Chief Justice Anwar Usman speaking at the socialization of the settlement of regional head election disputes, alongside Belitung Regent Sahani Saleh and Vice Regent Isyak Meirobie, Friday (4/22/2022). Photo by Humas MK/Bayu.

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Saturday, April 23, 2022 | 11:53 WIB

JAKARTA, Public Relations—Chief Justice of the Constitutional Court Anwar Usman spoke at the socialization of the settlement of regional head election disputes, organized by the Belitung Regency administration on Friday evening, April 22, 2022. He delivered a presentation on “The Constitutional Court’s Authorities and Obligation Pursuant to the 1945 Constitution and the Constitutional Court Procedural Law.”

He started his presentation by explaining that the Court had been established based on the mandate of the 1945 Constitution. Article 24 of the 1945 Constitution pre-amendment reads, “Judicial power shall be made by a Supreme Court and by other judicial bodies pursuant to legislation.”

However, after the four-stage amendment of the 1945 Constitution in 1999-2002, Article 24 paragraph (2) of the 1945 Constitution now reads, “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.”

Constitutional Court’s Authorities and Obligation

Justice Anwar then talked about the Court’s authorities pursuant to Article 24C paragraph (1) of the 1945 Constitution and Article 10 paragraphs (1) and (2) of Law No. 24 of 2003 as amended by Law No. 8 of 2011 on the Constitutional Court.

“The Constitutional Court is authorized to adjudicate laws against the 1945 Constitution at the first and last level with decisions that are final, to decide on authority disputes between state institutions whose authorities are granted by the Constitution. In addition, the Court decides on the dissolution of political parties and decides on disputes over general election results,” he explained.

Meanwhile, the Court’s obligation, as referred to Article 24C paragraph (2) of the 1945 Constitution, is to decide on the House’s opinion on an alleged violation of law committed by the president and/or vice president. The Court also has another additional authority, according to Article 157 paragraph (3) of Law No. 10 of 2016, to rule on regional head election disputes (pilkada) until a special body is established.

Justice Anwar also added that the Court has the additional authority to rule on the judicial review of government regulations in lieu of laws (perppu) and the pilkada until the establishment of a special court. In the legal consideration of the Decision No. 97/PUU-XI/2013, the Court states that “In order to avoid doubt, legal uncertainty, and vacuum of institution authorized to settle disputes over regional head election as there has been no law regulating this matter, the settlement of such disputes remains the authority of the Constitutional Court.”

Procedural Law for Judicial Review

Justice Anwar also talked about the procedural law for judicial review. He started by explaining the objects for judicial review: laws and the government regulations in lieu of laws (perppu). They can be reviewed formally, which concerns the lawmaking procedure, and materially, which concerns the material.

The petitioner could be Indonesian individual (or group of citizens with a common interest), customary law communities that live according to the principles of the Unitary State of the Republic of Indonesia, private and public legal entities, as well as state institutions.

A judicial review petition can be filed if the petitioner suffers constitutional impairment because their constitutional rights and/or authorities granted by the 1945 Constitution are impaired by the enactment of the law petitioned for review. The constitutional impairment must be specific, actual, or at least 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 Court uses the term “petition,” not “lawsuit” as in civil cases, because the cases do not concern contented dispute of interest. The president/Government, the DPR (House of Representatives), and the DPD (Regional Representatives Council) are not defendants but those who offer testimonies. A judicial review petition consists of the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the background of the petition, and the petitum.

The Constitutional Court’s decisions are erga omnes, meaning although a case is petitioned by an individual, the decision binds all citizens and the law in Indonesia. The Court can dismiss, reject, or grant a petition. Its decisions have permanent legal force since they are pronounced at a plenary hearing that is open to the public.

General Aspects of Procedural Law

Justice Anwar then talked about the general aspects of the Court’s procedural law, which covers the filing of the petition, evidence, hearings, and decision. The petition should be submitted in writing in Indonesian, signed by the petitioner or their proxy, is made into 12 copies, be accompanied by evidence, submitted directly to the Registrar’s Office or online. The submission is completely free.

The proceedings start with a panel preliminary examination hearing, presided over by three justices (one chair and two members). If the case continues, it will advance to the plenary examination hearings, presided over by all the nine or at least seven justices. The hearings are open for public. The petitioners can request for a remote hearing pursuant to the Constitutional Court Regulation No. 18 of 2009. During the COVID-19 pandemic, many petitions have been submitted to the Court online, including those on regional election disputes.

Justice Anwar said the main form of evidence is letters or texts, followed by witness statements, and statements of the relevant parties, instructions and other evidence in the form of information that is spoken, sent, received, or stored electronically with optical or similar devices.

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

Translation uploaded on 4/25/2022 11:45 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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