Constitutional Justices Arief Hidayat, Suhartoyo, and Daniel Yusmic P. Foekh chairing the petition revision hearing of the judicial review hearing of the Supreme Court Law, Monday (11/28/2022). Photo by MKRI/Panji.
Monday, November 28, 2022 | 18:00 WIB
JAKARTA (MKRI)—The Constitutional Court (MK) held another judicial review hearing of Law No. 5 of 2004 on the Amendment to Law No. 14 of 1985 on the Supreme Court on Monday, November 28, 2022. The hearing for case No. 107/PUU-XX/2022 was filed by Karminah, a housewife from Semarang, Central Java. She challenges 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.
At this second hearing, the Petitioner’s legal counsel Pho Iwan Salomo conveyed several revisions to the background of the petition. The provision, he said, only regulate officials in the judiciary who can postpone execution. In other words, only the chief judge of the court of first instance up to the appellate court can do so, and if the chief judge is unable to do so, the deputy chief judge can. However, in practice, this authority is often abused by officials of the judiciary by delaying the execution arbitrarily. This, Iwan added, is against the law.
He explained the instance where the Petitioner paid a sum of money for the stipulation of the execution of the Religious Court of Semarang No. 002/Pdt.Eks/2016/PA.Smg dated September 1, 2016 in conjunction with the divorce ruling of the Religious Court of Semarang No. 1086/Pdt.G/2006/PA.Smg dated January 4, 2007, which have binding legal force (inkracht) and was registered to case No. 4/Pdt.Eks/2021/PA.Smg dated August 6, 2021, which has come to executory seizure.
“However, an executory auction could not be carried out. Finally, the deputy chief judge of the Semarang Religious Court exercised discretion in the form of the Stipulation of Postponement of Execution No. 4/Pdt.Eks/2021/PA.Smg dated November 15, 2021 on the grounds that there was Lawsuit No. 3177/Pdt.G/PA.Smg dated November 15, 2021 filed by the Execution Respondent, who in fact is a foreign citizen, and was announced on January 10, 2022 until the lawsuit has permanent legal force. While the law has regulated the stay of execution, only in cases of resistance is stay of execution allowed,” said Iwan virtually alongside the Petitioner.
Iwan also explained the Supreme Court regulations have often been misused by judicial officers. The Petitioner also filed a complaint to the Judicial Commission, which oversees the Supreme Court. However, despite the Petitioner and the Semarang Religious Court were investigated, there was no more follow-up. The Petitioner had filed a petition to the state administrative court, but it was dismissed on the grounds that the stay of execution was a decision and/or action based on the examination of a judicial institution based on statutory legislation.
“The Petitioner also filed a complaint to the Ombudsman, who decided that it was not within their jurisdiction. Therefore, the Petitioner had to seek justice in the Constitutional Court, since the Supreme Court’s regulation on the stay of execution has, in practice, become very powerful,” he explained.
Also read: Housewife Petitions Supreme Court Provision on Stay of Execution
At the preliminary hearing, 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.
Writer : Sri Pujianti
Editor : Nur R.
PR : Raisa Ayuditha
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 11/29/2022 15:16 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.