State Administration Law Students Forum (Formahan) of the Law Faculty of Hasanuddin University (FH Unhas) visiting the Constitutional Court, Wednesday (8/9/2023). Photo by MKRI/Fauzan.

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JAKARTA (MKRI) — State Administration Law Students Forum (Formahan) of the Law Faculty of Hasanuddin University (FH Unhas) visited the Constitutional Court (MK) on Wednesday, August 9, 2023. During the visit, expert assistant to constitutional justice Mohammad Mahrus Ali gave a presentation on the development of the Constitutional Court’s verdict models.

He said that in its development, the Constitutional Court not only issues verdicts where it dismisses, grants, or rejects petitions, but also where it declares a law conditionally constitutional, conditionally unconstitutional, and where it postpones the enforcement of a law.

Conditionally Constitutional

Mahrus Ali explained that the idea of the conditional constitutional verdict emerged during the judicial review petition of Law No. 7 of 2004 on Water Resources. Another example of such a decision is Decision No. 10/PUU-VI/2008 on July 1, 2008 on the judicial review of Law No. 10 of 2008 on the Election of Members of House of Representatives (DPR), Regional Legislative Council (DPRD), and Regional Representatives Council (DPD).

The conclusions of Decision No. 10/PUU-VI/2008 states that Articles 12 and 67 of Law No. 10 of 2008 were declared “conditionally constitutional” and should be read/interpreted as long as it includes the requirement of domicile in the province the Regional Representative Council (DPD) candidates represent. Mahrus Ali said the norm was not revoked, but the Court gave an interpretation that the implementation of the Law is not unconstitutional.

“The norm was not canceled, but the Constitutional Court gave an interpretation, certain conditions, so that the enforcement of the law does not contradict the Constitution,” he explained.

Conditionally Unconstitutional

The conditional unconstitutional verdict is the opposite of the conditional constitutional one. It means that the article petitioned for review is conditionally contrary to the 1945 Constitution or that it is unconstitutional if the conditions required by the Constitutional Court are not fulfilled.

“The article petitioned, when the decision was read out, was declared unconstitutional and would be constitutional if the conditions as stipulated by the Constitutional Court are fulfilled by the addressee of the Constitutional Court’s decision,” Mahrus Ali said.

In addition, the Court handed down a conditional unconstitutional verdict in case No. 91/PUU-XVIII/2020 on the judicial review of Law No. 11 of 2020 on Job Creation. This was the first time it was applied to a formal review.

In its ruling, the Court stated that the formation of the Job Creation Law was unconstitutional and not legally binding as long as it was not interpreted as “is not revised within 2 (two) years since this decision is pronounced.” The Court also stated that the Job Creation Law was still in effect until it was revised in accordance with the deadline as specified in the decision. If no improvements were made within the set deadline, it would be declared unconstitutional permanently.

Postponing the Enforcement of a Law

Next, Mahrus Ali talked about decisions where the Court postpone the enforcement of a law. To note, there is a grace period for this and the law being postponed must conform with the 1945 Constitution and other laws.

Decision No. 012-016-019/PUU-I/2006 on the judicial review of Law No. 30 of 2002 on the Corruption Eradication Commission (KPK) is such a decision. The Court gave a maximum period of three years for the KPK Law to be revised, especially in relation to the Anti-Corruption (Tipikor) Law, so that a separate law be established

The Court gave an ultimatum that if within three years since the ruling the legislatures did not comply, Article 53 of the KPK Law—which stipulated the establishment of an anti-corruption court—would no longer have binding legal force. As such, all corruption cases would have become the authority of general courts.

“However, fortunately, before three years the Anti-Corruption Law was enacted. If there had been no Anti-Corruption Law for three years, there would have been no Anti-Corruption Court until today because the Constitutional Court stated that there must be it’s a separate law; that corruption cases cannot be based on the KPK Law,” Mahrus Ali said.

Approximately 19 students joined the visit. They were accompanied by head of the State Administration Law Department Romi Librayanto.

Author       : Mimi Kartika
Editor        : Nur R.
Translator  : Tahlitha Laela/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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