Constitutional Justice Saldi Isra speaking at the constitution awareness program for the academic community of Maranatha Christian University virtually, Thursday (9/16/2021). Photo by Humas MK/Teguh.
Thursday, September 16, 2021 | 19:37 WIB
JAKARTA, Public Relations—The third day of the constitution awareness program for the citizens (PPHKWN) for the Maranatha Christian University, Bandung, which the university organized in collaboration with the Constitutional Court (MK), commenced virtually on Thursday, September 16, 2021.
In the first session, Constitutional Justice Saldi Isra talked about “Litigating at the Constitutional Court.” he began his presentation by saying that the constitution is the general design of the state.
“Any constitution in the world shows the design of the state. We will find it difficult to understand the design of a state if we do not know its [constitution]. In the constitution, we can see the form of a state, whether a federal or unitary state. The constitution may explicitly describe the state as a unitary state. It may explicitly describe it as a federal state,” he explained.
Crown of Constitutional Court
Justice Saldi said the 1945 Constitution describes Indonesia as a unitary state and defines the state government. It also reflects the state institutions and those that exercise the executive, legislative, and judicial functions. The Constitution of Indonesia stipulates that the judicial power is exercised by the Supreme Court (MA) and the courts thereunder as well as the Constitutional Court (MK). This model, he said, is different from that of the United States, where the judicial power is only exercised by the Supreme Court.
“If we lay out the relations of state institutions in our administration system, the Constitutional Court is a judicial body authorized to settle administrative political issues,” Justice Saldi explained.
The Constitutional Court’s crown, he said, is guarding the laws materially and formally so that their lawmaking process and substance don’t conflict with the Constitution. Such a conflict, he said, is highly probable because the laws are created by bodies that have political interests. Therefore, the Constitutional Court was given authority by the Constitution to repeal any substance of laws that are unconstitutional.
Justice Saldi further explained the Court’s authorities: examining laws against the Constitution (judicial review), deciding on authority disputes among state institutions, deciding on the dissolution of political parties, and deciding on disputes over general election results. The Court is also obligated to decide on the House of Representatives’ (DPR) opinion on an alleged violation of law committed by the president and/or vice president. It most frequently reviews laws against the Constitution, but has never ruled on the House’s opinion of an alleged violation of law committed by the president and/or vice president. Aside from those, the Court also have an additional authority to decide on disputes over regional head election results.
In judicial review of laws, the Court is passive in that it cannot urge citizens to file a petition and cannot review laws on its own accord. “The Court waits for petitions to be lodged,” Justice Saldi stressed.
Next, Justice Saldi said the Constitutional Court Law doesn’t explain in detail the judicial review procedure. In the Constitutional Court the term “petition”, not “lawsuit,” is used for the judicial review cases. In these cases, the petitioner only review laws, where there is no defendant as is in general and civil cases. As such, the petitioner and the Government and the House not on opposing sides because the latter only offer testimonies. If the Court is satisfied only with the petition, it might not summon the Government and the House, which has been the case in a number of cases.
Justice Saldi explained that the petition may be lodged online or in person. Many petitioners, however, prefer coming to the Court in person. The petition is then checked by the Registrar’s Office to see whether they meet the requirements and have sufficient evidence. Then, it is registered in the constitutional case registration book (BRPK). The Registrar’s Office then review the substance of the petition, the law and articles being petitioned, etc.
The Registrar’s Office then bring the petition to the chief justice, who then appoints a panel of three constitutional justices to examine the initial petition. The panel and researchers review the petition’s substance, format, and so on. Then a preliminary hearing takes place where the completeness of the petition and clarity of the substance. The petitioner is then given 14 workdays to revise or complete the petition. By law, the panel of justices are mandated to give advice for the petition’s improvement.
The next is a petition revision hearing. If the justice deliberation meeting (RPH) decides that the petition can advance to the plenary evidentiary hearings, the Government, the House, experts, and witnesses are presented. After that, the petition is discussed in another RPH. What follows is the ruling hearing.
Petition Drafting Technique
In the second session, Deputy Registrar Syukri Asy’ari talked about “Judicial Review Petition Drafting Technique.” Before inviting the participants to practice drafting a judicial review petition, Syukri first explained its theories, especially concerning material judicial review.
“Judicial review cases only have one party, while [the object] is the norms of laws. There is a petitioner but no respondent or opposing party,” he said.
Syukri explained that in such a case there are the petitioner(s), the testifiers, and the relevant part(ies). They can be represented by a legal counsel based on a special power of attorney and/or accompanied by a counsel based on a certificate.
“The petitioner is a party who believes that their constitutional rights and/or authorities are harmed due to the enactment of the law. They could be Indonesian individuals or group of citizens with a common interest, customary law communities that live according to the principles of the Unitary State of the Republic of Indonesia and statutory laws, private and public legal entities, and state institutions,” he explained.
The Court may summon the People’s Consultative Assembly (MPR), House of Representatives (DPR), Regional Representatives Council (DPD), and/or president to testify and/or request the minute of House sessions in relation to the petition. The testimony should at least include a clear elaboration of the facts during the discussion of the law/government regulation in lieu of law (perppu) and/or its minutes, and other matters that the testifiers deem important or the Court requests.
The relevant party is the party whose rights and/or authorities are directly impacted by the core of the petition or indirectly but has concerns over the petition.
Syukri then explained the requirements for filing a petition, be it online or in person. The original copy of the petition should be written in Indonesian and signed by the petitioner/their legal counsel. It should at least consist of a photocopy of the identity of the petitioner/their legal counsel’s identity card, a power of attorney, and statute/bylaw. It must also at least contain the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the background of the petition (posita), and the petitum.
After the presentations were finished, the participants practiced drafting a judicial review petition. They were divided into groups to implement the information on the petition format from the presentation.
The Constitutional Court (MK) collaborated with Maranatha Christian University to organize a constitution awareness program for the citizens (PPHKWN), which was officially opened by Chief Justice Anwar Usman on Tuesday evening, September 14, 2021 from the Pancasila and Constitution Education Center, Cisarua, Bogor. Several speakers give their presentation at the program, which has been taking place for four days on Tuesday-Friday, September 14-17, 2021.
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Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/29/2021 11:47 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.
Thursday, September 16, 2021 | 19:37 WIB 214