Constitutional Justice Suhartoyo at the Constitution Awareness Program for Transformational Teachers Batch I organized by the Constitutional Court and the Ministry of Education, Culture, Research, and Technology, Wednesday (3/16/2022). Photo by Humas MK/Teguh.

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Wednesday, March 16, 2022 | 15:44 WIB

BOGOR, Public Relations—The Constitution Awareness Program for Transformational Teachers Batch I commenced on the third day on Wednesday, March 16, 2022 at the Pancasila and Constitution Education Center in Cisarua, Bogor. The event was the result of collaboration between the Constitutional Court (MK) and the Ministry of Education, Culture, Research, and Technology. On this day, Constitutional Justice Suhartoyo delivered a presentation on “The Constitutional Court’s Procedural Laws.”

Justice Suhartoyo began his presentation by explaining the Court’s authorities derived from Article 24C paragraphs (1) and (2) of the 1945 Constitution and Law No. 24 of 2003 on the Constitutional Court or Law No. 48 of 2009 on Judicial Power. In addition, the Court has the authority to rule on regional election (pilkada) disputes, which is not derived from the Constitution but from Article 157 of Law No. 10 of 2016 on Pilkada, only temporarily until a pilkada-specific judicial body is established.

Justice Suhartoyo added that the Constitutional Court’s procedural laws relate to its four authorities: reviewing laws against the Constitution, deciding on authority disputes between state institutions, deciding on the dissolution of political parties, and deciding on disputes over general election results, in addition to its obligation to decide on the House’s opinion on an alleged violation of law committed by the president and/or vice president according to the Constitution. “Each authority and obligation has a different procedural law. [For example,] in a judicial review [case] there is only petitioner(s), but no respondent,” he explained.

Government Regulations in Lieu of Laws

In its journey, Justice Suhartoyo added, the Constitutional Court declared that Article 50 of Law No. 24 of 2003 unconstitutional based on Decision No. 066/PUU-II/2004 on the judicial review of Law No. 1 of 1987 of the Chamber of Commerce and Industry (Kadin). The article stipulates that laws that can be reviewed by the Court was those promulgated after the amendment to the 1945 Constitution.

He also revealed that the Court is authorized to review government regulations in lieu of laws (perppu) as they lead to new norms that apply equally to laws. Judicial review, he added, could be formal—concerning the lawmaking process and matters outside of the material—ad material—concerning the content of articles, paragraphs, or part of laws that are deemed in conflict with the 1945 Constitution.

He stressed that in the Constitutional Court the term “petition”, not “lawsuit,” is used for the judicial review cases because there is only one litigating party—the petitioner. The president/Government, the DPR (House of Representatives), and other state agencies are not defendants but those who offer testimonies. The Court’s decisions are erga omnes, meaning they apply not only to the petitioners but to all citizens and the law in Indonesia.

Counsels Not Necessarily Advocates

Justice Suhartoyo explained that individual citizens, customary law communities, private and public legal entities, as well as state institutions can file a petition to the Constitutional Court in person or online. The petitioner(s) and/or respondent can be assisted by a legal counsel, while public/private entities can be assisted by a legal counsel or appoint a proxy.

“Legal counsels in the Constitutional Court do not have to be advocates but must be familiar with the procedural law in the Court […] and able to assist the litigants, after submitting a letter to the Court,” he said. 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.

He also said that the petitioners file a petition their constitutional rights are violated due to the enactment of the law(s) petitioned. This constitutional loss must be 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(s).

Petition Drafting

Next in the program was the “Drafting of Judicial Review Petition” by Substitute Registrar Saiful Anwar. He said that after a presentation on the procedural law of judicial review, the teachers would learn to apply the theory into practice by drafting a petition.

He said that in a judicial review case there is only one litigating party—only petitioner(s) but no respondent or defendant—with the object being the norm(s) of law(s). The also said that the petitioners, the testifiers, and the relevant parties may be represented by a legal counsel based on a power of attorney or accompanied by one after requesting it to the Court through a letter.

The petitioners, he said, are those who feel that their constitutional rights and/or authorities are violated due to the enactment of the law(s) petitioned. These petitioners, he added, could be individual citizens (and groups of individual citizens), customary law communities that live according to the principles of the Unitary State of the Republic of Indonesia (NKRI), private and public legal entities, as well as state institutions.

The Court may request a testimony and/or minutes of meetings from the MPR (People’s Consultative Assembly), DPR (House of Representatives), DPD (Regional Representatives Council), or the president in relation to the discussions of the law in question, Saiful revealed. A testimony should at least explain the facts during the discussions of the law/perppu (government regulation in lieu of law) petitioned for review, or their minutes, as well as matters that they deem important or requested by the Court.

The relevant party is the party whose rights and/or authorities are directly impacted by the core of the petition or indirectly but has concerns over the petition.

He then explained the requirements for filing a petition, be it online or in person. The original copy of the petition should be written in Indonesian and signed by the petitioner/their legal counsel. It should consist of at least a photocopy of the identity of the petitioner/their legal counsel’s identity card, a power of attorney, and a statute/bylaw. It must also at least contain the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the background of the petition (posita), and the petitum.        

The presentation was followed up by a petition drafting practice, where the participants were divided into groups to learn the format of the petition and then putting it into practice.

The Constitution Awareness Program for Transformational Teachers Batch I took place for four days, Monday-Thursday, March 14-17, 2022 with 350 participants. Several speakers talked about Pancasila and the Constitution at the event.

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

Translation uploaded on 3/21/2022 08:04 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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