Head of the Public Relations and National Affairs Department Fajar Laksono speaking at a technical assistance program for legal analysts Batch II, Wednesday (8/24/2021). Photo by MKRI/Teguh.

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Wednesday, August 24, 2022 | 14:24 WIB

JAKARTA (MKRI)—The technical assistance program for legal analysts Batch II was held by the Constitutional Court (MK) through the Pancasila and Constitution Education Center (Pusdik) on Wednesday, August 24, 2022, which the center organized virtually from Cisarua, Bogor, West Java.

In the first session on the second day, Head of the Public Relations and National Affairs Department Fajar Laksono talked about “The Constitutional Court and the Characteristics of Its Procedural Law.” He said the Constitutional Court’s procedural law is regulated by law, following Article 24C paragraph (1) of the 1945 Constitution. He further explained the Court does not make a new procedural law without reason, which is to provide justice to petitioners and the entire citizens, since the Court’s decisions are erga omnes or applying to all.

“So, with the minimalistic procedural laws, the Court are given the duty to enforce law and justice,” he said.

He also explained that the Court had greatly contributed to the development and improvement of the law and democracy. Many of the Court’s decisions promote just legal development. However, there were much criticism on the Court’s decisions. The Court always asserts that its decisions cannot satisfy all.

“No judicial decisions can satisfy everyone. I believe you believe so too. There will be ones who are satisfied, but some will feel them unfair,” he stressed.

Fajar believes there would be criticism to any decision by the Court. “If the Court rules fast, people will comment about it. If it takes a long time, they will protest too. For example, the criticize the case on medical cannabis. The petition was filed in December 2020, while the hearings started in 2021. Because the petitioners presented many experts, it took a long time. The Court gave balanced opportunities to testify,” he said.

Therefore, he said, whether the proceedings take a long time, it not only depends on the Court, but on all parties. The more witnesses and experts are presented, the longer it will take.

Also read: Justice Anwar Usman Stresses Importance of Constitutional Rights to Legal Analysts

Constitutional Interpreter

The next speaker, senior researcher Pan Mohamad Faiz, talked about “Constitutional Interpretation.” Before legal analysts from central and regional institutions, he said that the Constitution has different characteristics from holy books. It has many weaknesses, which can be improved by formal amendment and constitutional interpretation.

“There have been many improvements to our Constitution since the Reform, which was expanded to 73 articles, compared to the short text of the US Constitution. When the US Constitution was changed, only addendums of several articles were made. However, how can they be long lasting? That is because the Supreme Court interprets them. They haven’t made changes for hundred of years, despite criticism,” Faiz said.

He also said that the Court was given authority as a final interpreter when the government (state) or a state institution has a different interpretation from citizens, or a state institution from another. When that happens, the case can be brought to the Constitutional Court. “This interpretation is usually present in the Court’s decisions,” he said.

He explained the models of constitution in several countries. The constitutional interpretation authority is given to the judiciary, be it the Constitutional Court or the Supreme Court. The judiciary is seen to have a supreme position so that only its interpretation of the Constitution is legally binding.

Constitutional Court’s Legislation in Judicial Review

Next, substitute registrar Mardian Wibowo shared his knowledge and experience in a presentation on “Constitutional Review of the 1945 Constitution.” He said that the constitutional review authority was once restricted by Article 50 of the Constitutional Court Law. However, following legal needs, the provision was amended so that the Court could perform judicial review as long as it is based on Article 22A of the 1945 Constitution.

“Not all laws can be petitioned, because only laws delegated from Article 22A of the 1945 Constitution can be formally challenged. The 1945 Constitution does not regulate the formation procedure of [government regulations in lieu of laws], so the finer details are left to the Lawmaking Law, which the Court uses as the second touchstone in a formal judicial review. Meanwhile, in a material review, the touchstone is only the 1945 Constitution,” he said.

Mardian then talked about three Court’s legislative roles in judicial review. First, the Court is a negative legislator, where it can revoke a law entirely; remove certain words, phrases, sentences, or paragraph, which change its meaning.

The second, Mardian said, is the role as a positive legislator. The Court can add certain words or phrases to a certain article or paragraph, change certain norms through a new reinterpretation without making any changes. Third, it serves as an affirmatory. When a petition is rejected, no change applies to the norm.

The program would run for four days from Tuesday- Friday, August 23-26, 2022 with 376 participants. The participants would receive materials on the Constitution, the Constitutional Court, the procedural law for judicial review, and the drafting of judicial review petition. Former constitutional justices, substitute registrars, and other speakers would deliver presentations.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/7/2022 08:28 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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