Constitutional Justice Suhartoyo speaking at the technical assistance program on Legal Drafting Batch III for constitutional and administrative law lectures, Tuesday (9/7/2021). Photo by Humas MK/Teguh.
Tuesday, September 7, 2021 | 20:56 WIB
JAKARTA, Public Relations—On the second day of the technical assistance program (bimtek) on Legal Drafting Batch III commenced Tuesday, September 7, 2021, Constitutional Justice Suhartoyo delivered a presentation on “The Procedural Law of Judicial Review,” I Dewa Gede Palguna talked about “Constitutional Interpretation,” Nuryanti Widyastuti talked about “The Types, Hierarchy, Functions, and Materials of Laws and Regulations,” while the Secretary of the Directorate General of Legislation of the Law and Human Rights Ministry Priyanto covered “The Legal Politics in Lawmaking in Indonesia.”
In his presentation, Priyanto said the stages of lawmaking According to Law No. 12 of 2011 on Lawmaking were planning, drafting, discussion, ratification, stipulation, and promulgation of laws while laws are written rules that contain legally binding norms in general and are formed or determined by state institutions or authorized officials through procedures stipulated in laws and regulations.
He further explained the National Legislation Program (Prolegnas) as a lawmaking instrument to form laws in a planned, integrated, and systematic manner. It is a deliberate effort to develop a priority lawmaking scale to fulfill the community’s legal needs and the state interests. It is prepared in a coordinated and systematic manner with certain parameters and methods, both within the Government and the House of Representatives (DPR) as well as between the Government and the House.
The list of bills is prepared based on the 1945 Constitution, the TAP MPR (People’s Consultative Assembly Decrees), other laws, the national development planning system, RPJPN (National Long-Term Development Plan), RPJMN (National Medium-Term Development Plan), RKP (Government Work Plan), the House’s strategic plans, and the people’s legal needs. The Prolegnas is prepared by the House and the Government through the House’s instrument on legislation.
“The preparation of Prolegnas in the House considers recommendations by the factions, commissions, MPs, DPD, and/or community. In the Government, it is coordinated by the Minister of Law and Human Rights,” he said.
Priyanto explained that the Prolegnas that had been agreed upon by the House, the DPD, and the Government was then ratified in the House’s plenary session and stipulated with the House’s Decision (No. 1/DPR RI/IV/2020-2021 on the National Legislation Program for the 2021 Priority Bill and the National Bill Legislation Program for 2020-2024).
The Prolegnas includes a list of open cumulative bills, consisting of the ratification of certain international treaties. Meanwhile, in certain circumstances, a bill outside the Prolegnas can be submitted alongside the House’s Legislation Body (Baleg) and the Minister of Law and Human Rights to address extraordinary circumstances, conflict situations, or natural disasters and other circumstances.
Priyanto also explained that academic texts were scientifically justifiable results of research or legal studies on a certain issue for a bill of law.
Interpreter of Constitution
Next, I Dewa Gede Palguna, a former constitutional justice for two terms, talked about constitutional interpretation. He explained that its most general definition is activities that include understanding the methods or strategies for people who are trying to resolve disputes regarding the meaning or application of the Constitution.
“From that general definition, we find that constitutional interpretation is one of the ways to elaborate the meanings in the Constitution,” he said.
He added that constitutional interpretation is not merely matching certain events or things or circumstances with articles or provisions in the Constitution, but more than that. It means seeking to elaborate on the meanings contained in the Constitution. Thus, it is a mechanism to find out or ascertain whether the Constitution has actually been implemented in practice in accordance with the meanings therein and the objectives to be realized by the Constitution.
He then said that K.C. Wheare, an expert on constitution, defined a constitution as resultante (agreement product) of various political, economic, and social forces at the time it is adopted. Therefore, the constitution is relatively static and not easily changeable. However, it is always in need of improvement.
Palguna added that in countries that adopts the concept of constitutional supremacy, the authority to interpret the constitution is granted to the judiciary, whether it is a special court such as the constitutional court or a general one with the authority that resembles that of the constitutional court. In other words, judicial supremacy applies in constitutional interpretation, meaning that constitutional interpretation is binding legal force and final, and is carried out only by a court.
He believes judicial supremacy is very important because the Constitution requires an independent interpreter that is not subject to public pressure or electoral instability. If the judiciary is not given such authority, the constitutional order is threatened with political squabbles. This opinion is also supported by the majority of experts, including Erwin Chemerinsky and John Hart Ely. Thus, the Constitutional Court as the interpreter of the Constitution implies that only the interpretation of the Constitution by the Constitutional Court (through its decisions, in particular in relation to its judicial review authority) is legally binding.
Types of Legislation
Next, the Director of Regional Regulation Planning Facilitation and Training Nuryanti Widyastuti delivered a presentation on “The Types, Hierarchy, Functions, and Materials of Laws and Regulations.” She explained that laws and regulations are written regulations that contain norms that are legally binding in general and are formed or stipulated by authorized state institutions or officials through the procedures stipulated in the laws and regulations.
She added that pursuant to Article 5 of Law No. 12 of 2011 on Lawmaking laws must possess clarity of purpose, proper institution or official for the formation; as well as compatibility of types, hierarchy, and content. Laws and regulations must be applicable, usable, effective, clear, and transparent.
She added that, pursuant to Article 6 of Law No. 12 of 2011, laws and regulations must apply the principles of humanity, nationality, kinship, archipelago, unity in diversity, justice, equality in law and government, order and legal certainty, and/or balance and harmony.
She also said that certain laws and regulations may contain other principles. In criminal law, for example, these are legality and presumption of innocence; whereas in civil law these are contract law, agreement, freedom of contract, and good faith.
Procedural Law on Judicial Review
Constitutional Justice Suhartoyo also presented “The Procedural Law on Judicial Review.” The judicial review authority, he said, is mandated by the 1945 Constitution. He explained the two models of judicial review cases. First, formal judicial review concerns the lawmaking process and procedure. Second, material judicial review concerns the content of laws.
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.
Justice Suhartoyo also explained that the proceedings start with a preliminary hearing where the constitutional justices advise the petitioner. It is followed by a petition revision hearing. Next, at the evidentiary hearings, experts, witnesses, and other parties are summoned to testify. The proceedings conclude with a ruling hearing.
The Constitutional Court (MK) collaborates with the Ministry of Law and Human Rights and the Association of Constitutional and Administrative Law Lectures of Indonesia (APHTN-HAN) to organize the program, which will be taking place on September 6-10, 2021 virtually.
Writer : Utami Argawati
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/21/2021 17:21 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.
Tuesday, September 07, 2021 | 20:56 WIB 321