Secretary-General M. Guntur Hamzah speaking at a focus group discussion on the implementation of the Constitutional Court’s decisions, Saturday (10/2/2021). Photo by Humas MK.

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Saturday, October 2, 2021 | 18:53 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) organized a focus group discussion (FGD)on “The Monitoring and Evaluation of the Implementation of the Constitutional Court’s Decisions in 2021” in collaboration with the Law Faculty of the University of Jember both onsite and online on October 2-4, 2021. Experts from universities, several officials and staff members of the Constitutional Court, and the faculty members and students of the University of Jember attended the event.

“I look at the FGD as a very good step forward. It is a positive sign that the ideas and results of monitoring and evaluation in various places will hopefully be reflected in the results of the monitoring that we will carry out. Hopefully the quality of the monitoring and evaluation will keep on improving,” said Secretary-General M. Guntur Hamzah before opening the event officially.

Comprehensive

Guntur said that aside from being final and binding and erga omnes across all territories of the Unitary State of the Republic of Indonesia (NKRI), the Constitutional Court’s decisions must be implemented immediately and directly, without having to wait for any institution to execute them.

“We can also investigate and monitor whether the Court’s decisions will be implemented immediately after it read out its rulings or if there is still a delay in the implementation. As a product and process of the judiciary, the Court’s decisions can be implemented immediately,” Guntur said.

He added that the Court’s decisions might have been implemented fully, partially, or not at all. Those that have not been implemented could still be implemented in the future.

“We use this to view the monitoring of the Court’s decisions. We should improve the monitoring and evaluation reporting, which has been comprehensive,” he said.

A Tool to Measure Compliance with the Constitution

Next, the Head of the National Law Development Agency (BPHN) Widodo Ekatjahjana said the FGD is aimed at discussing nine laws: the Limited Liability Company (PT) Law, the Notary Public Law, the Judicial Commission Law, the Tax Court Law, the Forestry Law, the Aceh Government Law, the Medical Practice Law, the Electricity Law, and the Lawmaking Law. Working groups (pokja) will be formed to discuss those laws.

Widodo has observed that the monitoring and evaluation instrument of the Court’s Secretariat-General has been functioning well although he once recommended that it be improved. The Director-General of Legislation of the Ministry of Law and Human Rights, the Director of Law and Regulations of the National Development Planning Agency (Bappenas), and the Ministry of Administrative and Bureaucratic Reform should give presentations to assist the Court on this matter.

“We must involve the Ministry of Administrative and Bureaucratic Reform because it has the instrument or tool to achieve compliance with [the Corruption-Free Zone (WBK) and the Clean and Serving Bureaucracy Zone (WBBM)]. If the Court’s monitoring and evaluation instrument tool is integrated with that of the Ministry of Administrative and Bureaucratic Reform, I am proposing that one of the indicators to become WBK and WBBM in ministries/agencies be added with compliance with the Constitution, not laws and regulations, not the Constitutional Court’s decisions,” he said.

This proposal, he said, is for the implementation of the Court’s decisions to be more binding and effective. However, clear standards and normative criteria must be set up, for example what constitutes compliance or noncompliance with the Court’s decisions and when it occurs.

Widodo believes the monitoring and evaluation of compliance with the Court’s decisions to be one of the instruments to measure the effectiveness of those decisions. This especially for judicial review, where those decisions bind not only the petitioners and the Government, but all citizens.

“All stakeholders must implement the provisions that the Court has decided. I noted that in practice, when the Court’s decisions have been pronounced and read by the public, this is what we must maintain. The difficulty to maintain this is that this room is freedom of interpretation. There is not one norm in the Constitution and laws that provides interpretation,” he stressed.

Secretary-General M. Guntur Hamzah responded positively to this recommendation, which he thought would be beneficial.

Beneficial for Society

Meanwhile, Rector of the University of Jember Iwan Taruna expressed his gratitude to the Court for organizing the event as well as to the experts and participants that attended it.

“This FGD on the Constitutional Court’s decisions of 2021 is an important and extraordinary event. Hopefully it runs well and succeed to achieve its goals. This event is an energy that the Constitutional Court expends and will be beneficial to society,” he said.

Next, the university’s Law Faculty Dean Bayu Dwi Anggono said that the event would be an intellectual meeting of academics from universities across Indonesia. “I believe the views of many academics and universities will improve the quality of the output of this FGD. The output of the results of monitoring and evaluation of the third trimester of 2021, which involved many experts, will improve,” he stressed.

Importance of Monitoring and Evaluation

At the FGD, Guntur Hamzah gave a presentation on “The Monitoring and Evaluation of the Implementation of the Constitutional Court’s Decisions.” He explained that with the 1945 Constitution being the highest law in Indonesia shows that the state upholds constitutional supremacy. As such, no laws and regulations should conflict with the Constitution.

“Abiding by the Constitution not only means complying with all of its provisions, but also with the decisions of the institution that guards it—the Constitutional Court. Consequently, all state administrative institutions and citizens must implement the Constitutional Court’s decisions,” he said.

He then explained the importance of monitoring and evaluation. All stakeholders bound to implement the Court’s decisions are not only the legislatures—the Government and the House of Representatives (DPR)—but also all parties related to the implementation of laws that the Court decides, as the decisions are erga omnes or applying to all citizens.

He also revealed that the Court has monitored and evaluated the Court’s decisions in 2021: in trimester I there are 21 decisions, 8 of which concern judicial review; in trimester II there are 19 decisions, 9 of which concern judicial review.

The monitoring and evaluation results show that 17 decisions have been fully implemented in trimester I, 3 partially implemented, 1 not implemented at all. In trimester II (the object of this FGD), 12 decisions have been fully implemented, 5 partially implemented, 2 not implemented at all.

Guntur believed the FGD was important to measure the implementation of the Court’s decisions in society. The experts who will speak at the FGD will provide inputs for the Court in order to design strategies for the implementation of its decisions, including through monitoring and evaluation, which has been conducted several times.

Government’s Role

The Director of Litigation of the Directorate-General of Legislation Liestiarini Wulandari said that the Government and the House’s role in the judicial review in the Constitutional Court is as testifiers.

“The Government’s role in Law No. 24 of 2003 as amended by Law No. 7 of 2020 on the Constitutional Court is that the Constitutional Court can request testimony and/or minute of meetings related to the petition that it is examining to the MPR, DPR, DPD, and/or president,” she said.

However, should the Court not urgently require the testimonies of the parties as referred to in Article 54 of the Constitutional Court Law, they are not requested to the president or those parties. Meanwhile, the Government’s function in judicial review of laws is to testify on the subject matter of the petition, as referred to in Article 1 point 2 of the Presidential Regulation No. 100 of 2016 on the Resolution of Judicial Review of Laws in the Constitutional Court and of Regulations Under Laws in the Supreme Court.

Writer        : Nano Tresna Arfana
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 10/5/2021 18:03 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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