Senior researcher Pan Mohamad Faiz speaking at the constitution awareness program for the Association of Civic Education Lecturers and the Association of Pancasila and Civic Education Lecturers (ADPK), Thursday (10/28/2021). Photo by Humas MK/Hendy.
Thursday, October 28, 2021 | 19:20 WIB
JAKARTA, Public Relations—Deputy Registrar Syukri Asy’ari talked about ‘Drafting Judicial Review Petition of Laws Against the 1945 Constitution’ at the constitution awareness program for the citizens (PPHKWN) for the Association of Civic Education Lecturers and the Association of Pancasila and Civic Education Lecturers (ADPK) virtually on Thursday, October 28, 2021.
“After [you] learned about the procedural law of judicial review, now we will learn the theory and practice of drafting a judicial review petition,” he said.
In a judicial review case, Syukri said, there is only the petitioner, but there is no respondent, while the object is norms of a law. The litigants in such a case are the petitioner(s), the testifiers, and the relevant party. They can be represented by legal counsels based on a power of attorney and/or assisted by those counsels by way of an appointment letter.
The petitioner, Syukri explained, is a party that claims that their constitutional rights and/or authorities are harmed by the enactment of a law. They might be individual citizens and a group of individuals with a common interest, customary law communities that live according to the principles of the Unitary State of the Republic of Indonesia (NKRI), private and public legal entities, as well as state institutions.
The Court may request a testimony and/or minutes of meetings from the MPR (People’s Consultative Assembly), DPR (House of Representatives), DPD (Regional Representatives Council), or the president in relation to the discussions of the law in question. A testimony should at least explain the facts during the discussions of the law/perppu (government regulation in lieu of law) petitioned for review, or their minutes, as well as matters that they deem important or requested by the Court.
The relevant party is the party who has direct interest in and whose rights and/or authorities are directly impacted by the merit of the petition. They might also not be directly affected but have concerns over the petition.
Syukri then explained that the petition can be filed in person or online. The document must consist of one original copy of petition in Indonesian signed by the petitioner/legal counsel, a photocopy of the identity of the petitioner/their legal counsel, a power of attorney, and the 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 (posita), and the petitum.
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History of Judicial Review
Meanwhile, Pan Mohamad Faiz, a senior researcher of the Constitutional Court, explained ‘The Constitutional Court and the Procedural Law for Judicial Review.’ He said that that judicial review started with Marbury v. Madison in the US in 1803, where the Supreme Court first annulled a law created by the US Congress. “In fact, the US Supreme Court at the time was not authorized to revoke laws,” he said.
After that, judicial review spread across the world, including to Austria. Jurist Hans Kelsen developed the idea of a constitutional court, which was then founded in Austria in 1920 as a body separate from its Supreme Court, which, unlike in the US and other countries, could not review laws.
Meanwhile, Indonesia founded the Constitutional Court in 2003. It has four authorities and one obligation. Although considerably new, the Constitutional Court of Indonesia, number 78 in the world, has been leading the constitutional judicial bodies in Asia alongside the Constitutional Court/Council of Korea and Turkey. Indonesia was even appointed to represent Asia’s judicial review bodies in the Venice Commission.
Faiz went on to explain the judicial review models. The first is the decentralized or the American system, where the judicial review is decentralized in the Supreme Court and the courts under it. The US, Canada, and Australia apply this model. The second is the centralized or the European system, where the judicial review is centralized in the Constitutional Court. Austria, Germany, Turkey, and Indonesia are among the countries that implement this model.
Faiz also introduced the participants to important terms that the Court often uses, such as presumption of constitutionality, audi et alteram partem (the right to be heard), ius curia novit (a court cannot refuse to examine, adjudicate, and rule on a case), erga omnes (applies to all), and final and binding. He also revealed that the Court’s principles for its hearings are open to public, swift, simple, free, free proof, and active and passive justices.
After presentations by Syukri Asy’ari and Pan Mohamad Faiz, the participants were divided into groups to draft a petition following the format explained beforehand. They also draft a petition individually.
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The PPHKWN was a collaboration between the Constitutional Court, the Association of Civic Education Lecturers, and the Association of Pancasila and Civic Education Lecturers. The event will be taking place on Tuesday-Friday, October 26-29, 2021.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 11/01/2021 18:27 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.
Thursday, October 28, 2021 | 19:20 WIB 281