The Petitioner’s legal counsel, Risky Kurniawan, at the material judicial review of Law No. 13 of 2022 on Second Amendment to Law No. 12 of 2011 on Lawmaking, Thursday (5/11/2023). Photo by Humas MK/Bayu.

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JAKARTA (MKRI) — Two students of the International University of Bintan, Albert Ola Masan Setiawan Muda and Andrew Chua, challenge the constitutionality of provisions on Law No. 13 of 2022 on the Second Amendment to Law No. 12 of 2011 on Lawmaking in case No. 44/PUU-XXI/2023. The preliminary hearing, with Enny Nurbaningsih chairing the panel, was held by the Constitutional Court (MK) on Thursday, May 11, 2023 in the plenary courtroom.

Article 96 paragraph (6) of the Lawmaking Law reads, “To fulfill the rights as referred to in paragraph (1), the legislators may conduct public consultation activities through (a) public hearings; (b) work visits; (c) seminars, workshops, discussions; and/or (d) other public consultation activities.”

Legal counsel Risky Kurniawan asserted that the Petitioners feel their constitutional rights had been harmed by the enactment of the article. He said the word “may” did not make conducting public consultation activities mandatory, but merely optional. As such, the Petitioners argued that in order to mandate public participation, the word ‘may’ should be replaced by “shall.” In more concrete terms, they made an analogy with the Job Creation Law, which the Court declared conditionally unconstitutional due to formal flaw stemming from the lack of public participation.

“In conclusion, the [word] ‘shall’ is more effective for Article 96 paragraph (6) of the Lawmaking Law because public participation in lawmaking closely relates to the values of democracy. Therefore, public participation must be optimized as is referred to in Article 28C paragraph (2) of the 1945 Constitution,” said Risky, who attended the hearing in person.

Therefore, in the petitum, the Petitioners requested that the Court grant the petition in its entirety. “[The Petitioners] appeal to the justices to declare Article 96 paragraph (6) of Law No. 13 of 2022 on the Second Amendment to Law No. 12 of 2011 on Lawmaking conditionally constitutional, insofar as the [word] ‘may’ be changed to ‘shall,’” Risky stressed.

Justices’ Advice

In response, Constitutional Justice Manahan M. P. Sitompul advised the Petitioners to review the petition’s substance starting from the Court’s authority, the background of the petition, which has not detailed the touchstones in the 1945 Constitution against the norm in question, to the petitum. “The words ‘may’ and ‘shall,’ which one is more appropriate for this norm? ‘Shall’ means all [requirements] must be met. If any one were not met, the [norm] would not be valid,” he said.

Next, Constitutional Justice Daniel Yusmic P. Foekh highlighted the evidence to support the Petitioners’ arguments for their constitutional impairment. “Are they truly related to this law? The background is not strong enough. Please list theories or a comparison with other countries regarding public participation, whose basis is possibly implemented by other countries. Laws are the legal and political products of the legislatures. If public participation is mandated, including discussion and other public consultation activities, please explain the practice,” he said.

Meanwhile, Constitutional Justice Enny Nurbaningsih advised the Petitioners to make the subject more specific. She also asked them to review the Court’s authority over the case, the Petitioners’ qualification in filing the petition, and the argument of constitutional loss due to the norm being petitioned.

At the end of the session, Justice Enny announced that the Petitioner had 14 workdays to revise the petition and to submit the revised petition to the Registrar’s Office by Wednesday, May 24, 2023 at 13:30 WIB. The schedule for the next hearing, she said, would be announced by the Registrar’s Office.

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
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

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