Constitutional Justice Suhartoyo giving a presentation at a constitution awareness program for the citizens (PPHKWN) for Teachers at SMA/SMK and MA/MAK, Thursday (11/4/2021). Photo by Humas MK/Wijaya.

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Thursday, November 4, 2021 | 16:44 WIB

JAKARTA, Public Relations—The third day of the constitution awareness program for the citizens (PPHKWN) for Teachers at SMA/SMK (senior high schools/vocational high schools) and MA/MAK (Islamic senior high schools/Islamic vocational high schools) took place on Thursday, November 4, 2021 virtually. Constitutional Justice Suhartoyo and deputy registrar Saiful Anwar gave presentations to some-400 participants.

In the first session, Constitutional Justice Suhartoyo talked about “The Constitutional Court and the Procedural Law for Judicial Review.” Beginning his presentation, he said that the procedural law is highly dependent on the Court’s authorities.

“The Court’s authorities are, first, reviewing laws against the 1945 Constitution; second, deciding on authority disputes between state institutions; third, deciding on the dissolution of political parties; and fourth, deciding on disputes over general election results. It is also [obligated] to decide on the House’s opinion on an alleged crime committed by the president and/or vice president. It also has an additional authority to rule on regional head election dispute cases, which is not derived from the Constitution,” he explained.

Those authorities, excluding that on regional elections, are stipulated in Article 24C paragraphs (1) and (2) of the 1945 Constitution, Law No. 24 of 2003 on the Constitutional Court, and Law No. 48 of 2009 on Judicial Power.

Also read: Court Holds PPHKWN for SMA/SMK and MA/MAK PPKN Teachers

Different Procedural Law

Justice Suhartoyo said that the procedural law for each of the Court’s authority is different. “When the Court performs judicial review of laws against the Constitution, the procedural law is significantly different from when it performs other authorities,” he said.

He explained that there is no respondent in a judicial review case, only a petitioner. However, in other types of cases, there are both a petitioner and a respondent as there is a dispute of interests.

He then explained all of the Court’s authorities in detail. In a judicial review case, there are two models depending on the object. First, the formal judicial review, which concerns the lawmaking process and matters outside of the material judicial review. Second, the material judicial review, which concerns the substance of the law that is deemed unconstitutional.

He also explained the reason a petition file a petition to the Court: because the petitioner’s constitutional rights are violated by the enactment of a law. The loss is specific, actual, and potential. In addition, there must be a causal relationship between the impaired constitutional rights and the law petitioned for review.

The Court is also authorized to decide on authority disputes between state institutions whose authority is granted by the Constitution, such as the Supreme Court, the MPR (People’s Consultative Assembly), the DPR (House of Representatives), the BPK (Audit Board), and the DPD (Regional Representatives Council). The Court’s authority to dissolve political parties, Justice Suhartoyo said, concern the Government as the petitioner, who can be represented by the Attorney General and/or a minister. Its respondent is the political party, represented by its leadership or legal counsels.

The presidential election, Justice Suhartoyo said, concerns a presidential ticket as the petitioner and the KPU (General Elections Commission) as the respondent. The case also concerns the relevant party and Bawaslu (Elections Supervisory Body). Its object is the KPU’s certification of the results of a national presidential election, which affect the candidate pairs who pass to the runoff election, and the election of a candidate pair as president and vice president.

In relation to the authority to rule on the impeachment of a president and/or vice president who has allegedly committed a crime, the petitioner is the House. It must elaborate the criminal allegation against the president and/or vice president or why they no longer meet the requirements of a president and/or vice president based on the 1945 Constitution.

Filing a Petition

Justice Suhartoyo then explained that the petitioner could be individual citizens, customary law communities, private and public legal entities, and state institutions. The petitioner and/or respondent can be assisted or represented by a legal counsel, while public/private entities can be assisted by or appoint a legal counsel. Legal counsels do not have to be advocates but must be familiar with the procedural law in the Constitutional Court and able to assist the litigants after submitting a letter to the Court. This is to facilitate access to justice for those who cannot afford advocates.

He also explained the format of a judicial review petition: the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. A petition can be filed online or in person.

Next, Justice Suhartoyo explained the proceedings, starting with preliminary examination hearing that the petitioner and/or legal counsel attend, presided over by a panel of three constitutional justices obligated to provide advice to improve the petition. Next is a petition revision hearing with the panel of three justices, followed by evidentiary hearings, where experts, the Government, the House, the MPR, and/or other institutions, and witnesses testify before the Court.

The last stage is the ruling hearing. In a judicial review hearing, there is no respondent because the object is a law, unlike in an election dispute case, where the petitioner, respondent, Bawaslu, and relevant parties testify before the Court.

Justice Suhartoyo added that the Constitutional Court decisions are erga omnes. Although the petition is filed by an individual, the Court decision applies generally and influences the law in Indonesia.

Also read: PPKN Teachers Learn the Constitution and Constitutional Rights

Petition Drafting

Next, deputy registrar Saiful Anwar gave a presentation of “The Drafting of a Judicial Review Petition.” He explained that based on Articles 3 and 7 paragraph (1) of the Constitutional Court Regulation (PMK) of No. 2 of 2021, the litigants are the petitioner, testifier, and relevant party. “They can be represented by a legal counsel with a power attorney and/or assisted by one with a letter [to the Court],” he explained.

He explained that the petitioner is one whose constitutional rights and/or authorities are impaired by the enactment of a law. Individual citizens (and groups thereof 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, and institutions can be petitioners.

In the petition, Saiful added, the petition must elaborate on the loss of their constitutional rights and/or authorities, which the 1945 Constitution granted. This constitutional loss must be specific, actual, or at least 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.

Testifiers

Saiful explained further that the Court may request 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. “Other parties outside of the testifiers are the relevant parties,” he said.

He said the relevant party is the party who is directly/indirectly affected by the merit of the petition. They might be indirectly affected but intend to file the petition because they have concerns over the petition.

Saiful also explained that the petition is filed to the Court in writing. It concerns the judicial review of a law or a perppu against the 1945 Constitution. The petition may concern material or formal judicial review. 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.

“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/legal counsel’s profile, the Court’s authority, the petitioner’s legal standing, the background of the petition, and the petitum,” he stressed.

After the presentations, the participants also practiced drafting a petition with the assistance of deputy registrars. This PPHKWN program have taken place for four days, Tuesday-Friday, November 2-5, 2021 virtually from the Pancasila and Constitution Education Center. The participants listened to presentations on the Constitutional Court and its procedural law.

Writer  : Utami Argawati
Editor  : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/8/2021 08:40 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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