The judicial review hearing of the Supreme Court Law petitioned by a housewife from Semarang, Central Java, Tuesday (11/15/2022). Photo by MKRI/Ilham W. M.

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Tuesday, November 15, 2022 | 16:17 WIB

JAKARTA (MKRI)—The Constitutional Court (MK) held the preliminary hearing for the material judicial review of Law No. 5 of 2004 on the Amendment to Law No. 14 of 1985 on the Supreme Court on Tuesday, November 15, 2022 in the plenary courtroom. The hearing for case No. 107/PUU-XX/2022 was filed by Karminah, a housewife from Semarang, Central Java. She challenged Article 79 and Article 31 paragraph (1) of the Supreme Court Law and their elucidation. The hearing was presided over by Constitutional Justices Arief Hidayat (panel chair), Suhartoyo, and Daniel Yusmic P. Foekh.

Article 79 of the Supreme Court Law reads, “The Supreme Court shall be able to set forth further matters required for the smooth administration of justice if there are any matters not yet sufficiently provided herein.” The elucidation reads, “If there are deficiencies or legal vacuum in the course of justice in some cases, the Supreme Court has the authority to make provisions as a supplement to fill the vacuum. By this Law, the Supreme Court has the authority to determine the arrangement on the settlement of a matter that has not yet or is not provided for in this Law.”

Article 31 paragraph (1) of the Supreme Court Law reads, “The Supreme Court shall have the authority to carry out material review only on legislation under the Law against the Law.” Its elucidation reads, “This article sets forth the right of the Supreme Court to conduct material review. The Supreme Court has the right to review any regulation subordinate to the Law whether or not they comply with legislation of a higher level. In this case, the regulations issued by the Supreme Court are distinguished from the regulations drawn up by legislators. The administration of justice referred to in this Law is only part of the overall procedural law. Therefore, the Supreme Court will not interfere with and go over regulations on the rights and obligations of citizens in general and will not regulate the nature, force, means of proof and the assessment or the distribution of the burden of proof.”

The Petitioner’s legal counsel Pho Iwan Salomo said Article 79 of the Supreme Court Law has given the Supreme Court unlimited discretion to create regulations while its discretion is not supposed to surpass the Law. The Petitioner also revealed the Decree of the Chief Justice of the Supreme Court (SK KMA) No. KMA/032/SK/IV/2006 dated April 4, 2006 on a stay of execution, which surpassed the Law.

The Petitioner also revealed that she had filed a petition for execution to the Religious Court of Semarang on the stipulation of the execution of the Religious Court of Semarang No. 002/Pdt.Eks/2016/PA.Smg dated September 1, 2016. Despite having reached the seizure stage, the execution was suspended due to a decree of the deputy chief judge of the Religious Court of Semarang. The Petitioner believes the stipulation of the stay of execution was arbitrary, thus invalid. She believes the deputy chief judge not to have the authority for such discretion.

Therefore, in the petitum, the Petitioner requested that the Court declare Article 79 and its elucidation unconstitutional and not legally binding conditionally insofar as not interpreted to mean provisions on stay of execution, and declare Article 31 paragraph (1) unconstitutional and not legally binding conditionally insofar as not interpreted as Supreme Court regulations.

Contrast and Implementation

Constitutional Justice Suhartoyo advised the Petitioner to elaborate her legal standing in the case in relation to the concrete case that she was involved in and to observe the Constitutional Court’s decisions on the articles being petitioned.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh said the stay of execution had been challenged by the Petitioner to the state administrative court (PTUN), the Judicial Commission, and now the Constitutional Court. He emphasized that the Constitutional Court has limited discretion as per Article 24C paragraphs (1) and (2) of the 1945 Constitution. Therefore, the Petitioner must explain that the provisions being petitioned is the Supreme Court Law and not Supreme Court regulations. “Since the Constitutional Court does not adjudicate the implementation of a norm,” he said.

Next, Constitutional Justice Arief Hidayat highlighted the posita, in which the Petitioner contrasted Article 79 and Article 31 paragraph (1) of the Supreme Court and their elucidation, so her elaboration of the concrete case only exemplified that the a quo articles are unconstitutional.

“Which parts of the a quo articles are against the touchstones? Explain the contrast in terms of the principles of justice and law, and explain the concrete case with articles in the 1945 Constitution so that the contrast is obvious. It can be through theories, legal comparison, not only concrete case. If it is only through a concrete case, the contrast is not clear. The Constitutional Court adjudicates contrasting norms, not concrete cases,” he explained.

Before concluding the session, Justice Arief informed the Petitioner that she had until Monday, November 28 at 13:30 to submit the revised petition to the Registrar’s Office. 

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Raisa Ayuditha
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/16/2022 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.

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