Constitutional Justice Enny Nurbaningsih chairing and opening the material judicial review of the Supreme Court Law, Monday (1/16/2022). Photo by MKRI/Ifa.

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Monday, January 16, 2023 | 16:49 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) held a preliminary hearing to review Law No. 48 of 2009 on the Judiciary and Law No. 14 of 1985 in conjunction with Law No. 5 of 2004 in conjunction with Law No. 3 of 2009 on the Supreme Court on Monday, January 16, 2023 in the plenary courtroom. The petition No. 3/PUU-XXI/2023 was filed by retired civil servant Ihda Misla.

The Petitioner challenge Article 24 paragraph (2) of Law No. 48 of 2009, which stipulates that a judicial review decision cannot be reviewed, and Article 66 paragraph (1) of Law No. 14 of 1985 in conjunction with Law No. 5 of 2004 in conjunction with Law No. 3 of 2009 that a judicial review petition can only be filed one time.

At the preliminary hearing chaired by Constitutional Justice Enny Nurbaningsih, legal counsel Henny Aliah Zahra explained that the Petitioner had submitted an extraordinary legal remedy of judicial review petition, which had ruled by the Corruption Court at the Banda Aceh District Court through Decision No. 55/Pid.SusTPK/2019/PN.Bna in conjunction with Decision No. 763/PK/Pid.Sus/2022 dated August 4, 2022.

“Law No. 48 of 2009 on the Judiciary stipulates that a judicial review decision cannot be reviewed [and] the 1945 Constitution stipulates that a judicial review can only be carried out once. The principle of rule of law guarantees the citizens’ constitutional right to fight for justice and is contrary to responsive and progressive law. So, to seek justice there should be no restrictions,” said Henny.

Henny said that in criminal law, justice takes precedence over legal certainty, so a judicial review petition should be able to be filed more than once for seeking justice, even though legal certainty is ignored. On the other hand, judicial review clearly is irrelevant to legal certainty.

The Petitioner also compared Indonesia to the United States, where judicial review of cases is a common practice. He also said that restriction on judicial review petitions would be more relevant on crimes punished by imprisonment or fine but not on criminal offenses punishable by death. Therefore, in the petitum, the Petitioner requested that the Court declare Article 24 paragraph (2) of Law No. 48 of 2009 and Article 66 paragraph (1) of Law No. 14 of 1985 in conjunction with Law No. 5 of 2004 in conjunction with Law No. 3 of 2009 unconstitutional and not legally binding.

Justices’ Advice

In response to the petition, Constitutional Justice M. Guntur Hamzah advised that the format and arrangement of the petition be improved. Then, he also asked the Petitioner to study past Constitutional Court decisions, specifically 11 of them on Article 24 paragraph (2) and 2 on Article 46, which were dismissed and rejected.

“I’d like to say that some of the Constitutional Court’s decisions can be used as references for study, but the challenge is to find something different from what has been decided by the Court. If the argument or posita is the same [as that of previous petitions], I’m worried the petition would be the same as previous ones. Therefore, this needs to be studied properly because the Judicial Law has been reviewed by the Court [frequently],” he said.

Before concluding the session, the panel of justices gave the Petitioner 14 workdays to revise the petition.

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

Translation uploaded on 1/18/2023 10:46 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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