Constitutional Justice Suhartoyo speaking at a special education for professional advocates for the Universitas Islam 45 (Unisma) Bekasi, Saturday (8/13/2021). Photo by Humas MK/Bayu.

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Saturday, August 13, 2022 | 17:09 WIB

JAKARTA (MKRI)—Constitutional Justice Suhartoyo delivered a presentation on “Litigating in the Constitutional Court” at a special education for professional advocates (PKPA) for the students of Universitas Islam 45 (Unisma) Bekasi on Saturday, August 13, 2022. The event was collaboration between the Association of Indonesian Advocates (Peradi) and the Faculty of Religion of Unisma Bekasi.

The Court’s procedural laws depend on its authorities and obligation as it has different authorities, each with different characteristics, the special one being judicial review of laws against the Constitution. “This authority is the Constitutional Court’s distinct feature, where there is a petitioner but no respondent because the object is the norms of law,” he said. This differs from the Court’s other jurisdictions, such as resolving general and regional election disputes, where there are petitioner and respondent.

Constitutional Court’s Authorities

Aside from reviewing laws against the Constitution, the Court also settle authority disputes between state institutions, decide the resolution of political parties, and settle election disputes. It also has an obligation to decide the House’s opinion on an alleged crime committed by the president and/or vice president. In addition, it has additional an authority to rule regional election dispute cases, which is not mandated by the Constitution.

Those four authorities and one obligation are a constitutional mandate pursuant to Article 24C paragraphs (1) and (2) of the 1945 Constitution, Law No. 24 of 2003 on the Constitutional Court, and Law No. 48 of 2009 on the Judiciary. Meanwhile, the Court’s additional authority concerning regional elections is based on Law No. 10 of 2016 on the Regional Election.

Judicial Review Models

Justice Suhartoyo then explained two judicial review models. First, the formal judicial review concerns lawmaking procedure and other matters outside of the material judicial review. Second, the material judicial review concerns the content of laws that are deemed in conflict with the 1945 Constitution.

A petitioner files a judicial review petition to the Court because their constitutional rights are harmed by the enactment of a law. This constitutional impairment must be specific, actual, or potential. In addition, there must be a causal relationship between the perceived loss and the enactment of the norm.

He added that individual citizens, customary law communities, private and public legal entities, as well as state institutions can file a petition to the Constitutional Court. The petitioner and/or respondent can be assisted or represented by a legal counsel, while public/private entities can be assisted by or appoint a proxy.

These legal counsels do not have to be advocates but must be familiar with the procedural law in the Constitutional Court and able to assist the litigants after submitting a letter to the Court. This is to facilitate access to justice for those who cannot afford advocates. Petitioners can also request a counsel’s assistance after sending a letter to the Court.

A judicial review petition, Justice Suhartoyo explained, comprises 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 in person.

Proceedings

Next, Justice Suhartoyo explained the proceedings at the Constitutional Court. It starts with a preliminary hearing that the petitioner and/or their legal counsel attend, presided over by a panel of three constitutional justices, who are obligated to give recommendations to the petitioner. It is followed by a petition revision hearing with a panel of three constitutional justices. The next step is evidentiary hearings where the justices hear the testimonies of experts, the Government, the House of Representatives (DPR), the People’s Consultative Assembly (MPR), or other institutions, the witnesses, and relevant parties. The proceedings end with a ruling hearing.

The Court’s decisions, he added, are erga omnes, meaning they apply not only to the petitioners but to all citizens and the law in Indonesia. They are also final and binding, meaning that they cannot be appealed. In addition, the Court may rule a law conditionally constitutional or unconstitutional.

Writer        : Nano Tresna Arfana
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 8/22/2022 09:52 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.

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