Deputy Chief Justice Aswanto giving a keynote speech virtually at the Special Education of Professional Advocate of the Sharia and Law Faculty of UIN Alauddin Makassar and Peradi, Sunday (9/19/2021). Photo by Humas MK/Panji.

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Sunday, September 19, 2021 | 20:32 WIB

JAKARTA, Public Relations—Deputy Chief Justice of the Constitutional Court (MK) Aswanto gave a keynote speech on “The Procedural Law of the Constitutional Court” virtually at the Special Education of Professional Advocate (PKPA) organized by the Sharia and Law Faculty of the Alauddin State Islamic University (UIN) of Makassar and the Association of Indonesian Advocates (Peradi) on Sunday, September 19, 2021.

He explained the judicial power after the amendment to the 1945 Constitution. Article 24 paragraph (2) of the 1945 Constitution reads, “Judicial power shall be made by a Supreme Court and judicial bodies thereunder within a general judicature, religious court, military court, state administration court, and by a Constitutional Court.”

He then explained the Court’s authorities and obligation pursuant to Article 24C paragraph (1) of the 1945 Constitution. The Court’s authorities are also regulated in Article 10 of Law No. 24 of 2003 on the Constitutional Court as amended by Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court, as well as Article 29 paragraphs (1) and (2) of Law No. 48 of 2009 on the Judicial Power.

Based on this provision, he said, the Court has four authorities and one obligation. The Court has the authority to review laws against the Constitution, 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 of Representatives’ (DPR) opinion on an alleged constitutional violation of law committed by the president and/or vice president.

Justice Aswanto said Indonesia is a law-based state, as the Constitution stresses, not a power-based state. There is still a lot of room for improvement in how the state carries out its duties and functions. “One of them is that we must not only be a rechtsstaat, but also a rule of law,” he said.

In a rechtsstaat, the people must abide by the norms under the legislation. If the substance of those norms are deemed partial to certain groups or having harmed the citizens’ constitutional rights, they can be reviewed through the Constitutional Court.

“If a law is considered reducing, eliminating, or degrading the citizens’ constitutional rights granted by the 1945 Constitution, citizens can bring it to the Constitutional Court,” Justice Aswanto said.

He also explained the distinction between state institutions. Some have authorities that are granted by the 1945 Constitution, while others by the law. “[The Court] decides on authority disputes between state institutions whose duties and authorities are regulated directly in the 1945 Constitution or are attributive,” he added.

The Court ruled Article 50 of Law No. 24 of 2003, which had a provision that stipulated that the Constitutional Court could only rule on laws promulgated after the amendment to the 1945 Constitution, unconstitutional in Decision No. 066/PUU-II/2004 on the judicial review of Law No. 1 of 1987 on the Indonesian Chamber of Commerce and Industry (Kadin). The Court is also authorized to review government regulations in lieu of laws (perppu) with the rationale that perppu can generate new legal norms whose standing equals that of laws.

The Constitutional Court can review laws materially and/or formally. Formal judicial review concerns the lawmaking process and matters outside of material judicial review. Meanwhile, material judicial review concerns the content of articles, paragraphs, and/or part of laws that are deemed in conflict with the 1945 Constitution, pursuant to Article 2 paragraph (4) of the Constitutional Court Regulation (PMK) No. 2 of 2021.

Writer        : Utami Argawati
Editor        : Nur R.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 9/29/2021 14:03 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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