Constitutional Justice Suhartoyo speaking at the Special Education of Professional Advocate of the Law Faculty of the Law Faculty of Andalas University and the national executive board of Peradi, Saturday (9/25/2021). Photo by Humas MK/Ilham W.M.
Saturday, September 25, 2021 | 13:30 WIB
JAKARTA, Public Relations—The participants of the Special Education of Professional Advocate (PKPA) organized by the Law Faculty of Andalas University and the national executive board (DPN) of the Association of Indonesian Advocates (Peradi) asked many questions at the event on Saturday, September 25, 2021.
A participants asked whether all articles in the 1945 Constitution guarantees the citizens’ constitutional rights. Constitutional Justice Suhartoyo answered in the affirmative.
“Not each article talks about constitutional rights as they do certain materials but they are all inseparable. Overall, they must be related to the citizens’ constitutional rights,” he said.
There was a question on whether the articles that have been reviewed in the Constitutional Court can be re-petitioned. Responding to it, Justice Suhartoyo revealed that Article 60 paragraph (1) of Law No. 8 of 2011 on the Constitutional Court reads, “No review may be conducted again on material substance of paragraphs, articles and/or a section of a law which has already been subjected to a review.” However, there is an exception in Article 60 paragraph (2), “The provision as referred to in paragraph (1) can be excluded if the content material in the 1945 Constitution of the Republic of Indonesia, which is used as the touchstone, differs.”
“Therefore, the articles have been reviewed in the Constitutional Court can be re-petitioned with a different touchstone. A new regulation even stipulates that it can be with a different background,” Justice Suhartoyo responded.
Another participant asked about the Government and the DPR’s (House of Representatives) role in the Court hearings and whether they can play a different role, such as making a defense for the Respondent. Justice Suhartoyo explained that the judicial review is voluntary, meaning that there is a petitioner but not a respondent. The Government and the House testify not as the Respondents but only to respond to the Court’s summons.
Procedural Law
Before the Q&A session, Justice Suhartoyo gave a presentation on “The Procedural Law in the Constitutional Court.” He said the procedural law in the Constitutional Court depends on which one of the Court’s four authorities and obligation—judicial review, deciding on interagency disputes, on political party dissolution, on election disputes, and on the House’s opinion on the alleged crime by the president and/or vice president—is being exercised. The Court also has an additional authority to settle regional head election (pilkada) disputes, which is not mandated by the Constitution.
The authorities and obligation are referred to 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 additional authority to settle pilkada disputes.
He stressed that there is a petitioner but not a respondent in a judicial review case, which is not the case in other types of cases where conflict of interests exists.
He then explained the Court’s authorities in more detail. Laws can be reviewed materially and/or formally. Formal judicial review concerns the lawmaking process and matters not included in the material judicial review. Meanwhile, material judicial review concerns the content of laws that are deemed in conflict with the 1945 Constitution.
A petitioner files a judicial review petition because their constitutional rights are violated due to the enactment of the law. This constitutional loss must be specific, actual, or potential. In addition, there must be a causal relationship between the perceived loss and the enactment of the norm.
He added that individual citizens, customary law communities, private and public legal entities, and state institutions can file a petition to the Constitutional Court. A petitioner and/or Respondent may be assisted or represented by legal counsels, while a private and public legal entity may be assisted by or appoint legal counsels. The counsels do not have to be advocates but must be familiar with the procedural law in the Constitutional Court. This is to provide a wider access to justice to the community. A legal counsel who is not an advocate can provide assistance by first requesting it through a letter.
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 lodged on-site or online.
He also explained that the process involves a panel preliminary examination hearing presided over by three constitutional justices, which the petitioner and/or their counsel attend. The justices provide advice to improve the petition at this hearing and the next, which is a petition revision hearing. If the case continues, it will advance to the plenary examination hearings, where the justices hear the testimonies of the experts, witnesses, the Government, the House (DPR), the MPR (People’s Consultative Assembly), or other institutions. The case concludes with a ruling hearing. In a judicial review case, there is no respondent, because the object is a law. In contrast, in an election or pilkada dispute case, the petitioner, the respondent, Bawaslu (Elections Supervisory Body), and the relevant party testify before the Court.
The Court’s decisions, Justice Suhartoyo said, are erga omnes in that even if the case is petitioned by individuals, it applies in general and affects the law in Indonesia. They are also final and binding, and no legal measure can be taken after the decision is passed. He also added that the Court can rule a law conditionally constitutional or unconstitutional.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/4/2021 07:30 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Saturday, September 25, 2021 | 13:30 WIB 168