Deputy Chief Justice Aswanto talks at a Special Education of Professional Advocate (PKPA) organized by Sawerigading University of Makassar, Sunday (12/5/2021). Photo by Humas MK/Bayu.

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Sunday, December 5, 2021 | 22:02 WIB

JAKARTA, Public Relations—One of the considerations to establish the Constitutional Court (MK) was to correct legal products that the government made alongside the House of Representatives (DPR), said Deputy Chief Justice Aswanto when speaking at a Special Education of Professional Advocate (PKPA) on “Litigating in the Constitutional Court” organized by Law Faculty of Sawerigading University of Makassar virtually on Sunday, December 5, 2021.

“Another consideration was who was authorized to dissolve political parties. That is a function of the Constitutional Court. Even more, the most strategic function that the Court has is protecting the citizens’ constitutional rights as referred to in the Constitution,” he explained.

Constitutional Court’s Functions

Justice Aswanto added that the Constitutional Court is also the guardian of the Constitution, human rights, and democracy. It also serves to be the final interpreter of the Constitution.

Established in 2003 as part of the demand of the Reformation, the Constitutional Court is often said to be the fruit of the Reform movement. Such institutions also include the Judicial Commission (KY) and the Corruption Eradication Commission (KPK).

Legal Basis of Constitutional Court

Justice Aswanto explained that Before the amendment, Article 24 of the 1945 Constitution used to read, “(1) Judicial power shall be made by a Supreme Court and by other judicial bodies pursuant to legislation. (2) The composition and powers of these judicial bodies shall be regulated by law.”

After amendment, the article now reads, “(1) Judicial power shall constitute an independent power to hold a judicature for law reinforcement and justice. (2) Judicial power shall be made by a Supreme Court and judicial bodies thereunder within a general judicature, religious court, military court, state administration court, and by a Constitutional Court.”

“This is the legal basis for the establishment of the Constitutional Court. So, in our legal politics, initially judicial power was exercised by only one institution—the Supreme Court and the judicial bodies under it. However, after the amendment to the 1945 Constitution, emerged another institution with the authority to enforce the law,” Justice Aswanto explained.

Constitutional Court’s Authorities and Obligation

Based on the 1945 Constitution, the Constitutional Court Law, and the Judicial Law, the Constitutional Court has four authorities and one obligation. Justice Aswanto went on to explain them one by one.

“First, the Court reviews laws against the Constitution—the articles, paragraphs, etc. of the norm of a law. There are many laws whose substance, if we look closely, disregards the citizens’ constitutional rights. That is why the Constitutional Court was needed. The Court can make corrections when the citizens’ constitutional rights are disregarded,” he said.

The second authority is deciding on authority disputes between state institutions, whose duties and authorities can be attributed to or are enshrined in the 1945 Constitution. On the other hand, many institutions have duties and authorities that cannot be attributed to the Constitution, for example the KPK.

The next authority is deciding on the dissolution of political parties whose ideologies are not in line with Pancasila and the 1945 Constitution. The last is deciding on disputes over the results of presidential and legislative elections. Election contestants who felt disadvantaged by the KPU’s decision on the election results may file a petition to the Constitutional Court.

Meanwhile, the Court is also obligated to decide on the House’s opinion on an alleged violation of law or obscene acts committed by the president and/or vice president.

Article 50 of Law No. 24 of 2003 stipulated that the laws that the Constitutional Court could review were those promulgated after the amendments to the 1945 Constitution. However, the law was then declared unconstitutional in Decision No. 066/PUU-II/2004 regarding the judicial review of Law No. 1 of 1987 on the Indonesian Chamber of Commerce and Industry (Kadin). Consequently, the Court is now authorized to review all laws. In addition, based on Decision No. 138/PUU-VII/2009, the Court is authorized to review government regulations in lieu of laws (perppu), as those regulations create new norms that have the same force as laws.

Petition Format

Those who can file a judicial review petition, Justice Aswanto explained, are individual citizens, customary law communities, private and public legal entities, as well as state institutions. The petitioner and/or respondent can be assisted or represented by legal counsels while private or public legal entities may be assisted by legal counsels or appoint them. These counsels who do not have to be advocates, for example public prosecutors.

A judicial review petition consists of the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. The petitioner files a petition because their constitutional rights have been harmed by the enactment of a law. This constitutional loss must be specific, actual, and potential. In addition, there must be a causal relationship between the perceived loss and the enactment of the norm.

The Court is also known to have granted legal standing to NGOs that have concerns over certain issues in relation to the enactment of certain laws so that they can file a judicial review petition. Taxpayers also have legal standing to do so if their tax payment is related to the law in question, following the Court’s Decision No. 003/PUU-I/2003 on the judicial review of the Law on Government Securities.

Constitutional Court Decisions

The Court, Justice Aswanto explained, adjudicates at the first and final levels with a final decision, which must be abide by everyone. A decision obtains permanent legal force since it is pronounced at a plenary hearing that is open to public. The Court’s decisions are erga omnes, meaning they apply to all citizens and the law in Indonesia. Any norm that the Court repeal is no longer legally binding although the same norm is regulated in another law that has not been petitioned to the Court.

The Court can dismiss (due to formal defects), reject, or grant a part of or an entire petition. It can also rule laws conditionally constitutional or conditionally unconstitutional.

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

Translation uploaded on 12/21/2021 11:47 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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