Constitutional Justices Enny Nurbaningsih and Manahan M. P. Sitompul giving a lecture at Warmadewa University, Bali, Friday (10/22//2021). Photo by Humas MK/Hamdi.
Friday, October 22, 2021 | 21:11 WIB
DENPASAR, Public Relations—Constitutional Justices Enny Nurbaningsih and Manahan M. P. Sitompul gave a public lecture on “The Constitutional Court and the Characteristics of Its Procedural Law,” both onsite and online (hybrid) on Friday, October 22, 2021 at Warmadewa University, Bali.
Justice Enny began the lecture by explaining the emergence of the Constitutional Court (MK) in Indonesia. “The Constitutional Court is the sweet fruit of the Reform. Without the Reform, I wouldn’t be here and the Constitutional Court wouldn’t exist. Why so? It is because judicial review was improbably before the Reform,” she said.
The history of the Constitutional Court in Indonesia began with Mohammad Yamin’s proposal that the Supreme Court be given an authority to review laws. The idea was rejected by Soepomo because Indonesia did not follow trias politica and there were not many qualified law graduates at that time.
Embryo of Constitutional Court
At the beginning of the 1998 Reform, Justice Enny revealed, the People’s Consultative Assembly Decree (TAP MPR) No. III/MPR/2000 on Sources of Law and Hierarchy of Legislation was issued. Article 5 paragraph (1) of the TAP MPR reads, “The MPR has the authority to review laws against the 1945 Constitution and MPR Decrees.” This was the embryo for the Constitutional Court in Indonesia. The authority was granted to the MPR. However, the TAP MPR is no longer in force.
When the 1945 Constitution was amended in 1999-2002, the idea for a Constitutional Court re-emerged, which culminated in its establishment in August 13, 2003. Article 24C paragraph (1) of the 1945 Constitution stipulates that the Court has the authority to adjudicate laws against the 1945 Constitution at the first and last level 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, and is obligated to decide on the House’s opinion on an alleged violation of law committed by the president and/or vice president. Thus, the Court became the only guardian and final interpreter of the Constitution.
Justice Enny said that the Court has an additional authority to rule on regional head election (pilkada) disputes according to Article 157 paragraph (3) of Law No. 10 of 2016 on the Election of Governors, Regents, and Mayors until a special body is established.
She added that previously, based on Article 50 of the Constitutional Court Law, only laws promulgated after the amendment to the 1945 Constitution could be petitioned in the Constitutional Court. However, the Court through Decision No. 66/PUU-II/2004 ruled the provision unconstitutional. The Court made a breakthrough by declaring that all laws can be petitioned in the Constitutional Court as long as they are still in force. The next breakthrough is its authority to review government regulations in lieu of laws (perppu) due to compelling crisis situations.
Judicial Review
Justice Enny also explained that laws can be reviewed materially and/or formally. Material judicial review concerns the content of laws that is deemed unconstitutional, while formal judicial review concerns lawmaking procedure and matters outside of material judicial review.
She added that individual citizens, customary law communities, private and public legal entities, as well as state institutions can file a petition to the Constitutional Court. The petitioners and/or respondent can be assisted or represented by legal counsels, while private and public legal entities can be assisted or appoint legal counsels. These counsels do not have to be advocates but must be familiar with the procedural law in the Constitutional Court. This is expected to provide more access to justice to those who cannot afford advocates.
She also explained the format of a judicial review petition: the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the background of the petition, the posita, and the petitum. The petitioner is eligible to file a petition if they have specific, actual, or potential constitutional loss due to the enactment of the norm. In addition, there must be a causal relationship between the perceived loss of constitutional rights and the enactment of the norm.
She also explained that the proceedings begin with a preliminary examination hearing that the petitioner and/or legal counsel attend, presided over by a panel of three constitutional justices who are obligated to provide advice to improve the petition. It is followed by a petition revision hearing with the panel, followed by evidentiary hearings, where the justices hear the testimonies of the experts, the Government, the House of Representatives (DPR), and other relevant institutions. Then they conclude with a ruling hearing.
At a judicial review hearing, the respondent is not presented because the object is a law. This is different from general election and pilkada dispute hearings where the respondent, Bawaslu (Elections Supervisory Body), and the relevant party appear before the Court.
The Constitutional Court’s decisions are erga omnes, meaning that although they are filed by individuals, they to all citizens and the law in Indonesia. They are also final and binding and there is no other legal measure available to repeal them. However, the Court may rule that a law applies conditionally.
No Respondent
Meanwhile, Constitutional Justice Manahan M. P. Sitompul focused his lecture on the Court’s authority to rule on judicial review and election cases. In a judicial review hearing, he said, “There is a petitioner but no opposing counsel or respondent. The Government and the House only acts as testifiers. Even if the Court doesn’t require their testimonies, the [case] might continue.” He also added that the Court is also authorized to rule on interagency disputes and the dissolution of political parties.
Furthermore, the Court has the authority to decide disputes over legislative and presidential election results. Justice Manahan mentioned the legal bases this authority: Article 22E and Article 6A of the 1945 Constitution; Law No. 24 of 2003 on the Constitutional Court as amended by Law No. 8 of 2011 on the Amendment to Law No. 24 of 2003 on the Constitutional Court; Law No. 7 of 2017 on General Elections; Constitutional Court Regulation No. 2 of 2018 on the Procedure for General Election Results Disputes of Members of the House of Representatives and the Regional Legislative Council; Constitutional Court Regulation No. 3 of 2018 on the Procedure for General Election Results Disputes of Members of the Regional Representatives Council; Constitutional Court Regulation No. 4 of 2018 on Procedure for Presidential Election Results Disputes.
“There is also Constitutional Court Regulations No. 5 of 2018 on the Stages, Activities, and Schedule of the Settlement of General Election Results Cases and No. 6 of 2018 on the Guidelines for Drafting the Petitioner’s Petition, the Respondent’s Response, the Testimonies of Relevant Parties, and the Testimony of Bawaslu,” he added.
Meanwhile, the litigants in election results disputes are political parties and individual candidates of DPR (House of Representatives) and DPRD (Regional Legislative Council) members, local political parties for the recruitment of DPRA (Aceh Legislative Council) and DPRK (Aceh Regency Legislative Council) members, individual candidates of DPRA and DPRK members, and president-vice president candidates. The object of such cases is the KPU’s (General Elections Commission) certification of the national vote acquisition.
Writer : Nano Tresna Arfana
Editor : Lulu Anjarsari
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/28/2021 11:00 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.
Friday, October 22, 2021 | 21:11 WIB 217