Secretary-General M. Guntur Hamzah delivering a keynote speech and opening the Constitutional Law Festival 2021 virtually, Saturday (9/4/2021). Photo by Humas MK/Bayu.

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Sunday, September 5, 2021 | 18:10 WIB

JAKARTA, Public Relations—Secretary-General of the Constitutional Court (MK) M. Guntur Hamzah delivered a keynote speech and opened the Constitutional Law Festival 2021 on Sunday morning, September 5, 2021. The Constitutional Court organized the event with the Law Faculty of Brawijaya University.

Guntur began his remarks by expressing his appreciation for the event. “On behalf of the Constitutional Court, I am happy for and appreciate the Constitutional Law Festival 2021,” he said virtually before the Law Faculty Dean of Brawijaya University Muchammad Ali Safa’at.

He said the event was in line with the Court’s mission to improve the citizens’ constitutional awareness and a reflection of the community and the academics’ intention, especially at Brawijaya University, to maintain the academic culture, to cultivate positive competition, and to promote the mindset and actions that are based on the awareness and understanding of constitutional values among the students.

In his keynote speech, Guntur explained that in accordance with Article 24 paragraph (1) of the 1945 Constitution, the Constitutional Court enforced law and justice as well the upheld constitutional values.

Constitution as Supreme Law

Guntur further said that the Constitution is the supreme law of the land whose objectives reflect the state goals—to achieve and realize justice, order, and ideals such as independence or freedom and shared welfare, as contained in the Preamble to the 1945 Constitution.

Therefore, he added, the Constitutional Court utilized all available efforts and resources to achieve and realize constitutional justice—justice that is in line with constitutional values and principles and the 1945 Constitution which is explored and realized through transparent and fair judicial processes.

“In order to realize constitutional justice, the judicial review authority to determine the substance of laws was granted to the Constitutional Court. In other words, as the final interpreter of the Constitution, the Constitutional Court is the body that has the authority and independence to determine what the 1945 Constitution intends at present and in the future,” Guntur said.

He added that the Court has the freedom to choose and use the methods of interpreting the Constitution in order to provide answers and constitutional solutions to arguments or questions regarding the meaning of laws and that of constitutional provisions or norms.

“What is certain is that the Constitutional Court places the 1945 Constitution, which contains the values, vision, goals, and cosmology of the Indonesian nation, as the main provider of perspective and makes it a ‘living constitution’ so that it truly becomes an ideology, rule, guideline, as well as direction to law and state with justice,” he said.

Resolution of Cases

Guntur also explained that the entire process of resolving cases that lead to decisions is based on the procedure and procedural law and a unified thought process among the constitutional justices using accountable constitutional interpretation according to law and legal science.

He believes that the Court pass decisions after utilizing the constitutional justices’ legal knowledge and reasoning based on legal philosophies and theories using the logic and perspective of the 1945 Constitution. Thus, the decisions can be understood and accepted by justice seekers in particular, and society in general.

He said the Court often took decisive ways and steps to remove obstacles to injustice. “For example, the Constitutional Court Law stipulates three types of verdicts—rejected, inadmissible, and granted. In the development of the practice of adjudicating cases, the three types of decisions were seen as not being able to realize constitutional justice” he said.

He stressed that not all cases can be answered completely by simply choosing one of the three types of verdicts. Therefore, in several decisions, to ensure that constitutional justice can be realized, the Court has adapted other variants of verdicts: conditionally constitutional and conditionally unconstitutional. A norm can be declared conditionally unconstitutional because its implementation does not guarantee constitutional rights. The doctrine of constitutional judicial review revolves around whether the norms being reviewed are constitutional or not.

Ultra Petita

Guntur added that the Court often had to decide on cases ultra petita or beyond what is requested by the petitioner in the petitum. It is not without strong arguments. It is done to prove that the constitutional review is not merely a review to state that a norm of the law is constitutional or not, but more than that, to achieve the greater purpose of the Constitution within the framework of the Constitutional Court as the guardian of the moral constitution and the protector of constitutional rights.

The Court received opposition when ruling ultra petita, and such a ruling was banned in Law No. 8 of 2011 on the Amendment to the Constitutional Court Law. However, it was then declared unconstitutional when petitioned to the Court.

“The ultra petita ruling is deemed a necessity for the Constitutional Court under certain conditions in order to realize constitutional justice,” Guntur explained.

Moreover, almost in every judicial review petition, the petitioner states “If the Constitutional Court decides otherwise, the petitioner asks for a fair decision (ex a quo et bono).” This shows that they have entrusted the Court to adjudicate and submitted to its decision.

As a consequence, the litigating parties are obliged to obey the Court’s decisions, even if the Court uses a different standard of justice. At this point, the Constitutional Court’s efforts to realize constitutional justice are very open and unavoidable.

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

Translation uploaded on 9/21/2021 14:50 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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