Constitutional Justice Suhartoyo speaking at the Special Education of Professional Advocate organized by the Law Faculty of the Christian University of Indonesia and the East Jakarta branch executive board of Peradi, Friday (4/1/2022). Photo by Humas MK/Ifa.

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Saturday, April 2, 2022 | 10:09 WIB

JAKARTA, Public Relations—Constitutional Justice Suhartoyo spoke at a collaborative Special Education of Professional Advocate (PKPA) Batch XVI between the Law Faculty of the Christian University of Indonesia (UKI) and the East Jakarta branch executive board (DPC) of the Association of Indonesian Advocates (Peradi) on Friday afternoon, April 1, 2022 virtually.

He started his presentation on “Litigating in the Constitutional Court” by explaining procedural law as a set of rules or procedure in legal proceedings. Thus, the procedural law of the Constitutional Court (MK) is the rules that regulates the procedure for filing a petition to the Constitutional Court as well as the procedure for its proceedings. 

Different Characteristics

The Constitutional Court’s procedural law, Justice Suhartoyo said, is inseparable from its authorities and obligation. Its main, distinctive authority is reviewing laws against the Constitution. It is characteristic of the Court, where there is a petitioner but no respondent, because what is being reviewed is norms of laws.

“Unlike the other authorities of the Constitutional Court, where there are petitioners and respondents,” he said.

In addition, the Court has the authority to decide on disputes over the constitutional authority of state institutions, the dissolution of political parties, and disputes over general election results. Meanwhile, its obligation is deciding on the opinion of the DPR (House) regarding allegation that the president and/or vice president have committed a criminal offense. In addition, the Court has an additional authority to adjudicate disputes over the results of regional head elections, which is not derived from the Constitution.

The four authorities and one obligation of the Constitutional Court, Justice Suhartoyo said, are the constitutional mandate of Article 24C paragraphs (1) and (2) of the 1945 Constitution, Law No. 24 of 2003 on the Constitutional Court, and Law No. 48 of 2009 on Judicial Power. However, it does not include the Court’s additional authority, which is based on Law No. 10 of 2016 on the Regional Head Election (Pilkada). 

Two Judicial Review Models

Justice Suhartoyo further explained two judicial review models. First, formal judicial review, which is related to the lawmaking process and other matters that do not include the material judicial review. Second, the material judicial review relating to the substance of the law that is considered unconstitutional.

He also revealed a number of reasons for a petitioner to petition a law to the Court: among others, the petitioner’s constitutional rights have been impaired by the enactment of the law. The constitutional impairment is specific, actual, and/or potential. There must be a causal relationship between the loss of the constitutional rights guaranteed by the Constitution and the enactment of the law.

Justice Suhartoyo further said that individual citizens, customary law communities, public or private legal entities, and state institutions can be petitioners. He also explained that the petitioner and/or respondent can be accompanied or represented by a legal counsel, while a public or private legal entity can be accompanied by a counsel or appoint a proxy.

Counsels in the Constitutional Court’s hearings do not have to be advocates. This is to provide convenient access to justice for people who cannot afford to pay for an advocate. However, the counsel must be well-versed in the Court’s procedural law. In addition, the Court allows for assistants who understand its procedural law to help the petitioner after requesting the Court to be allowed to do so.

A judicial review petition, he added, consists of the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. A petition to the Constitutional Court can be filed offline or online.

Next, Justice Suhartoyo explained the proceedings, which start with a preliminary hearing where the petitioner and/or their proxy appeared before a panel of three constitutional justices, who are obligated to provide advice and inputs to the petitioner. It is followed by a petition revision hearing, presided over by a panel of three constitutional justices. The next stage is evidentiary hearings to bring in experts, the Government, the House (DPR), the MPR (People’s Consultative Assembly), or other institutions as well as witnesses to provide testimony.

The final stage is the ruling hearing. The Constitutional Court’s decisions, Justice Suhartoyo said, are erga omnes in that although the petition is filed by an individual or individuals, the decision is general and affects the law in Indonesia. The Court’s decisions are also final and binding, meaning that there will be no further legal action available against them. In addition, they can be enforced on a conditional basis. 

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

Translation uploaded on 4/18/2022 10:19 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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