Constitutional Justice Daniel Yusmic P. Foekh giving a public lecture on “The Dynamics of Judicial Review in the Constitutional Court” to the Indonesian Christian University of Maluku, Saturday (3/18/2023). Photo by MKRI/Ilham W.M.
(MKRI) — Constitutional Justice Daniel Yusmic P. Foekh gave a public lecture on “The Dynamics of Judicial Review in the Constitutional Court” to the Indonesian Christian University of Maluku (UKIM), Ambon, Maluku Province on Saturday morning, March 18, 2023. In person, he expressed his joy for being able to deliver the lecture. He said that law is not only for law students, but all elements of society.
“I am happy that students of other faculties, and even other universities, also attend this [lecture],” he said.
He began the lecture by explaining the Constitutional Court’s position and authority. He stressed that in the 1945 Constitution, the president, the People’s Consultative Assembly (MPR), the House of Representatives (DPR), the Supreme Court (MA), and the Audit Board (BPK) are all equal, as the position of highest state institution, the MPR, had been abolished after the Constitution was amended.
He then explained the Constitutional Court’s four authority and one obligation. Outside of the authority stipulated in the Constitution, the Court also has an additional authority to review government regulations in lieu of laws (the perppu).
“The Constitutional Court is also authorized to rule on disputes over regional head election results, which had previously been the jurisdiction of courts under the Supreme Court,” Justice Foekh explained.
The Court has ruled cases relating to 29 perppus. The Court is authorized to review perppus because of their equal position to laws.
In Indonesia, the Constitutional Court’s rulings only apply to laws being petitioned. However, in several countries, Constitutional Court decisions may also apply to other laws whose provisions are similar to laws being petitioned. There have been talks in society about the impact of Constitutional Court decisions over norms in other laws that are similar to norms in laws petitioned.
Formal and Material Judicial Review
Justice Foekh also explained that laws can be reviewed formally and/or materially. A formal judicial review concerns the lawmaking process and other matters outside of the material review.
“What the petitioner questions would be the inappropriate lawmaking process that defies the procedure,” he explained.
Meanwhile, material judicial review concerns the substance of the law deemed unconstitutional, which could be the article, paragraph, and/or any part of the law.
The formal judicial review has a 45-day deadline since the law is promulgated in the State Gazette. If a certain law is entered into force today, he said, it can only be petitioned until 45 days later.
“The material judicial review has no deadline. So, laws that have been in effect for decades are still petitioned today,” he revealed.
If a formal judicial review petition is granted, the entire law will be declared not legally binding and unconstitutional. In contrast, only parts petitioned materially will be declared so.
Next, Justice Foekh explains that those who can file a petition are individual citizens, customary law communities, private and public legal entities, as well as state institutions. “Petitioners and respondent can be assisted or represented by legal counsels, while private and public legal entities can be assisted by counsels or appoint proxies. Anyone can be informants. In judicial review cases in the Constitutional Court, the House and the president actively offer testimonies as legislatures,” he explained.
He added that in a judicial review case, the president and the House are not adversaries, but legislatures who act as informants. This is what sets these cases apart from civil cases.
Legal counsels do not have to be advocates but must be familiar with the procedural law in the Constitutional Court and able to assist the litigants after submitting a letter to the Court. This is to facilitate access to justice for those who cannot afford advocates.
Justice Foekh added that litigating in the Constitutional Court is different from doing so in general other courts. “This is because there are differences relating to the Court’s authority. Different from in civil cases, a case in the Constitutional Court is not called a lawsuit, but a petition, because the case is for public interest, and not contentiosa cases,” he said.
He stressed that advocates must be aware of procedural law in order to represent the petitioners. In order to file a judicial review petition against a certain law, the petitioners must argue their constitutional impairment, which is the violation of rights that the 1945 Constitution has granted them due to the enactment of the law.
Format of Petition
Justice Foekh also explained the format of a judicial review petition: the petitioner’s profile, the Court’s authority, the petitioner’s legal standing, the posita, and the petitum. The petition can be filed online or in person.
He then explained the proceedings of the Court, starting with a panel preliminary examination hearing, presided over by three justices who must advise the petitioner, which the petitioner and/or their legal counsel attend. It is followed by a petition revision hearing with a panel. If the case continues, it will advance to the plenary examination hearings, where the justices hear the testimonies of the experts, the House, the MPR (People’s Consultative Assembly), relevant institutions, and witnesses. The proceedings conclude with a ruling hearing.
The Court’s decisions are erga omnes, meaning applying to all. Although the petition is filed by an individual or individuals, the validity of the decision is general and affects the law in Indonesia. The Court’s decision is also final and binding, meaning that there will be no further legal action available after it.
In addition, it can be enforced on a conditional basis. This means that the norm would not be unconstitutional only if interpreted in a way that the Court dictates. In contrast, when the Court declare a norm conditionally unconstitutional, it is unconstitutional if it is not interpreted in a way that the Court dictates
Technological Advances
Justice Foekh also talked about technological advances that facilitate litigation in the Constitutional Court. Its hearings are open to public as they are livestreamed on its official YouTube channel. This, he said, is in line with the Court’s vision for swift, simple, and economical proceedings.
In response to the participants’ questions on the Court’s decisions on the Job Creation Law, he urged them to view those decisions on the Court’s website. He added that the Job Creation Perppu (Government Regulation in Lieu of Law) was also being reviewed at the moment.
Author : Utami Argawati
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
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.
Saturday, March 18, 2023 | 17:56 WIB 128