Justino Halomoan Sinaga as Petitioner at the ruling hearing for the material judicial review of the Criminal Procedure Code and the Advocate Law, Thursday (8/29/2024). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — On Thursday, August 29, 2024, the Constitutional Court (MK) decided that the material judicial review petition of Law No. 18 of 2003 on Advocates and Law No. 48 of 2009 on the Judicial Authority was inadmissible. The petition was filed by Justino Halomoan Sinaga, an entrepreneur.

“[The Court] declared the Petitioner’s petition inadmissible,” said Chief Justice Suhartoyo delivering Decision No. 98/PUU-XXII/2024.

In its legal opinion, delivered by Constitutional Justice Daniel Yusmic P. Foekh, the Court stated that it had examined the petition at a preliminary hearing on August 7. As per Article 39 paragraph (2) of the Constitutional Court Law and Article 41 paragraph (3) of the Constitutional Court Regulation (PMK) No. 2 of 2021, it had advised the Petitioner to revise the petition and clarify several matters, such as the Court’s authority, his legal standing, the reasons for the petition (posita), and the things he requested (petitums) following the standard format as detailed in the PMK.

“Then, on August 19, 2024, the Petitioner conveyed the revisions to the petition to the Court and had it re-examined at a petition revision hearing on August 22, 2024. After the Court examined the Petitioner’s petition in detail, especially the format, it has met the standard format as stipulated in Article 31 paragraph (1) of the Constitutional Court Law. However, upon further observation, the reasons for the petition (posita) the Petitioner conveyed did not have clear legal arguments, especially the contradiction between the norms petitioned for review and the touchstones in the 1945 Constitution,” Justice Foekh explained.

Therefore, the Court could not understand the argument for the unconstitutionality of the articles, since the Petitioner had explained the concrete case he experienced and his disappointment more, which was more an issue of norm implementation. As such, based on those legal facts, it was difficult for the Court to judge the connection between the unconstitutionality of the norms petitioned and the Petitioner’s constitutional rights guaranteed by the 1945 Constitution. This is because the key condition for an article and/or paragraph of a Law to be declared unconstitutional and not legally binding is that is should be proven and declared so.

Unusual Petitums

Justice Foekh emphasized that petitums 2-7 were unusual. In petitum 2, the Petitioner requested that the Court change the phrase “justice seeker” in Article 2 paragraph (4) of Law No. 48 of 2004 to “victims” and the phrase “other parties” to “law mafia.” In addition, the Petitioner had mistyped the year of the Law.

“In petitum 3, essentially, based on Article 5 paragraph (1) of Law No. 48 of 2009 [the Petitioner] requested the Court to establish a clean and authoritative court and to establish a law enforcement commission and a legal resilience council to oversee and fight the law mafia. In petitum 3, essentially, [the Petitioner] requested the Court to interpret the phrase “all obstacles” in Article 4 paragraph (2) of Law No. 48 of 2009 to read “planned legal crimes in court” so that the Constitutional Court needs to establish a constitutional inspectorate or constitutional police for procedural justice,” Justice Foekh explained.

In petitum 5, the Petitioner requested the Court to change the phrase “other parties” in Article 3 paragraph (2) of Law No. 48 of 2009 to “organized (group) mafia” so that the punishment for it doubles. In petitum 6, based on Article 1 point 1 of Law No. 48 of 2009, the Petitioner requested the Court to implement the order of Article 5 paragraph (1) of Law No. 48 of 2009, i.e. for the constitutional justices to implement constitutional justice to deliver law and justice for the Petitioner. Otherwise, he would file a petition to the Constitutional Court Ethics Council (MKMK).

Meanwhile, in petitum 7, the Petitioner requested the Court to change the phrase “free” in Article 15 of Law No. 18 of 2003 to a phrase interpreted as the practice of organizing advocate procedural law in the judiciary, so that House of Representatives (DPR) shall prepare advocate procedural law based on judicial power.

Such petitums do not meet the judicial review procedure as stipulated in Article 10 paragraph (2) letter d of PMK No. 2 of 2021. One of the conditions of a petitum in that provision is that the norm petitioned must be said to have violated the 1945 Constitution and not legally binding, which was not mentioned in the petitums at all.

As such, due to the unclear posita and unusual petitums, the Court had no doubt to declare them obscure, and thus the petition was obscure as well. The Court did not consider the petition further.

Also read:

Entrepreneur Questions Complex, Lengthy, Costly Judicial Process

Petition Against Criminal Procedure Code and Advocate Law Revised

Author         : Utami Argawati
Editor          : N. Rosi
PR              : Fauzan Febriyan
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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