Deputy Chief Justice Aswanto speaking at a special education for professional advocates Batch III of2022 for the Law Faculty of Universitas Indonesia Timur (UIT), Friday (10/14/2021). Photo by Humas MK/Panji.
Friday, October 14, 2022 | 16:30 WIB
JAKARTA (MKRI)—The Constitutional Court (MK) was established in order to address public concerns on the rule of law or rechtsstaat in a wider scope, said Deputy Chief Justice Aswanto at a special education for professional advocates (PKPA) Batch III of 2022 in collaboration between the Law Faculty of Universitas Indonesia Timur (UIT) and the Makassar executive board of the Association of Indonesian Advocates (Peradi) on Friday, October 14, 2022 virtually.
Deputy Chief Justice Aswanto said rechtsstaat is a concept of a state of law that must be respected. “Whether the content of the norms is appropriate and does not conflict with the values in society is another problem. The rule of law is similar to rechtsstaat. However, within it, there is a mechanism to question legal norms that are deemed inappropriate. [Before the Constitutional Court was established], in Indonesia there was no institution for justice seekers to question laws that were deemed inconsistent with the Constitution or the values in society. That is why during the Reform era, several institutions were established, one of which was the Constitutional Court,” he explained.
He further explained that Article 24 paragraph (2) of the amended 1945 Constitution stipulates that the judicial power is exercised by a Supreme Court (MA) and judicial bodies under it within a general judicature, religious court, military court, state administration court, and by a Constitutional Court. The Constitutional Court’s authorities in Article 24C of the 1945 Constitution, he added, relate to its functions: the guardian of the Constitution and the guardian of the human rights.
The Constitutional Court has four authorities. First, to adjudicate laws against the 1945 Constitution at the first and last instance with decisions that are final. “Laws serve to implement the norms in the Constitution, which guarantee the citizens’ constitutional rights. However, sometimes those rights are disregarded. Therefore, if there is a law whose substance negates the constitutional rights that have been guaranteed in the a quo law, citizens who feel aggrieved can file a judicial review [petition] of the law to the Constitutional Court,” he explained.
The second authority, he said, is to decide disputes over the authority of state institutions whose authority is granted by the Constitution. “When there is a dispute between two state institutions, the Constitutional Court resolves the dispute,” he explained. The next authority is to decide the dissolution of political parties and disputes over election results. In addition, the Court is also obliged to give a decision on the opinion of the House of Representatives regarding alleged violations by the president and/or vice president according to the 1945 Constitution.
Judicial Review Model
Furthermore, Deputy Chief Justice Aswanto explained two models of judicial review. First, the formal judicial review concerns the lawmaking process and matters outside of the material judicial review. Second, the material judicial review concerns the content of articles, paragraphs, or part of laws that are deemed in conflict with the 1945 Constitution.
He also explained a number of reasons for petitioners to file a judicial review petition to the Constitutional Court: their constitutional rights are harmed by the enactment of a law, where the constitutional impairment was specific, actual, and potential. In addition, there must be a causal relation between the constitutional rights guaranteed by the Constitution and the enactment of the law.
Individual citizens, customary law communities, public or private legal entities, and state institutions can be petitioners. The petitioner and/or respondent can be assisted or represented by a legal counsel, while public/private entities can be assisted by a legal counsel or appoint a proxy.
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.
Deputy Chief Justice Aswanto also explained the format of a judicial review petition: 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.
Court Proceedings
Next, Deputy Chief Justice Aswanto explained the proceedings of the Court, starting with a panel preliminary examination hearing, presided over by three justices (one chair and two members), which the petitioner and/or their legal counsel attend. It is followed by a petition revision hearing. If the case continues, it will advance to the plenary examination hearings, where the justices hear the testimonies of the experts, the House, the MPR (People’s Consultative Assembly), relevant institutions, and witnesses. The proceedings conclude with a ruling hearing.
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/26/2022 11:43 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.
Friday, October 14, 2022 | 16:30 WIB 139