Constitutional Justice Suhartoyo speaking at the Special Education of Professional Advocate Batch III by IBLAM Higher School of Law and the West Jakarta branch of Peradi, Sunday (6/5/2021). Photo by Humas MK/Nur.
Monday, June 6, 2022 | 08:57 WIB
JAKARTA, Public Relations—Constitutional Justice Suhartoyo spoke at the Special Education of Professional Advocate (PKPA) Batch V organized by the West Java branch executive board (DPC) of the Association of Indonesian Advocates (Peradi) in collaboration with IBLAM Higher School of Law (STIH) on Sunday, June 5, 2022 virtually. In his presentation, he explained the Constitutional Court’s (MK) four authorities and one obligation. The Court’s main authority is reviewing laws against the Constitution.
“The judicial review of law is voluntary, meaning that there is a petitioner but no respondent. Meanwhile, the Government and the House of Representatives (DPR) act as testifiers,” he said.
The Court also decides on constitutional disputes between state institutions whose authority is granted by the Constitution. The state institutions in question are, for example, the Supreme Court (MA), the People’s Consultative Assembly (MPR), the House of Representatives (DPR), the Audit Board (BPK), and the Regional Representatives Council (DPD).
The Court also decides the dissolution of political parties. The petitioner is the Government, which can be represented by the Attorney General and/or a minister assigned by the president to do so. Meanwhile, the respondent is a political party represented by its leader and can be represented by a legal counsel.
The next authority the Court has is deciding on disputes over the results of the presidential election. Justice Suhartoyo explained that the litigants in such a case is the presidential ticket as the petitioner and the KPU (General Elections Commission) as the respondent. There are also relevant parties and Bawaslu (Elections Supervisory Body). Meanwhile, the object of the petition is the stipulation of the results of the presidential election conducted nationally by the KPU, which affects the certification of the candidate pairs who entered the second round of the presidential election, as well as the election of the president and vice president.
The Court also has the obligation to decide on the House’s opinion of alleged violation committed by the president and/or vice president. The House is obliged to explain clearly the act the president and/or vice president allegedly committed, or if the president and/or vice president no longer meets the requirements as president and/or vice president based on the 1945 Constitution.
Judicial Review Petition
Justice Suhartoyo further explained that individual citizens, customary law communities, private and public legal entities, as well as state institutions can file a petition to the Court. The petitioner and/or the respondent can be assisted or represented by legal counsels, while private and public legal entities can be assisted by legal counsels, while private and public legal entities can be assisted or appoint a proxy.
“Legal counsels do not have to be advocates. This is to facilitate access to justice for those who cannot afford advocates, providing [the counsels] are familiar with the Court’s procedural law. They may provide assistance to the petitioner after submitting a letter to the Court,” he explained. He also said that a judicial review petition consists of the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. The petition can be filed online or directly/onsite.
Formal and Material Review
Justice Suhartoyo also explained two models of judicial review based on the object. First, formal review concerns the lawmaking procedure and other matters outside of the material review. Second, material review is concerns the substance of the law that is considered unconstitutional.
He also explained the reason for a petitioner to file a petition to the Court: because their constitutional rights are impaired by the enactment of the law. The constitutional impairment should be specific, actual, and potential. In addition, there must be a causal relationship between the impairment of the constitutional rights guaranteed by the Constitution and the enactment of the law.
Proceedings
Justice Suhartoyo continued by explaining the judicial review proceedings, which starts with a preliminary hearing attended by the petitioner and/or their proxies and presided over by a panel consisting of three constitutional justices, who are obliged to provide advice and input to the petitioner. It is followed by a petition revision hearing presided over by a panel of justices. If the case continues, it will advance to the plenary examination hearings, where the justices hear the testimonies of the experts, the Government, the House, the MPR, and witnesses. Then the case concludes with a ruling hearing.
In a judicial review hearing, there is no respondent because the object is a law. It is different from a dispute over the results of the general and regional election, where the petitioners, respondent, Bawaslu, and relevant parties appear before the Court.
The last stage is the ruling hearing. The Constitutional Court’s decision in a judicial review case, Justice Suhartoyo added, is erga omnes. Although the petition is filed by an individual or individuals, the validity of the decision is general and affects the law in Indonesia. The Court’s decision is also final and binding, meaning that there will be no further legal action available after it. In addition, it can be enforced on a conditional basis.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/7/2021 12:19 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
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