Constitutional Justice Manahan M. P. Sitompul speaking at a Special Education for Professional Advocates (PKPA) organized by the West Jakarta branch of Peradi and Bina Nusantara University, Sunday (1/16/2022). Photo by Humas MK/Hendy.

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Sunday, January 16, 2022 | 17:53 WIB

DENPASAR, Public Relations—Constitutional Justice Manahan M. P. Sitompul spoke at the Special Education for Professional Advocates (PKPA) Batch V virtually on Sunday afternoon, January 16, 2022. The program was organized by the West Jakarta branch executive board (DPC) of the Association of Indonesian Advocates (Peradi) and Bina Nusantara University.

Starting his presentation on “Litigating in the Constitutional Court,” Justice Manahan explained the Constitutional Court’s (MK) authorities granted by the 1945 Constitution. “The first authority of the Court is reviewing laws against the Constitution,” he said.

The second authority, he said, is to decide on authority disputes between state institutions whose authorities are regulated in the Constitution. Next, to decide on the dissolution of political parties. In addition, it is also authorized to decide on disputes over general election results.

Meanwhile, the Court’s obligation is to decide on the House’s opinion on an alleged violation of law or disgraceful act committed by the president and/or vice president. “This means impeachment,” he said.

The Court also has another additional authority to rule on regional head election (pilkada) disputes. It is not derived from the Constitution, but from Law No. 10 of 2016 on Pilkada. The law stipulates that until a special body is established to rule on pilkada disputes. All these authorities are in line with Article 24C paragraphs (1) and (2) of the 1945 Constitution as well as Law No. 24 of 2003 on the Constitutional Court and Law No. 48 of 2009 on the Judicial Power.

No Adversary

Justice Manahan added that when the Constitutional Court exercises the judicial review authority, there are no adversaries in the case. That is, there is a petitioner but no respondent or defendant. “There is no adversary,” he said.

It is different from when the Court exercises its other authorities, where there are petitioners and respondent, as well as a conflict of interest. Justice Manahan further explained other authorities of the Court. There are two models of judicial review. First, formal judicial review concerns lawmaking and other matters that outside of material judicial review.

“Second, material judicial review, where the substance of the law that is considered contrary to the 1945 Constitution is reviewed,” he explained.

Justice Manahan also explained the reason why people file a petition to the Constitutional Court. Their constitutional rights, which are granted by the 1945 Constitution, are harmed by a law. The impairment is specific, actual, or potential, which according to logical reasoning is inevitable. In addition, there must be a causal relationship between the perceived loss and the enactment of the norm. If the petition is granted, the constitutional loss would not happen again.

The petitioner could be Indonesian individual or group of citizens, customary law communities, private and public legal entities, as well as state institutions. Justice Manahan also said that the petitioner or respondent can be assisted or represented by legal counsels, who do not have to be advocates but must be familiar with the procedural law in the Constitutional Court and be able to assist the petitioner after submitting a letter to the Court to request it.

He also explained the format of a judicial review petition: the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. It can be filed online or in person.

Court Proceedings

Justice Manahan then talked about the Court’s proceedings, which start with a preliminary examination hearing that the petitioner and/or their counsel attended, which is presided over by a panel of three constitutional justices, who must provide advice to the petitioner. This hearing is followed by another panel hearing to revise the petition.

The next stage, Justice Manahan said, is evidentiary hearings, where experts, the Government, the House of Representatives (DPR), the People’s Consultative Assembly (MPR), or other institutions are summoned to testify. Witnesses also testify at this stage.

The last stage is the ruling hearing. The Constitutional Court’s decisions are erga omnes. Although the petition is filed by individuals, the Court’s decisions apply generally and influences the legal politics in Indonesia. They are also final and binding, where no other legal measure could be taken after. However, in the decisions the Court could allow laws to be conditionally constitutional.

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

Translation uploaded on 01/18/2022 14:37 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.

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