Constitutional Justice Enny Nurbaningsih speaking at the constitution awareness program for the Indonesian Association of Persons with Disabilities (PPDI), Thursday (10/7/2021). Photo by Humas MK/Teguh.

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Thursday, October 7, 2021 | 20:20 WIB

BOGOR, Public Relations—The second day of the constitution awareness program for the citizens (PPHKWN) for the Indonesian Association of Persons with Disabilities (PPDI) commenced virtually at the Pancasila and Constitution Education Center, Bogor, on Thursday, October 7, 2021. Today Constitutional Justice Enny Nurbaningsih gave a presentation on “The Constitutional Court and the Procedural Law for the Judicial Review of Laws Against the 1945 Constitution.”

Justice Enny opened her presentation by explaining Indonesia’s struggle for a body to guard the Constitution, on of which by reviewing laws against it. Moh, Yamin, she said, proposed that a Supreme Court be given the authority to review laws. The proposal was rejected on the ground that it would have been indicative of trias politica, what at the time equaled a colonial legacy. However, the idea lived on.

“In the history, even during the initial discussion of the original text of the 1945 Constitution, there were demands for a Supreme Court to be given the authority to review laws. However, our constitutional system had not arranged for any institution to do it. The judicial review authority didn’t exist until the Reform era,” she said virtually.

In the Reform era, she added, the People’s Consultative Assembly (MPR) issued the Decree No. III/MPR/2000 on the Sources of Law and the Hierarchy of Legislation. Article 5 paragraph (1) read, “The People’s Consultative Assembly shall have the authority to review laws against the 1945 Constitution and the Decree of the People’s Consultative Assembly.”

“However, it was not exercised until the amendment to the 1945 Constitution in the Reform era,” she revealed.

After the amendment, Justice Enny said, the Constitutional Court was founded with authorities as referred to in Article 24C paragraph (1) of the 1945 Constitution: to adjudicate at the first and last level laws against the 1945 Constitution with decisions that are final, to decide on authority disputes between state institutions whose authorities are granted by the Constitution, to decide on the dissolution of political parties, and to decide on disputes over general election results. Pursuant to Article 24C paragraph (2) of the 1945 Constitution, the Court is obligated to decide on the House’s opinion on an alleged violation of law committed by the president and/or vice president. In addition, pursuant to Article 157 paragraph (3) of Law No. 10 of 2016 (Pilkada Law), disputes over the certification of the final votes in the regional election are examined by the Court until a special judicial body is founded.

Justice Enny also explained that laws can be reviewed materially and/or formally. Material judicial review concerns the content of articles, paragraphs, or part of laws that are deemed in conflict with the 1945 Constitution. Meanwhile, formal judicial review concerns the lawmaking process and matters outside of those of material judicial review.

Petition Drafting Technique

Deputy registrar Rizky Amelia also gave a presentation on “The Drafting of a Judicial Review Petition.” She said that based on Article 7 paragraph (1) of the Constitutional Court Regulation (PMK) No. 2 of 2021, the parties in a judicial review case are the petitioner(s), the testifier(s), and the relevant part(ies). “The could be represented by a legal counsel based on a power of attorney and/or assisted by one based on an appointment letter,” she said.

She explained that a petitioner is one who feels that their constitutional rights and/or authorities are harmed by the enactment of a law. They could be Indonesian individual 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, private and public legal entities, as well as state institutions.

In the petition, she added, the petitioner must detail their constitutional losses. specific, actual, or potential, which according to logical reasoning is inevitable. In addition, there must be a causal relationship between the perceived loss and the enactment of the norm.

Rizky further explained that 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 minutes of House sessions on the facts during the discussion of the law/government regulation in lieu of law (perppu), 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.

The formal and/or material judicial review petition of a law or a perppu, Rizky explained, must be filed in writing to the Court. “The petition can be filed online or in person. The document must consist of at least one original copy in Indonesian signed by the petitioner/their legal counsel, a photocopy of the identity of the petitioner/their legal counsel’s identity card, a power of attorney, and a 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, and the petitum,” she stressed.

After the presentations, the participants practiced drafting a petition under the guidance of the Court’s deputy registrars.

Also read:

Chief Justice Talks Objective of Founding of State to Persons with Disabilities

Maria Farida: Constitution in a Central Position in a Democratic State

The constitution awareness program for the citizens (PPHKWN) for the Indonesian Association of Persons with Disabilities (PPDI) will be taking place since Tuesday-Saturday, October 5-9, 2021. Around 100 people with disabilities throughout Indonesia attended the virtual event.

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

Translation uploaded on 10/9/2021 17:53 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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