Constitutional Court researcher Nallom Kurniawan speaking at PPHKWN program for Pemuda Muhammadiyah board and members virtually, Wednesday (6/8/2021). Photo by Humas MK/Teguh.

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Wednesday, June 8, 2022 | 15:42 WIB

JAKARTA, Public Relations—The constitution awareness program for citizens (PPHKWN) for the board and members of Pemuda Muhammadiyah commenced on the second day virtually on Wednesday, June 8, 2022 at the Pancasila and Constitution Education Center, Cisarua, Bogor. Constitutional Court researcher Nallom Kurniawan and substitute registrar Syukri Asy’ari delivered their presentations.

Nallom delivered a presentation on “The Constitutional Court and Procedural Law for Judicial Review of Laws against the 1945 Constitution of the Republic of Indonesia.” At the beginning, he described the phenomenal case of Marbury v. Madison in the United States in 1803.

The case, he said, was the time in history that a law formed by the U.S. Congress was overturned by the Supreme Court. Even though the Supreme Court at that time did not have the authority to repeal laws.

“The model of judicial review in the U.S. Supreme Court is not the same as that in the Constitutional Court in Indonesia. Why? Because the judicial review authority rests with one judicial institution,” he said.

Also read: Deputy Chief Justice Opens PPHKWN for Pemuda Muhammadiyah 

First Constitutional Court

From Marbury v. Madison, the idea of judicial review spread to parts of the world, including Austria. In 1919, a legal expert named Hans Kelsen proposed the idea that an institution should be established to oversee the Constitution, a constitutional court. Then the Constitutional Court of Austria was formed in 1920 as a separate judicial institution outside the Supreme Court.

“This is the first constitutional court established in the world. The Constitutional Court of Austria is called the first constitutional court in the world. Hearings by the Austrian Constitutional Court are not open to the public. Meanwhile, the hearings by the Constitutional Court of Indonesia are open to the public,” Nallom explained.

Nallom then explained the history of the Constitutional Court in Indonesia. During a session of the Investigating Committee for Preparatory Works for Independence (BPUPKI), Mohammad Yamin proposed that the Supreme Court (MA) be given the authority to review laws. However, Soepomo did not agree, because the Constitution did not adhere to trias politica. In addition, there were not many qualified law graduates at that time. In the 1970s, the Association of Law Graduates proposed that the Supreme Court be given an authority to review laws. Meanwhile, the MPR (People’s Consultative Assembly) Decree No. III/MPR/2000 on Sources of Law and Legislative Hierarchy in Article 5 paragraph (1) states, “The MPR has the authority to review laws against the 1945 Constitution, and MPR Decrees.”

As a result, changes were made to the 1945 Constitution during the Reform era, one of which was the establishment of the Constitutional Court on August 13, 2003. The Constitutional Court has four authorities and one obligation. The main authority is to review laws against the Constitution. Another is the authority to decide on constitutional disputes between state institutions whose authorities are granted by the Constitution. Next, to decide on the dissolution of political parties, there the petitioner is the government, which can be represented by the Attorney General and/or a minister assigned by the president for that purpose. The respondent is a political party represented by a political party leader or a legal counsel. Another authority is to decide disputes over the results of the presidential and legislative elections.

Meanwhile, the Court has an obligation to decide on the opinion of the House if the president and/or vice president are suspected of having violated the law. The House is obliged to explain clearly in the petition the alleged act, or if the president and/or vice president no longer meet the requirements to be a president and/or vice president based on the 1945 Constitution. The Constitutional Court has additional authority to decide disputes over the results of regional head elections (pilkada).

Also read: Pemuda Muhammadiyah Receive Instruction on Pancasila and Constitution 

Drafting Judicial Review Petition

Substitute registrar Syukri Asy’ari explained the “The Drafting of Judicial Review Petition of the 1945 Constitution.” He said that a judicial review was a case that only involved one party, and where legal norms are reviewed. There is a petitioner but not a respondent or opposing party.

He then explained the parties in a judicial review case: petitioner, testifiers, and relevant party. They can be represented by a legal counsel based on a special power of attorney and/or accompanied by an counsel based on a certificate.

A petitioner is the party who believes their constitutional rights and/or authorities have been impaired by the enactment of the law. They may be individual Indonesian citizens or groups of people who have the same interests, customary law communities that live in accordance with the principle of the Unitary State of the Republic of Indonesia, public or private legal entities, and state institutions.

Syukri also explained that the Court can request information and/or minutes of meetings relating to the law being examined to the MPR, DPR, DPD, and/or the president. The testimony must at least contain a clear description of the facts that occurred during the discussion and/or the minutes of the meeting of the law or perppu (government regulation in lieu of law), including other matters deemed necessary by the testifiers or which are requested by the Court.

A relevant party is a party who have a direct and/or indirect interest in the subject matter of the petition, or whose rights, authorities, and/or interests are directly and/or indirectly affected by the subject matter of the petition. They could be indirectly affected but have concerns about the issue.

Syukri then explained the requirements for filing a petition. A petition can be submitted offline or online. 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.

After the presentations, the participants practiced drafting a judicial review petition. They were divided into separate groups to learn the petition format. Then, they continued drafting it independently. 

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

Translation uploaded on 6/10/2021 15:44 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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