Constitutional Justice Enny Nurbaningsih reading out the Court’s legal considerations of the judicial review of Law No. 2 of 2002 on the State Police of the Republic of Indonesia, Tuesday (12/20/2022). Photo by MKRI/Panji.
Tuesday, December 20, 2022 | 20:52 WIB
JAKARTA (MKRI) — The Constitutional Court (MK) dismissed the judicial review petition of Law No. 2 of 2002 on the State Police of the Republic of Indonesia, filed by Sandi Ebenezer Situngkir, an advocate, at a ruling hearing for Decision No. 104/PUU-XX/2022 on Tuesday, December 20, 2022.
“[The Court] adjudicated, declares the Petitioner’s petition inadmissible,” said Chief Justice Anwar Usman reading out the verdict alongside the other eight constitutional justices.
In its legal considerations, presented by Constitutional Justice Enny Nurbaningsih, the Court asserted that not everyone has the right to file a petition to the Constitutional Court. Only those who have a legal interest relating to their constitutional rights can, in accordance with the principle: there is interest, there is a lawsuit (point d’interet point d’action). The interest is legal interest relating to the petitioner’s constitutional rights over the enactment of the norms of a law that is being reviewed, which is formulated as an assumption of loss of constitutional rights.
According to the Court, the Petitioner was unable to explain specifically the form of loss that would potentially be suffered or suffered by the Petitioner. In this case, the Petitioner did not submit evidence or at least provided arguments regarding what form or arbitrary action was taken by members of the police and what kind of losses would be experienced by the Petitioner in connection with the absence of Kompolnas authority to supervise and examine violations by members the police as described by the Petitioner.
The court did not find the legal facts referred to. Thus, based on reasonable reasoning, it is not certain that it is certain that the loss of the Petitioner’s constitutional rights will occur.
“The loss of constitutional rights as referred to in letter c, i.e. the requirements for Kompolnas [(National Police Commission’s)] commissioner, the Petitioner could not explain the alleged loss specifically, both as an individual and as an advocate. The Court was also not convinced by the Petitioner’s argument that to become a Kompolnas commissioner one should be a government official, police’s expert, and community leader, which thus had caused specific and actual harm to the Petitioner’s constitutional rights as an individual citizen and an advocate. This is because his assumption of constitutional impairment over his legal standing relating to the enactment of Article 39 paragraph (2) of Law No. 2 of 2002 did not explain the criteria for society that he meant, so it was unclear whether he met the criteria for member of society as he intended,” Justice Enny explained.
At the preliminary hearing, the panel of justices had advised the Petitioner to revise the argument for his constitutional impairment. In addition, they provided suggestions to improve his legal standing, where he should have listed the concrete events he experienced, for example having been reported in relation to the article being requested for review.
However, until the deadline for the revised petition passed, the Petitioner did not submit the revised petition. In fact, he did not attend the petition revision hearing on November 21, scheduled for presenting the revised petition and ratifying evidence, without reason.
Based on the aforementioned legal considerations, the Court was of the opinion that the Petitioner did not have the legal standing to file the petition. Even though the Court had the authority to hear the petition, because the Petitioner did not have the legal standing to act as a petitioner, the subject matter of the Petitioner’s petition was not considered. Other matters were not considered because they were deemed irrelevant.
Lack of Checks and Balances in State Police Questioned
Petitioner of Police Law Absent at Petition Revision Hearing
The Petitioner for case No. 104/PUU-XX/2022 challenged Article 15 paragraph (2) letter k, Article 16 paragraph (1) letter l, Article 18 paragraph (1), Article 38 paragraph (2), and Article 39 paragraph (2) of the Police Law.
At the preliminary hearing, he argued that those articles did not have clear statement of purpose and legal certainty, which is a prerequisite set by the Lawmaking Law. “There are provisions in Articles 15, 16, and 18 [of the Police Law] that say that members of the State Police of the Republic of Indonesia may carry out other actions based on their own interpretation,” he said. The Petitioner believed the Police’s authority in the law was not limited and could be interpreted arbitrarily.
“The law grants the Police duties, functions, and authorities but without clear limits, when the law should be limiting and the objective and legal certainty must be clear,” he said before the panel chaired by Constitutional Justice Suhartoyo.
He also questioned the National Police Commission’s (Kompolnas) authority as it only provides recommendations and opinions to the president. Therefore, he argued, there was no checks and balances function in the Police Law.
“Although there is an internal supervisory function, in the Police Law, the Kompolnas does not have a function, whether it is a supervisory agency in the Police or not. The law only stipulates that it has an authority to provide recommendations and opinions to the president in relation to the police chief candidates and the Police budget. Therefore, the Petitioner requests that the Court make a new norm on the Police’s checks and balances, which is imperative for the Police’s performance,” he explained at the first hearing.
He also alleged that he had suffered constitutional impairment due to the enactment of Article 39 and the elucidation to Article 39 paragraph (2) in conjunction with paragraph (3) of Law No. 2 of 2002, which bars him from becoming a commissioner in the Kompolnas. The Kompolnas membership comprises three ministerial-level government officials: Coordinating Minister for Political, Legal, and Security Affairs; Minister of Law and Human Rights; and Minister of Home Affairs. This, he argued, violates the checks-and-balances function, where both the Police Chief and the ministers are appointed by the president and thus cannot supervise the Police.
Writer : Utami Argawati
Editor : Nur R.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 12/23/2022 08:02 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.