Chief Justice Anwar Usman giving a speech and opening a focus group discussion on “The Urgency of Lawmaking and Strengthening the Constitutional Court’s Procedural Law,” Wednesday (10/13/2021). Photo by Humas MK/Ilham W.M.
Wednesday, October 13, 2021 | 15:21 WIB
JAKARTA, Public Relations—Chief Justice of the Constitutional Court (MK) Anwar Usman officially opened a focus group discussion (FGD) on “The Urgency of Lawmaking and Strengthening the Constitutional Court’s Procedural Law” on Wednesday, October 13, 2021 at the hall of the Constitutional Court, which took place onsite and virtually. Three former constitutional justices—I Dewa Gede Palguna (2003-2008 and 2015-2020), Maruarar Siahaan (2003-2009), and Harjono (2003-2008 and 2009-2013)—gave presentations. The discussion was moderated by constitutional law experts Muchamad Ali Safa’at, Heru Widodo, and Andi Asrun.
Justice Anwar said that since the Court was founded in 2003, its procedural law has been regulated in general in the Constitutional Court Law, and specifically in its regulations (PMK).
“The importance of the Constitutional Court’s procedural law being regulated in a separate law, has been discussed several times, but it did not end with the regulation of the Court’s procedural law in a separate law,” Justice Anwar said alongside Deputy Chief Justice Aswanto and the other constitutional justices.
The Court’s procedural law has been developed through its hearings and decisions, by the first constitutional justices and current ones, he said. This was not intended, but served to fill in legal vacuum and to protect citizens’ constitutional rights.
For example, the Court’s establishment was regulated in Law No. 24 of 2003 on the Constitutional Court. One norm in the law stipulated that laws that could be petitioned for review were limited to those promulgated after the 1999-2002 amendment to the 1945 Constitution. This provision was based on the principle that the law must be prospective, not retroactive.
However, he said, the provision was not in line with the Constitutional Court’s objective to protect the citizens’ constitutional rights from the enactment of unconstitutional laws. In fact, any law, even those passed before the amendment to the 1945 Constitution, could have violated the citizens’ constitutional rights. According to the formal requirement in the procedural law of judicial review, such a law can be petitioned. The Court then annul the article through Decision No. 066/PUU-II/2004.
Justice Anwar further said that the next important thing in a judicial review petition is the petitioner’s legal standing. Although Article 51 of the Constitutional Court Law determines who can be a petitioner in a judicial review case, there have been developments in the requirements in the Court’s decisions. Since 2004, the Court has expanded the requirements as an interpretation of Article 51 of the Constitutional Court Law. There are at least three precedents for later decisions in relation to constitutional requirements for the petitioners: Decisions No. 003/PUU-I/2003, 006/PUU-III/2005, and 11/PUU-V/2007.
“In terms of the Court’s verdicts, the Constitutional Court Law only stipulates three variants: [petition declared] inadmissible, rejected, or granted. However, in its development, they are expanded to conditionally constitutional and conditionally unconstitutional. In fact, even if the Court rejects the petition in its verdict, in its considerations, it may recommend that the legislatures amend [the law]. There are more variants in the procedural law that are developed from the Court’s decisions, including the latest procedural law for judicial review as regulated in the Constitutional Court Regulation No. 2 of 2021,” Justice Anwar explained.
He likened procedural law to a bridge for justice seekers to justice that they want to achieve. Without procedural law that provides fair legal certainty, it is impossible for material law to be enforced. Because there is no special law that regulates the Constitutional Court’s procedural law, and in order to complement the provision on procedural law in the Constitutional Court Law, a Constitutional Court Regulation on procedural law was drafted.
The procedural law, he said, is not formal and rigid as others are. It acts as guidelines for the parties. In certain situations, the constitutional justices even have to deliberate to decide certain actions when the hearings call for new development.
Theoretically, Justice Anwar said, procedural law is a product of the lawmaking process and is the responsibility of the legislatures. However, its development also has a justifiable legal reasoning basis. Ideally, both should be hand in hand in order to realize fair legal certainty for all justice seekers.
The FGD was aimed formulating a bill that specifically regulates the Constitutional Court’s procedural law. The Court’s staff members, administrators of the Association of Constitutional and Administrative Law Lectures of Indonesia (APHTN-HAN), administrators of the Association of Lecturers on Procedural Law of the Constitutional Court (APHAMK), and representatives of other state institutions attended the event.
Writer : Utami Argawati
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/15/2021 12:13 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.
Wednesday, October 13, 2021 | 15:21 WIB 323