Head of the Public Relations and National Affairs Department Fajar Laksono Soeroso giving a public lecture for the Law Faculty of Diponegoro University virtually, Wednesday (5/18/2022). Photo by Humas MK/Hendy.

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Wednesday, May 18, 2022 | 23:41 WIB

JAKARTA, Public Relations—The Head of the Constitutional Court’s (MK) Public Relations and National Affairs Department Fajar Laksono Soeroso gave a public lecture on “The Conditional Unconstitutionality of Law No. 2 of 2020 on Job Creation after the Constitutional Court Decision No. 91/PUU-XVIII/2020” for the Law Faculty of Diponegoro University virtually on Wednesday afternoon, May 18, 2022.

“When a Constitutional Court decision is pronounced at a public plenary hearing, normatively, its duty is complete,” he said opening his lecture.

He then talked about the implementation of the Court’s decisions and its role after its ruling. The normative answer to this is that the implementation is no longer under the Court’s purview. The Court’s decisions, he added, must be read hand in hand with the law being reviewed.

“[One] cannot read the decision without the law being reviewed,” he explained. 

Implementation of Constitutional Court Decisions

The implementation of the Constitutional Court decisions, Fajar added, equals that of laws because after the rulings, the decisions are attached to the laws.

“As such, the implementation of the Constitutional Court decisions, I believe, is the same as the implementation of laws. It is actually the jurisdiction of the executive as the implementer of laws,” he said.

The question is: what if the executive or the addressee of the rulings do not intend to implement the decisions? What can the Court do? Normatively, Fajar said, the Court could not do anything as its duty was completed after it made its ruling.

“Actually, normatively, the Court’s duty is completed after passing its ruling. But there is a notion that the Court’s duty from A to Z includes guarding the Constitution. The heaviest duty is not passing a ruling, but contributing to implementing it,” Fajar stressed. 

Practice by Constitutional Court of Kosovo

Fajar also talked about an interesting practice by the Constitutional Court of Kosovo. When a case is lodged to the Constitutional Court of Kosovo and is decided, the Court gives the addressee a deadline to implement the decision, for example within 2 years. There is a mechanism in place should the decision is not implemented 2 years after the decision.

“There is a mechanism in the Constitutional Court of Kosovo, where the petitioner whose case [decision] is not implemented can lodged a report to the Court. The Court will then issue a non-execution decision that issues a judicial order once again to the addressee to implement the decision. It is publicized widely so that the public are aware that a decision has not been implemented,” he said.

Responses to Decisions

Fajar then explained the reasons to various response to the Constitutional Court decision. First, differing interpretations.

“Why can the Constitutional Court decisions lead to various interpretations and responses? The interpretation can lead to reduction and expansion that is asymmetrical to the Court decision. This is what makes the responses vary, be it for or against, agree or disagree, satisfied or dissatisfied,” he said.

Another reason is the cherry picking of the decision in order to benefit the interested party, not a complete understanding. For example, only implementing and quoting a few considerations to the decision on the Job Creation Law that benefits a party or is in line with their interest.

Another reason is partial understanding of the decision, for example only reading the verdict, news headlines, and then making comments in the public space.

“[They] would not understand [the content]. It is dangerous. That is why various responses arise against the Constitutional Court decisions, including on the Job Creation Law,” Fajar said.

He then explained the Court’s modification of its ruling, such as the verdict of conditionally unconstitutional. The Constitutional Court Law clearly stipulates that the Constitutional Court’s ruling only reject, grant, or dismiss a petition. If the petition’s argument is not legally warranted or cannot convince the justices, the petition is rejected. On the other hand, a petition is granted because the justices believe in the petitioner’s arguments and logic. Conversely, a petition is rejected because the petitioner cannot explain their constitutional impairment.

Nuances of Decisions

In its journey, Fajar explained, the constitutional court acquired nuances to its decisions. For example, in South Korea, Hungary, Germany, Italy, and Russia there are decisions that are not black-and-white, such as interpretative decisions. The background to this, he added, is the history and relation between the constitutional court and the legislatures.

“Since the beginning, Hans Kelsen said that the constitutional court is brought into the Austrian administration as the guardian of the Constitution despite its emergence not being favored politically because it has the authority to repeal a law, which is under the parliament’s authority,” he explained.

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

Translation uploaded on 5/19/2022 12:49 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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