Constitutional Court researcher Irfan Nur Rachman delivering a presentation of PPHKWN for the Association of Indonesian Policy Analysts (AAKI) virtually, Wednesday (6/22/2021). Photo by Humas MK/Teguh.
Wednesday, June 22, 2022 | 16:05 WIB
JAKARTA, Public Relations—The constitution awareness program for citizens (PPHKWN) for the Association of Indonesian Policy Analysts (AAKI) continued on its third day on Wednesday, June 22, 2022 virtually from the Pancasila and Constitution Education Center, Cisarua, Bogor. The program was collaboration between the Constitutional Court (MK) and the AAKI.
Constitutional Court researcher Irfan Nur Rachman talked about “The Constitutional Court and the Procedural Law for Judicial Review.” He started his presentation by explaining the narrow and broad definitions of the Constitution. “The Constitution can be defined in a narrow sense as the 1945 Constitution, and in a broad sense as the basic values of the state,” he said.
Irfan said that the Constitution is the source for all laws and other laws and regulations in a country. In the context of constitutional supremacy, all decisions and any actions must be in accordance with the constitution.
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History of Judicial Review
Irfan also said that the history of judicial review started with Marbury v. Madison (1803), which began with the fall of the United States president John Adams, who was replaced by Thomas Jefferson in 1800. Before he stepped down, he appointed his inner circle as officials, including judges. After the appointment decrees were signed, they could not be conveyed to the officials because John Adams had stepped down in a hurry.
President-elect Thomas Jefferson refused to provide the officials with copies of the decrees, leading to protests, one of which by William Marbury who felt his appointment had been approved by the Senate. Marbury appealed to the Supreme Court. The Supreme Court rejected Marbury his case, but it brought forth judicial review.
Irfan also explained a brief history of judicial review in Indonesia since the independence. Moh. Yamin made a suggestion during a session of the Investigating Committee for Preparatory Works for Independence (BPUPK) that the Supreme Court be given the authority to appeal laws. However, Soepomo did not agree because the Constitution did not adhere to the trias politica.
Years later, after the Reformation, the 1945 Constitution was amended. Judicial review was proposed once more, until finally the Constitutional Court of the Republic of Indonesia (MKRI) was founded on August 13, 2003. The Court has the authority to review laws against the Constitution, decide on authority disputes between state institutions whose authority is granted by the Constitution, decide on the dissolution of political parties, and decide on disputes on the results of general elections, and is obligated to decide on the opinion of the House of Representatives (DPR) regarding alleged violations by the president and/or vice president according to the Constitution.
Irfan also explained that the Court’s hearings are open to the public except for the justice deliberation meeting (RPH), fast, simple, and free. The justices are both active and passive and the Court believes in the principle of free proof.
All laws and government regulations in lieu of laws (perppu) can be subjected to judicial review materially and/or formally. Material review concerns the content of the paragraphs, articles, and/or parts of the law or perppu. Only the formal review, which concerns lawmaking, is set to a deadline of 45 days.
“Regarding formal review, the Court’s jurisprudence states that it is prioritized to be decided within a period of 60 days. In addition, the law’s enactment can be suspended by the Court,” Irfan explained.
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Judicial Review
Next, substitute registrar Saiful Anwar discussed “Drafting a Judicial Review Petition.” He explained that a judicial review case only has one party, and the object is the norm of the law. There is a petitioner but no respondent or opposing party.
He also explained the parties in a judicial review case: the petitioner, the testifiers, and the relevant party. All three can be represented by a legal counsel based on a special power of attorney and/or accompanied by an assistant based on a certificate.
A petitioner is the party who feels their constitutional rights and/or authorities have been impaired by the enactment of a law. They could be individual Indonesian citizens or groups of people who have the same interests, customary law communities that live in accordance with the principles of the Unitary State of the Republic of Indonesia (NKRI) as regulated by law, public or private legal entities, as well as state institutions.
Saiful explained that the Court may request information and/or minutes of meetings relating to the petition being from the People’s Consultative Assembly (MPR), the House, the Regional Representatives Council (DPD), and/or the president. A written testimony should at least contain a clear explanation of the facts that occurred during the discussion and of the law or perppu being petitioned or the minutes of the meeting, as well as other matters the Court or the testifier deemed necessary.
“The so-called relevant party is a party with direct and/or indirect interests in the subject matter of the petition. Those with direct interest are parties whose rights and/or authorities are directly affected by the subject matter of the petition. Relevant parties with indirect interests are those whose rights, authorities, and/or interests are not directly affected by the subject matter of the petition but are moved due to their concern for the petition,” Saiful said.
After the presentations, the participants continued with practicing drafting a judicial review petition. They were divided into separate groups to draft it, then they did so independently.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/27/2022 09:35 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.
Wednesday, June 22, 2022 | 16:05 WIB 256