Constitutional Justice Suhartoyo speaking at a special education for professional advocates (PKPA) for the Law Faculty of the Christian University of Indonesia and the East Jakarta branch of Peradi, Thursday (8/25/2022). Photo by MKRI/Ilham W. M.
Constitutional Justice Suhartoyo speaking at a special education for professional advocates (PKPA) for the Law Faculty of the Christian University of Indonesia and the East Jakarta branch of Peradi, Thursday (8/25/2022). Photo by MKRI/Ilham W. M.
Thursday, August 25, 2022 | 22:35 WIB
JAKARTA (MKRI)—Constitutional Justice Suhartoyo spoke at a collaboration special education for professional advocates (PKPA) Batch XVI by the Law Faculty of the Christian University of Indonesia (FH UKI) and the East Jakarta branch executive board (DPC) of the Association of Indonesian Advocates (Peradi) on Thursday evening, August 25, 2022 virtually.
He delivered a presentation on “Litigating in the Constitutional Court,” in which he explained the Constitutional Court’s (MK) procedural laws, which regulates the procedure for lodging a petition to the Court and the process of the proceedings.
He said that the Court’s procedural laws cannot be separated from its authorities and obligation. The Court’s atypical authority is judicial review of laws against the Constitution, where there is the petitioner but no respondent, since the thing being reviewed is the norm of laws.
“[It is] different from the Court’s other authorities [there] the is the petitioner and the respondent,” he said.
Aside from reviewing laws against the Constitution, the Constitutional Court is authorized to settle authority disputes between state institutions, to decide the dissolution of political parties, and to settle disputes over general election results. It is also obligated to decide the House’s opinion on an alleged violation of law committed by the president and/or vice president, which could result in impeachment.
The Court also has an additional authority to rule on regional head election disputes, which is not granted by the Constitution but by Law No. 10 of 2016 on Regional Election.
“Those four authorities and one obligation is mandated by the Constitution. These authorities follow 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,” he explained.
Object of Judicial Review
Justice Suhartoyo added that there are two judicial review models. First, formal judicial review concerns the lawmaking process and matters outside of the material review. Second, material judicial review concerns the content of articles, paragraphs, or part of laws that are deemed in conflict with the 1945 Constitution.
The petitioner files a petition when their constitutional rights and/or authorities are violated due to the enactment of the law(s) petitioned. This constitutional loss must be specific, actual, or potential, which according to logical reasoning is inevitable. In addition, there must be a causal relationship between the perceived loss and the enactment of the norm.
Those who can file a judicial review petition, Justice Suhartoyo explained, are individual citizens, customary law communities, private and public legal entities, as well as state institutions. The petitioner and/or respondent can be assisted or represented by legal counsels while private or public legal entities may be assisted by a proxy or appoint one.
These counsels who 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.
Justice Suhartoyo also explained that litigating in the Constitutional Court is different from doing so in other courts. “Because the are differences in relation to the Court’s authorities,” he said.
A judicial review petition, he added, consists of the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. It can be filed either online or in person.
The proceedings start with a panel preliminary examination hearing, presided over by three justices (one chair and two members), who provide advice to improve the petition. It is followed by a panel petition revision hearing. If the case continues, it will advance to the plenary examination hearings, where the justices hear the testimonies of the witnesses, relevant parties, experts, the Government, the House of Representatives (DPR), the People’s Consultative Assembly (MPR), or other parties from which a testimony is deemed necessary.
Then the case concludes with a ruling hearing. The Court’s decisions, Justice Suhartoyo said, are erga omnes, meaning applying to all. Although the petition is filed by individuals, the Court decision bounds all citizens and influences the legal politics in Indonesia. Its decisions are also final and binding, against which no other legal action exists.
The Court can rule a norm conditionally constitutional, meaning that it would not be unconstitutional if interpreted following the Court’s interpretation, and vice versa.
Writer : Utami Argawati
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 11/15/2022 15:11 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.
Thursday, August 25, 2022 | 22:35 WIB 99