Chief Justice Anwar Usman with Head of the Center for Analysis and Evaluation of BPHN Yunan Hilmy, and Acting Head of the Pancasila and Constitution Education Center Imam Margono at the opening of the technical assistance program for legal analysts Batch II, Tuesday (8/23/2022). Photo by MKRI/Teguh.
Tuesday, August 23, 2022 | 15:51 WIB
JAKARTA (MKRI)—The special chapter on human rights in the 1945 Constitution, i.e. Chapter XA, is a crucial material in the constitutional amendment, both in terms of quantity and substance. It indicates that the state intended to guarantee the protection of the citizens’ constitutional rights, said Chief Justice Anwar Usman at the opening of the technical assistance program for legal analysts Batch II on Tuesday, August 23, 2022. The program took place virtually from the Constitutional Court’s Pancasila and Constitution Education Center (Pusdik).
The establishment of the Constitutional Court, he said, was aimed at guarding those rights following the mandate of the 1945 Constitution. Laws are political products by the legislative and executive branches of the state power. Their power is legitimized through democratic elections, which result in majority votes and the opportunity to sit in the parliament and to exercise the highest executive power as a president.
Justice Anwar believes this concept applies in almost all world democracies based on popular sovereignty, where the people hold the highest power. This seems to be an ideal state system. “While in fact, upon observation, such a democratic principle has a weakness, as it only regards the majority as the voice of truth, which might not always be accurate,” he said before 376 legal analysts who participated in the program virtually.
He added that the democratic system that the state currently adheres to must be in line with nomocracy as the highest consensus in the state. This has a logical consequence in that despite a law was formed by the legislature and the executive, in order to prevent tyranny of the majority over the minority, constitutional review in the Constitutional Court serves as a way for all citizens to protect themselves against violation of their constitutional rights due to the enactment of a law.
“The executive and the legislative have a positive authority to produce laws, while the Constitutional Court has a negative authority to repeal them. Balance between those state branches emerged from the idea of balance in the democratic system that prioritized popular sovereignty and norm sovereignty as a state consensus,” he explained.
Justice Anwar stressed that it was based on a factual notion that power emerging from democracy was majoritarian and was subject to abuse. Therefore, the lawmaking authority of the legislative and the executive is strictly regulated, both formally and materially. The formal rule necessitates a law to be formed following the existing procedure. Meanwhile, the material rule dictates that a law and its components cannot be against the Constitution. Therefore, constitutional review of laws in the Constitutional Court concerns those two aspects: formal and material.
He also explained that Law No. 24 of 2003, which regulates the founding of the Constitutional Court, stipulates that only laws promulgated after the amendment to the 1945 Constitution may be petitioned. This was based on the principle that the law must be prospective, not retroactive. However, it is against the spirit of the formation of the Constitutional Court: protection of the citizens’ constitutional rights from any unconstitutional law. He asserted that the issue with that provision was that laws promulgated after the constitutional amendment might also violate citizens’ constitutional rights.
“If the norm had remained, this provision would have been a formal requirement for petitioners to request the judicial review of a law. Therefore, in 2004, this article was repealed by the Constitutional Court through Decision No. 066/PUU-II/2004,” Justice Anwar said.
Justice Anwar also explained that although the Constitutional Court Law only regulates three types of ruling: dismissal, rejection, and granting, the Court’s ruling has developed to include verdicts declaring norms conditionally constitutional and conditionally unconstitutional. In some of its decisions, the Court ruled to reject the petitions but in its legal considerations advised lawmakers to amend the law. There are more variants in the procedural law for judicial review resulting from the Constitutional Court’s decisions, including the latest procedural law, as regulated in the Constitutional Court Regulation No. 2 of 2021.
Second Batch
Acting Head of the Pancasila and Constitution Education Center Imam Margono said the participants of this program were ASNs (state civil apparatus) from various ministries and regional governments across the country.
“This is the second time the program is held. The first was held on July 4-7, 2022 with the consideration of the close relation between the Constitutional Court and legal analysts. The Court encourages constitutional awareness among legal analysts so that they may have strategic roles and positions in building awareness of Pancasila and the Constitution,” he said in his report.
He also revealed that the program would run for four days from Tuesday- Friday, August 23-26, 2022 with 376 participants.
Important for Legal Analysts
Head of the Center for Analysis and Evaluation of National Laws of the National Law Development Agency (BPHN) Yunan Hilmy expressed his gratitude to and appreciation for the Constitutional Court for organizing the program. “Hopefully cooperation for the functional position of legal analysts such as this can continue,” he said.
Hilmy said that the law is important in building a nation’s civilization as the highest norm in daily interactions. In addition, humankind and the law are inseparable.
He added that legal analysts have broad duties that must be balanced by directed and measurable competency development. This program is expected to be one of the ways to develop the potential of legal analysts.
“Through this program, hopefully legal analysts will not only understand the Constitution and Pancasila better but also have understanding and mastery of the law and the judicial review procedure by the Constitutional Court,” he stressed.
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/15/2022 11:12 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.
Tuesday, August 23, 2022 | 15:51 WIB 227