Legal counsel Mohammad Erzad Kasshiraghi conveying the petition’s subject matters, Thursday (2/22/2024). Photo by MKRI/Panji.

---

JAKARTA (MKRI) — Rahmawati Salam, a homemaker, has filed a material judicial review of Article 132 paragraph (1) of Law No. 5 of 1986 on State Administrative Court (PTUN) as last amended by Law No. 51 of 2009 on the Second Amendment to Law No. 5 of 1986 to the Constitutional Court (MK). The preliminary hearing for case No. on 24/PUU-XXII/2024 took place on Thursday, February 22, 2024 in the plenary courtroom.

The Petitioner believes the provision on judicial review petition to the Supreme Court on inkracht court ruling is in violation of Article 1 paragraph (3) and Article 28D paragraph (1) of the 1945 Constitution. She has given power of attorney to advocate Mohammad Erzad Kasshiraghi and student interns Fara Dilla and Annisa Nabila from Triumvirate & Co law firm.

Article 132 paragraph (1) of the State Administrative Law reads, “Against a court decision that has obtained permanent legal force, a petition for case review may be filed to the Supreme Court.”

In the petition, the Petitioner revealed that she filed a state administrative dispute petition to the Jakarta stated administrative court against the Ministry of Agrarian Affairs and Spatial Planning/head of the National Land Agency (ATR/BPN Minister). The court granted part of the petition through Decision No. 28/G/TF/2022/PTUN.JKT dated May 24, 2022.

Then, the ATR/BPN Minister appealed the ruling at the Jakarta high state administrative court (PTTUN), which affirmed the previous court’s ruling and granted the entire petition through Decision No. 171/B/TF/2022/PT.TUN.JKT dated August 16, 2022.

Following that, the Minister filed a cassation petition to the Supreme Court, but even the Supreme Court rejected the cassation petition on June 20, 2023 through Decision No. 184 K/TUN/TF/2023. On August 7, 2023, the Petitioner made an appeal to the ATR/BPN Minister to implement the inkracht Supreme Court cassation decision.

However, the Minister filed a case review petition to the ruling. The Petitioner believes Article 132 paragraph (1) of the State Administrative Court Law has harmed her constitutional rights since it allows any state administrative agency and/or official in casu the ATR/BPN Minister to file a case review against an inkracht cassation decision infinitely.

“It is unfair that within the state administrative court, state administrative agencies and/or officials are still given the opportunity to file a case review petition,” Erzad said at the preliminary hearing in the Constitutional Court.

The Petitioner said the Court must consider the current legal reality where the guidelines for cases by government agencies require case handling up to the case review level. She asserts that giving government agencies or officials the right to file a case review petition could potentially cause legal uncertainty because in practice it is only used as an excuse to delay or slow down the execution of a decision.

“As in the Petitioner’s concrete case, case review has lost its nature as an extraordinary legal remedy,” Erzad said.

In the petitum, the Petitioner requests that the Court declare Article 132 paragraph (1) of the State Administrative Law unconstitutional and not legally binding if not interpreted as “Against a court decision that has obtained permanent legal force, only individuals or civil legal entities may file a petition for case review to the Supreme Court.”

Justices’ Advice

The panel hearing was presided over by Constitutional Justices M. Guntur Hamzah (chair), Enny Nurbaningsih, and Ridwan Mansyur. Justice Enny advised the Petitioner to elaborate the contradiction between Article 132 paragraph (1) of the State Administrative Law and the touchstone in the 1945 Constitution. She reminded the Petitioner that the Court does not settle concrete cases, but legal norms that are erga omnes. The Petitioner’s case was only a path for judicial review to the Constitutional Court.

Before adjourning the hearing, Justice Guntur informed the Petitioner that she would have 14 days to revise the petition and submit it by March 6 at 09:00 WIB to the Registrar’s Office.

Author       : Mimi Kartika
Editor        : Nur R.
PR            : Andhini S.F.
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.

---