Constitutional Justices Daniel Yusmic P. Foekh and Enny Nurbaningsih posing for photographs after delivering lectures at Panca Bhakti University, Pontianak, Friday (11/11/2022). Photo by MKRI/Ifa.

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Saturday, November 12, 2022 | 00:31 WIB

JAKARTA (MKRI)—In Indonesia’s constitutional structure prior to the amendment to the 1945 Constitution, the MPR (People’s Consultative Assembly) was the highest state institution. The 1945 Constitution pre-amendment adopted a vertical hierarchical system that were divided into the highest and high state institutions. However, after the amendment, the structure of the state institutions was changed into vertical-horizontal, where the people hold the sovereignty, the position of highest state institutions were eliminated, and checks and balances mechanism was improved.

The statement was made by Constitutional Justice Daniel Yusmic P. Foekh in a public lecture on “The Protection of the Citizens’ Constitutional Rights through Constitutional Court Decisions” on Friday, November 11, 2022 at Panca Bhakti University, Pontianak. Constitutional Justice Enny Nurbaningsih also spoke at the event.

Justice Foekh said the Constitutional Court also has an additional authority to review government regulations in lieu of laws (perppu) and disputes over regional head election until a special judicial body is formed. Since the Court handed down Decision No. 138/PUU-VIII/2009, it has never granted nor rejected any petitions on perppu. They are usually declared inadmissible because either they have been approved or rejected by the House of Representatives (DPR).

“Based on the Constitutional Court Decision No. 138/PUU-VII/2009, a perppu is needed under special circumstances, such as an urgent need to resolve legal issues quickly based on a Law where the required Law does not yet exist, creating a legal vacuum, or there is a Law but it is not sufficient and the legal vacuum cannot be overcome by making laws in the usual procedure because it will take quite a long time while the urgent situation requires swift resolution,” Justice Foekh said.

He also revealed that from 2009 to 2021, 29 perppu have been reviewed by the Court. “Most of [the petitions] were declared inadmissible, withdrawn, while some were dismissed,” he explained.

He quoted the opinions of several experts such as former constitutional justices Jimly Asshiddiqie, Maria Farida Indrati, and Bagir Manan, as well as the Constitutional Court Decision that defined a compelling crisis situation, with regard to the perppu. Based on the Decision No. 138/PUU-VII/2009, a perppu is needed in the event of an urgent needing swift resolution of a legal issues based on the law; where the required law does not yet exist, leading to legal vacuum, or where such a law exists but it is not sufficient; and the legal vacuum cannot be overcome by making a law in the usual procedure because it will take quite a long time while the urgent situation needs to be addressed

The Constitutional Court is also tasked with adjudicating disputes over the results of regional head elections, an authority exercised by the Court until the formation of a special court. Such cases, Justice Foekh admitted, proved to have very dynamic settlement, so in fact it is necessary for a special institution that focuses on resolving them.

Meanwhile, Justice Enny said that the Indonesian people should be grateful for living in a democracy that has a Constitutional Court, which is the result of the Reform.

“During the amendment to the 1945 Constitution, the debate over the institution to appeal the Constitution was extraordinarily complicated and it could not be resolved until the Supreme Court was only given the authority to appeal statutory regulations under the law against the law,” she said.

She then explained the Court’s authorities pursuant to Article 24C paragraph (1) of the 1945 Constitution: to adjudicate at the first and last levels with decisions that are final to review laws against the Constitution, to decide on disputes over the authority of state institutions whose authorities are granted by the Constitution, to decide on the dissolution of political parties, and to decide on disputes about the results of general elections.

Meanwhile, based on Article 24C paragraph (2) of the 1945 Constitution, the Court is obliged to give a decision on the opinion of the House of Representatives (DPR) on alleged violations by the president and/or vice president according to the Constitution. Meanwhile, based on Article 157 paragraph (3) of Law No. 10 of 2016, disputes over the results of regional head elections are adjudicated by the Constitutional Court until a special judicial body is formed. 

Justice Enny also talked about the Constitutional Court Decision No. 20/PUU-XVII/2019, which resolved a stagnant constitutional practice and legal system, by declaring that eligible citizens who have not been registered in the DPT (final voters list) can also use their e-KTP (electronic resident identity card) certificate issued by the Population and Civil Registry Office or other similar agencies. In addition, the registration period is set to be 7 days at the latest only for voters in certain circumstances, for example sickness, natural disasters, criminal detention, or being on duty at the time of voting. In the event that the vote count has not been completed, it can be extended without a delay for no longer than 12 hours since the end of the voting.

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

Translation uploaded on 11/14/2022 14:48 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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