Constitutional Justice Arief Hidayat, Secretary-General M. Guntur Hamzah, and senior researcher Pan Mohamad Faiz speaking before participants of Moot Court, Wednesday (11/10/2021). Photo by Humas MK/Panji.

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Thursday, November 11, 2021 | 08:01 WIB

JAKARTA, Public Relations—Constitutional Justice Arief Hidayat, Secretary-General M. Guntur Hamzah, and senior researcher Pan Mohamad Faiz delivered presentations for the participants of Moot Court on Wednesday, November 10, 2021. The event was part of the Moot Court Competition that the Constitutional Court (MK) organized with Tarumanegara University.

Justice Arief said in his presentation that in the New Order, the 1945 Constitution was sacred and no amendment was likely. However, there were demands to its amendment in the Reform era, with the intention of preventing an authoritarian government.

He the fourth paragraph of the 1945 Constitution emphasizes state goals, which realization must be based on the five precepts of Pancasila. Pancasila, he believes, inspires the articles of the 1945 Constitution. Therefore, he said, Indonesia is a constitutional democracy based on the belief of One Supreme God. The first precept of Pancasila does not recognize separation between the state and the people’s faith in God Almighty. As such, Indonesia is not a secular constitutional democracy.

He also explained that the Indonesian law, which the people must learn, comes from Pancasila and that the Constitution is the basic law that the state administration lives by. “So, we have to understand that the Constitution is the basic law,” he said.

He also stressed that what sets Indonesia apart from other states is its ideology, Pancasila. The 1945 Constitution regulates all aspects of life in society, nation, and state. Its scope is different from that of constitutions of liberal, individualistic, or communist countries.

Modern Judiciary

Secretary-General M. Guntur Hamzah gave a presentation on “ICT-Based Judicial System in the Constitutional Court.” He said the judiciary assumes a position between the executive and the legislative. Therefore, it must be transparent. He echoed an idea by English philosopher Jeremy Bentham, who said, “Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government.” “As long as there is no transparency, there will be no justice. Transparency is the spirit of justice. It is a tool to fight back and guard against dishonesty. It allows the ‘judge’ to be judged while he adjudicating,” Guntur said.

“Public trust will emerge if the [court proceedings] are carried out openly,” he added.

Guntur stressed the importance of technology, especially in information and communications (ICT), in judiciary, which will help the judiciary be transparent and advance according to the times. However, he said ICT is hard to implement. There are pros and cons to using ICT in the judiciary. The pros include effectiveness.

“The implementation of such technology is inevitable,” he emphasized.

The modern judiciary is based on ICT; has progressive mindset and culture; is committed to integrity, cleanliness, and trustworthiness (ICT). Such judiciary will lead to effective cost and time management; minimize corruption, collusion, and nepotism (KKN); realize efficient, effective, transparent, and accountable work process; and improve the quality of public services.

Judicial Review Models

Senior researcher Pan Mohamad Faiz talked about the two models of judicial review: the decentralized system (the US model) and the centralized system (the European or Kelsenian model).

Judicial review in the US is decentralized in the Supreme Court and the courts thereunder. The US, Canada, Australia, the Philippines, and India adopt this model. Meanwhile, in the European model, it is centralized in the Constitutional Court, such as in Germany, Austia, Turkey, South Korea, South Africa, Thailand, and Indonesia.

He then explained that the judicial review authority in the latter model is exercised by three types of institutions: the Constitutional Court/Tribunal, the Constitutional Council, and the Constitutional Court/Council.

“The Constitutional Court/Tribunal uses the judicial review mechanism where the object is only laws that have been ratified. Only when laws have ratified will they be promulgated and become the object [of a case] in the Constitutional Court,” he explained.

Meanwhile, the Constitutional Council performs judicial pre-review and the Constitutional Court/Council has a hybrid review authority.

Writer        : Utami Argawati
Editor        : Nur R.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/12/2021 19:20 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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