Constitutional Justice Suhartoyo speaking at a special education for professional advocates for the Law Faculty of As-Syafi’iyah University and West Jakarta Peradi, Saturday (9/10/2021) at the Constitutional Court. Photo by Humas MK.
Saturday, September 10, 2022 | 16:25 WIB
JAKARTA (MKRI)—Judicial review of laws in the Constitutional Court can be formal and/or material, said Constitutional Justice Suhartoyo at a special education for professional advocates (PKPA) Batch 11 for the Law Faculty of As-Syafi’iyah University and the West Jakarta branch of the Association of Indonesian Advocates (Peradi) on Saturday, September 10, 2022.
The formal judicial review concerns lawmaking procedure and other matters outside of the material judicial review, he explained.
“The petitioner questions the lawmaking process, which they believe did not follow the procedure. Meanwhile, the material judicial review concerns the content of laws that are deemed in conflict with the 1945 Constitution. This includes articles, paragraphs, or parts thereof,” he added.
He also explained that a formal petition is filed within 45 days since the law is promulgated in the state gazette. “Material petition is not time-restricted. Even a law that has been in force for decades may be petitioned,” he said.
If a formal petition is granted, the entire law will be annulled because it has been declared unconstitutional. Meanwhile, only certain parts challenged in a material petition are declared unconstitutional and null and void.
Justice Suhartoyo 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.
Justice Suhartoyo also explained that the procedural laws of the Constitutional Court differ from those in other courts. “Litigating in the Constitutional Court differ based on its authorities,” he said.
In order to file a petition, a petitioner must have suffered impairment to their constitutional rights granted by the 1945 Constitution.
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.
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.
In the Q&A session, a student asked whether a petitioner may challenge multiple laws. Justice Suhartoyo asserted that the petitioner must have legal standing to file the petition, and there must be causality.
“For example, if Mr. Sartono works at a company that complies with the Manpower Law, which allows a company to fire an employer who marries or have a familiar relation with a coworker, this means there is specificity. To file a petition to the Court, the employer would challenge this provision. The Court has ruled to grant such a petition. So, petitioners cannot challenge multiple laws as it would make [the petition] not specific,” he explained.
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 9/12/2022 13:20 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.