Justice Suhartoyo: Judicial Review Is Voluntary

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Constitutional Justice Suhartoyo speaking at the Special Education for Professional Advocates (PKPA) organized by the Constitutional Court, Peradi, and the Military Law School (STHM), Saturday (11/27/2021). Photo by Humas MK/Hendy.

Saturday, November 27, 2021 | 14:35 WIB

JAKARTA, Public Relations—The judicial review of laws is voluntary, meaning that there is a petitioner, but not a respondent. Meanwhile, the government and the House of Representatives (DPR) act as testifiers, answering only to the constitutional justices, said Constitutional Justice Suhartoyo at the Special Education for Professional Advocates (PKPA) virtually on Saturday, November 27, 2021. The program was organized jointly by the Constitutional Court (MK), the Association of Indonesian Advocates (Peradi), and the Military Law School (STHM).

He added that individual citizens, customary law communities, private and public legal entities, and state institutions can file a petition to the Court. The petitioner and/or respondent may be assisted or represented by legal counsels, while the private and public legal entities may be assisted by or appoint legal counsels.

“The legal counsels do not have to be advocates. This is to provide the people who can’t afford advocates better access to justice. However, they must be familiar with the procedural law in the Constitutional Court. In addition, counsels who understand the Court’s procedural law can also help the petitioner by sending a request letter to the Court,” Justice Suhartoyo said. He also explained the petition’s format, which consists of the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. The petition may be filed in person or online.

Court Proceedings

Constitutional Justice Suhartoyo said the proceedings start with preliminary examination hearing that the Petitioner or their counsel attends, presided over by a panel of three justice, who ought to provide advice to the petitioner. It is followed by a petition revision hearing presided over by the panel of justices.

Next, at the plenary examination hearings, the justices hear the testimonies of the experts, the Government, the House of Representatives (DPR), the People’s Consultative Assembly (MPR), or other parties. A judicial review hearing does not have a respondent as the object is the judicial review of a law. This is different from the general elections or regional election (pilkada) dispute cases, in which the Court summons the petitioner, the respondent, Bawaslu (Elections Supervisory Body), and the relevant parties.

The Constitutional Court decisions are erga omnes, meaning they apply not only to the petitioners but to all citizens and the law in Indonesia. They are also final and legally binding, meaning that no other legal action can be taken afterward. The Court may rule a law conditionally constitutional.

Formal and Material Judicial Review

Constitutional Justice Suhartoyo moved on to detailing the Court’s authorities. He said there are two judicial review models based on the object. First, formal judicial review concerns lawmaking procedures and things excluded therefrom. Second, material judicial review concerns the content of laws that are deemed in conflict with the 1945 Constitution.

He also explained that petitioners petition laws to the Court because their constitutional rights are violated by the enactment of a law. The impairment must be specific, actual, and potential. There must be a causal relationship between the impairment of the Constitution-guaranteed rights and the enactment of the law.

The Court is authorized to rule interagency disputes occurring between state institutions whose authorities are granted by the 1945 Constitution, such as the Supreme Court, the MPR, the House, the BPK (Audit Board), and the DPD (Regional Representatives Council). The Court is also authorized to decide on the dissolution of political parties. The petitioner would be the Government, represented by the Attorney General and/or Ministry, following the president’s instruction. The respondent would be a political party, represented by its leadership or legal counsel.

The Court is also authorized to rule on disputes over presidential elections. Justice Suhartoyo explained that such a case involves a presidential ticket as the petitioner and the KPU (General Elections Commission) as the respondent, Bawaslu, and relevant parties. The object the national certification of the election results by the KPU that affects the determination of the candidate pairs that move on to the second round of the election and the election of a candidate pair.

The Court is also obligated to decide on the House’s opinion on an alleged violation of law committed by the president and/or vice president. The petitioner would be the House, who must explain clearly in the petition their allegation of the president and/or vice president’s offense that makes them ineligible to be president and/or vice president based on the 1945 Constitution.

Writer        : Nano Tresna Arfana
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 12/6/2021 16:37 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.