Head of the Public Relations and National Affairs Department Fajar Laksono speaking at a technical assistance program on the Constitutional Court’s procedural law for Peradi administrators and members virtually, Wednesday (8/3/2021). Photo by Humas MK/Teguh.
Wednesday, August 3, 2022 | 19:53 WIB
JAKARTA, Public Relations—The second day of the technical assistance program on the Constitutional Court’s procedural law for the management and members of the Association of Indonesian Advocates (Peradi) by the Constitutional Court’s (MK) Pancasila and Constitution Education Center (Pusdik) commenced virtually on Wednesday, August 3, 2022. The advocates followed a presentation by Head of the Public Relations and National Affairs Department Fajar Laksono on the Court’s role in administering law and state administration in Indonesia, which was in disorder due to political anomalies. One such anomaly was the impeachment of President Abdurrahman Wahid (Gus Dur) in the middle of his term despite Indonesia implementing a presidential system of government.
Fajar explained that the Constitutional Court served to prevent such anomalies in the past. Any proposal of impeachment must go through a judicial mechanism and legal evidence and must not be for political reasons. However, he revealed that the Court had never handled an impeachment case.
“So, the Constitutional Court was formed to organize Indonesian law and state administration so that they be within the limits of democracy as required by the Constitution,” he said before 330 advocates in attendance.
He added that in the past, the people had to accept any laws passed by the legislatures and implement them without being able to review their impacts. After the Reform and the establishment of the Constitutional Court, citizens who suspect any law of violating their constitutional rights can file a petition to the Constitutional Court even without an advocate. He also said the Constitutional Court gave way to constitutional law, where advocates concerned with constitutional issues can work.
Constitutional Interpretation
In the second presentation, former constitutional justice of 2003-2008 and 2015-2020 I Dewa Gede Palguna explained the importance of constitutional interpretation by the Constitutional Court. Constitutional interpretation, Palguna said, is carried out by justices as a purely legal matter, not a political one.
“Therefore, independent interpreters that are not subject to electoral will are needed. Similarly, the Constitutional Court’s interpretation in its decisions serve to describe legal and constitutional issues that are needed in accordance with legal developments in public,” explained the former justice who is currently active academically at Udayana University.
Palguna then explained the methods of constitutional interpretation: textual, historical, structural, responsive, doctrinal, prudential, and ethical. He emphasized that justices could have departed from originalism and non-originalism in the interpretation. So, in practice, interpreters of the Constitution/designers, especially non-originalists, say that the interpretation can be temporary and there could be new interpretations that are more enlightening than previously.
He also explained hermeneutics as a method of interpretation that was used to interpret ancient texts. It is then used in constitutional interpretation to understand the text and context of a norm holistically.
Also read: Chief Justice: State Committed to Protecting Citizens’ Constitutional Rights
Judicial Review Authority
In the hierarchy of laws and regulations in Indonesia, the 1945 Constitution is at the top, followed by decrees of the People’s Consultative Assembly (Tap MPR), laws and government regulations in lieu of laws (perppu), government regulations (PP), presidential regulations (perpres), provincial regulations, and regency/city regulations. There are two views regarding the authority to conduct a judicial review. The first is the view that the MPR decree can be reviewed in the Constitutional Court because its material content is the same as the law, although it occupies a higher position than the law. The second is the view that the MPR decree cannot be reviewed in the Constitutional Court because of its higher position than the law. This was the response by senior researcher Pan M. Faiz to a question by Omar in the third session of the program.
“The MPR decree was once omitted from the hierarchy of laws and regulations in Indonesia and then in 2011 it was re-included on the grounds that it was still used as a basis for making legislation. Although theoretically it is not included in legislation because its force is unlike that of the law,” Faiz explained.
Next, Singgih from Aceh asked about the deadline for the Constitutional Court’s decision. Faiz answered that it was not specified in the Constitutional Court Law, as the duration of the resolution of cases may vary. However, there are deadlines for the resolution of general and regional election dispute cases.
Faiz also revealed that one may volunteer as a Relevant Party in a judicial review case and there is no deadline for it. One may do so since the preliminary hearing. He added that judicial review cases are unlike lawsuits in other courts because the issue exists between the petitioner and a norm. In this case, the House of Representatives (DPR) and the Governments act as testifiers and are not opposing parties to the petitioner.
Reviving Annulled Norms
A participant named Alwan asked an interesting question about the possibility of the Constitutional Court re-authorizing norms that it had previously annulled. Faiz replied that it had never done so. If a petitioner challenge such a norm, it would question the object of the petition. That said, it had revived laws, one of which being the Electricity Law, but temporarily. In truth, this is under the legislators’ jurisdiction.
Faiz also answered Alwan’s question about the Preamble to the 1945 Constitution and the Pancasila precepts in the Preamble to the 1945 Constitution as basis for judicial review. Alwan believed it could be done since the 1945 Constitution comprises the Preamble and articles. In response, Faiz suggested that petitioners base their petition on the combination of the two.
“In practice, it is possible. In several decisions, the Court referred its considerations to the Preamble to the 1945 Constitution or Pancasila within the Preamble. Thus, in the judicial review of laws against the 1945 Constitution, which consists of the Preamble and articles, because the Preamble is part of the 1945 Constitution, it can be used in the judicial review. However, if possible, don’t just use the Preamble to the 1945 Constitution, but use both; combine the Preamble and the articles. The Preamble to the 1945 Constitution is more general, while the articles make everything more concrete,” Faiz answered.
Writer : Sri Pujianti
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/4/2022 14:24 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, August 03, 2022 | 19:53 WIB 220