decisions is erga omnes. Although the petition is filed by individuals, the decision bounds all citizens and influences the law in Indonesia.

Writer        : Nano Tresna Arfana
Editor        : Nur R.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/21/2021 16:26 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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