Chief Justice Anwar Usman giving a keynote speech at the inauguration of the smartboard mini courtroom at the University of Jember, Saturday (11/6/2021). Photo by Humas MK/Hendy.

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Saturday, November 6, 2021 | 21:10 WIB

JEMBER, Public Relations—Justice is often only associated with the issue of substance in a norm, especially for countries that adhere to civil law. In fact, criticism is not only conveyed to court decisions but also norms that are considered to contain injustice. Fair court decisions in the scope of any judiciary including the Constitutional Court require arrangements related to procedural law in the law making process, said Chief Justice Anwar Usman after the inauguration of a smartboard mini courtroom at the University of Jember, Saturday, November 6, 2021.

He said that there has been a lot of discussion among experts on the comparison of procedural laws and in the lawmaking process in terms of the legal system and of their implementation. In his book, James Maxeiner says procedural law is influenced by the existing legal system, procedural law affects the legal system, and the existing legal system influences scientific research on procedural law.

Furthermore, he said, the legal method in the third element is meant to go through lawmaking, law finding and law applying. Lawmaking is the stage of formulating norms in the legislature. Law finding is the stage of interpreting norms and precedents. Meanwhile, law applying is the stage of implementing norms in concrete cases.

“David Gerber defines procedural law as a system whose functions are interrelated to uphold the public interest in the settlement of civil disputes. Furthermore, Gerber states that the basic function of procedural law is initiating judicial examinations, obtaining data, forming legal facts, establishing legal facts, obtaining an overview of the background of the case, drawing up laws in solving cases, forming legal decisions, and deciding the results in the form of legal facts as well as further legal actions and remedies,” Justice Anwar explained in his presentation on “The Procedural Law of the Constitutional Court.”

Development of Constitutional Court’s Procedural Law

The Constitutional Court’s procedural law develops through its proceedings and decisions, Justice Anwar said. This has occurred since the early generation of constitutional justices. This development is not the Court’s own wishes, but serves to fill in legal vacuum and protect the citizens’ constitutional rights.

When the Court was founded based on Law No. 24 of 2003 on the Constitutional Court, there was a provision that restrict the laws to petition in the Constitutional Court to only those promulgated after the amendment to the 1945 Constitution (1999-2002). The norm was driven by the legal principle that laws must be prospective, not retroactive.

However, the norm was against the spirit of the founding of the Constitutional Court—protection of the citizens’ constitutional rights against unconstitutional laws. Moreover, there are possibilities that laws promulgated before the amendment to the 1945 Constitution could violate the citizens’ constitutional rights.

“If the norm remained, it would be in the procedural law for judicial review as a formal requirement for the petitioners. Therefore, in 2004, the norm was annulled by the Constitutional Court through Decision No. 066/PUU-II/2004,” Justice Anwar stressed.

An important process in the procedural law for judicial review (PUU) in the Constitutional Court is the petitioner’s legal standing. Although Article 51 of the Constitutional Court Law stipulates who can be petitioners in judicial review cases, the requirements have developed through the Constitutional Court’s decisions. Since 2004, the Court has been developing the requirements as an interpretation of Article 51 of the Constitutional Court Law. There are at least three decisions that set precedents for the decisions that come after in terms of the constitutional requirements for petitioners in judicial review cases: Decisions No. 003/PUU-I/2003, No. 006/PUU-III/2005, and No. 11/PUU-V/2007.

Similarly, although the Constitutional Court Law only stipulates three types of rulings—that the petition is either dismissed, rejected, or granted—are other types were developed—conditionally constitutional and conditionally unconstitutional.

“There are decisions where the Court reject [the petition] in the verdict, but in the considerations [the Court] recommends the legislatures to revise the law. There are many other developments in the procedural law for judicial review in the Constitutional Court decisions, including the latest one, as regulated in [the Constitutional Court Regulation/PMK] No. 2 of 2021,” Justice Anwar explained.

Writer        : Nano Tresna Arfana
Editor        : Nur R.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/11/2021 09:49 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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