Deputy Chief Justice Aswanto speaking at a public discussion on “Judicial Review as Legal Avenue for Justice and Human Rights” organized by Riksawan Institute and Nusakom Pratama Institute, Saturday (6/25/2021) at the IPTEK Building of Hasanuddin University, Makassar, South Sulawesi. Photo by Humas MK.
Wednesday, June 29, 2022 | 15:18 WIB
JAKARTA, Public Relations—Deputy Chief of the Constitutional Court (MK) Justice Aswanto spoke at a public discussion on “Judicial Review as Legal Avenue for Justice and Human Rights,” organized by Riksawan Institute and Nusakom Pratama Institute on Saturday, June 25, 2022 at the IPTEK Building of Hasanuddin University (Unhas), Makassar, South Sulawesi.
Justice Aswanto started his presentation by saying that the guarantee of human rights in the constitution is one of the characteristics of a rule of law. Guarantee of human rights are enshrined in Chapter XA Articles 28A‒28J of the 1945 Constitution. Article 1 paragraph (3) of the 1945 Constitution also emphasizes that Indonesia is a law-based state, so guarantee of human rights is a necessity and an affirmation of Indonesia as a state of law (rechtsstaat) and not a state of power (machtsstaat). In addition, a law-based state also provides constitutional protection for these human rights, with methods and procedures regulated in the constitution.
Before the participants, law professor of Hasanuddin University Judhariksawan, and moderator Arie Junaedi (Director of Nusakom Pratama Institute), Justice Aswanto said the founding of the Constitutional Court with its judicial review authority proved a manifestation of the methods and procedures of the constitutional protection of the human rights guaranteed in the Constitution. Thus, while the House of Representatives (DPR) and the president have the authority to form laws, the Constitutional Court has the authority to review laws against the 1945 Constitution. In this position, Justice Aswanto explained, it functions as a protector of human rights that exercises its authority and pass decisions that can provide guarantee of justice.
In line with its function in providing guarantee of justice, Justice Aswanto said, the Constitutional Court had decided through a review of Article 268 paragraph (3) of the Criminal Procedure Code (KUHAP), with Decision No. 33/PUU-XIV/2016, that it is possible to file a judicial review more than once. In its legal considerations, the Court asserted that justice must be prioritized over legal certainty, especially in criminal cases, because judicial review in such cases is an extraordinary legal effort that aims to find material justice and truth.
“So, the Constitutional Court emphasized in its decision that efforts to find justice cannot be restricted by time. So, this is different from efforts to achieve legal certainty, which call for restrictions,” he said at the discussion, which district court judges, legal practitioners, and Unhas’ students attended both online on Zoom and onsite at the Iptek Building.
Justice Aswanto explained the principle of litis finiri oportet in law, which means that all proceedings must end. This principle, he added, is related to legal certainty, which cannot be applied rigidly in criminal law, especially in seeking justice and material truth. So, the Constitutional Court through Decision No. 33/PUU-XIV/2016 asserted that Article 263 paragraph (1) of the Criminal Procedure Code should at least contains four main foundations. First, the judicial review petition is only filed against any decision that have permanent legal force. Second, it cannot be filed against a verdict of acquittal of all charges. Third, it can only be filed by the convict or their heirs. Fourth, it can only be filed against a sentencing decision.
Thus, Justice Aswanto added, the right to apply for judicial review belongs to the convict or their heir, not to the prosecutor/public prosecutor. If the prosecutor files a judicial review petition even though they have previously filed a cassation and extraordinary legal remedies in the form of cassation for the sake of the law and it has been declared rejected, giving the prosecutor/public prosecutor the right to file a judicial review will result in legal uncertainty and injustice.
Writer : Sri Pujianti
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/30/2022 15:47 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 29, 2022 | 15:18 WIB 471