Constitutional Justice Arief Hidayat speaking at a Special Education for Professional Advocates (PKPA) organized by the DPN of Peradi and the Law Faculty of Diponegoro University and IKA FH Undip, Saturday (1/22/2022). Photo by Humas MK/Ilham W.M.
Saturday, January 22, 2022 | 22:01 WIB
JAKARTA, Public Relations—Do not commodify law. Instead, it must be made sacred and implemented for the greater good of Indonesians, said Constitutional Justice Arief Hidayat at a Special Education for Professional Advocates (PKPA) on Saturday afternoon, January 22, 2022. He talked about “Litigating in the Constitutional Court” at the event, which was collaboration by the national executive board (DPN) of the Association of Indonesian Advocates (Peradi) and the Law Faculty of Diponegoro University and the Alumni Association of the Law Faculty of Diponegoro University (IKA FH Undip).
“Therefore, when you practice as advocates, the law should not be commodified. The law should be made a sacred item, implemented for the benefit of Indonesian people. Professor Satjipto said that the law is for humankind, for the benefit of the nation and state,” Justice Arief explained.
He also stressed that Indonesia is not a secular law-based state, but a religious one, as the law is based on faith on the One Supreme God. “Any legal activities must always be based on One Supreme God. The Constitution states that out country is based on Pancasila. The first precept of Pancasila is the One Supreme God, which means that any activities including legal ones are always based on the One Supreme God, religions, faiths, and beliefs of the people that live in Indonesia,” he said.
The synergy of faiths and beliefs of Indonesians, Justice Arief said, are the basis of the state and nation life, including in the field of law. “Therefore, we must realize that legal life is not secular [but] must be based on and accountable to the One Supreme God.
He also explained that the constitutional court was developed by Austrian jurist Hans Kelsen. “There is a structure in law, starting from the top structure, the Constitution, to the lowest structure, the law that implements the Constitution. The Constitution is the basis for the formation of legislation under it. The legal products under it must be consistent, coherent, [and] correspond to the Constitution,” he said.
Supremacy of Law
Next, Justice Arief talked about how the supremacy of law where neither politics nor power reigns supreme in a country, but the law. The highest legal product is the constitution or the supreme law of the land, which serves as the foundation and benchmark in the life of the nation and state.
“Then who is in charge of maintaining legal consistency, coherence, correspondence? Then, an institution called the constitutional court is formed. Some countries have established an independent constitutional court with its own authorities, such as Malaysia with its Federal Court. However, some countries combine the functions of the constitutional court and ordinary courts that enforce law and justice. [Those functions] are carried out by the Supreme Court, common in many common law countries,” he said.
The constitutional court, Justice Arief said, had been proposed during the early days of the independence by Mohammad Yamin, but it was rejected by Soepomo. One of the reasons was because at that time there were not many legal scholars familiar with judicial review. Years after, in the 1998 Reform era, many Indonesian legal experts had studied constitutional law and the constitutional court. Then, when the 1945 Constitution was amended, the idea to form a constitutional court resurfaced. Its existence is regulated in Article 24C paragraph (1) of the 1945 Constitution.
The Constitutional Court has the authorities to review laws against the Constitution, to decide on authority disputes between state institutions whose authorities are granted by the Constitution, to decide on the dissolution of political parties, and to decide on disputes over general election results. It is also obligated to decide on the House’s (DPR) opinion on an alleged violation of law committed by the president and/or vice president. It also has another additional authority to rule on regional head election (pilkada) disputes until a special judicial body is established to take over.
Formal and Material Judicial Review
Justice Arief further explained that laws can be reviewed materially and/or formally. Formal judicial review concerns lawmaking procedures and matters outside of the formal judicial review. Material judicial review concerns the content of laws that are deemed in conflict with the 1945 Constitution.
He also explained that petitioners petition laws when their constitutional rights are violated due to the enactment of the law(s) petitioned. This constitutional loss must be specific, actual, or potential. In addition, there must be a causal relationship between the perceived loss and the enactment of the norm.
He added that individual citizens, customary law communities, private and public legal entities, and state institutions can file a petition to the Constitutional Court. The petitioners and/or respondent can be assisted or represented by legal counsels, while public/private entities can be assisted by or appoint a legal counsel. The counsels do not have to be advocates but must be familiar with the procedural law in the Constitutional Court and able to assist the litigants after submitting a letter to the Court.
Justice Arief then explained that the proceedings start with a preliminary hearing where the petitioner and/or their legal counsel appear before a panel of three constitutional justices, who then give them advise. This hearing is followed by a petition revision hearing with the panel. The next are evidentiary hearings, where the justices hear the testimonies of the experts, the Government, the House, the MPR (People’s Consultative Assembly) or other institutions, and witnesses. The last step is a ruling hearing.
Writer : Nano Tresna Arfana
Editor : Lulu Anjarsari P.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 01/26/2022 09:33 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.
Saturday, January 22, 2022 | 22:01 WIB 223