Constitutional Justice Enny Nurbaningsih speaking at the technical assistance program on procedural law of judicial review for the Indonesian Legislative Drafters Association (IP3I) virtually, Wednesday (11/10/2021). Photo by Humas MK/Budiman.

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Thursday, November 11, 2021 | 08:12 WIB

JAKARTA, Public Relations—The second day of the technical assistance program (bimtek) on procedural law of judicial review by the Constitutional Court (MK) for the Indonesian Legislative Drafters Association (IP3I) commenced virtually on Wednesday, November 12, 2021. Constitutional Justice Enny Nurbaningsih talked about “The Constitutional Court and the Characteristics of Its Procedural Law.”

“Judicial review indicates there are issues in the material or substance of the law or the formal aspect or its lawmaking process,” she said.

Those two aspects are related to the legal drafters’ main duty. Their work not only concerns technicality. They must also be able to relate the matter and the technical, resulting in good legal products.

“When drafting a legislative product, [legal drafters] must consider the objective,” she added.

She then explained that the development of the national law is directed to a good national legal system based on Pancasila and the 1945 Constitution, which includes: development of legal materials, legal structure including legal apparatus, legal facilities and infrastructure, the realization of society with high legal awareness and legal culture in realizing a law-based state, and the creation of a just and democratic society.

“There is no such thing as instant development of national law. There must be methods and strategies to developing national law,” she said.

Justice Enny further explained the judicial review in the Constitutional Court: materially and formally. Based on Article 2 paragraph (4) of the Constitutional Court Regulation (PMK) No. 2 of 2021, material judicial review concerns the content of articles, paragraphs, and/or part of laws or government regulation in lieu of law (perppu) that are deemed in conflict with the 1945 Constitution. Meanwhile, Article 2 paragraph (3) defines formal judicial review as that which concerns the allegedly flawed lawmaking process of laws or perppus.

Explaining the stages of judicial review in the Constitutional Court, she said the proceedings start with a preliminary hearing, followed by a petition revision hearing. They conclude with a ruling hearing. After the preliminary hearing, the petitioner is given 14 workdays to revise the petition following the justice panel’s advice or recommendations, which are not binding. Should the petitioner refuse to revise their petition, the original petition will be used in the case.

Also read: Chief Justice Opens Bimtek for Legislative Drafters Association 

Four Authorities, One Obligation

The next panelist, Constitutional Justice Suhartoyo gave a presentation on “The Procedural Law for Judicial Review in the Constitutional Court.” He began by explaining the Court’s four authorities and one obligation stipulated in the Constitution: reviewing laws against the Constitution, deciding on authority disputes between state institutions whose authority is granted by the Constitution, deciding on the dissolution of political parties, and deciding on disputes over general election results. The Court is also obligated to decide on the House’s opinion on an alleged offense committed by the president and/or vice president.

“There is also an additional authority not derived from the Constitution but from a law: deciding on regional head election (pilkada) disputes. It is temporary only until a special judicial body is established to do so,” he said.

He also explained the reason why petitioners file a petition to the Court: they feel that their constitutional rights are harmed by the enactment of a law, where their loss is specific, actual, and potential. There must also be a causal relationship between the impairment and the law petitioned for review. The petitioner could be Indonesian individual or group of citizens, customary law communities, private and public legal entities, as well as state institutions. 

Constitutional Interpretation

The next panelist, Head of the Public Relations and National Affairs Department Fajar Laksono Suroso, talked about “Constitutional Interpretation” in relation to the Court’s daily task of elaborating constitutional arguments in interpreting the Constitution.

Constitutional interpretation concerns interpretation and the Constitution. Interpretation is a method in finding the law (rechtsvinding) based on the Constitution. The Constitution is interpreted to understand its provisions. Similarly, understanding the law is done by interpreting it and vice versa. The law can only be understood through interpretation and such interpretation will help facilitate the understanding of law.

He added that all constitutional courts are the sole interpreter of the constitution, the most active and final constitutional interpreter in case of any dispute.

“As legal drafters [you] may interpret the Constitution. So can university students, lecturers, DPR (House of Representatives) members, and the president. However, when the Constitutional Court answers through its decisions on judicial review of laws, its interpretation is what applies,” he stressed.

The bimtek was organized by the Constitutional Court in collaboration with IP3I. It took place virtually on Tuesday-Friday, November 9-12, 2021.

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

Translation uploaded on 11/12/2021 19:58 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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