Constitutional Court (MK) held the third Constitutional Literacy Discussion (Diskusi Literasi Konstitusi or Diksi) in collaboration with the Edulaw Project on Thursday, September 19, 2024 at its library in Building 2.

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JAKARTA, MKRI Public Relations – The third edition of the Constitutional Literacy Discussion (Diksi) was held by the Constitutional Court (MK) in collaboration with the Edulaw Project on Thursday (September 19, 2024), at the MK Library, Building 2 of the Constitutional Court in Jakarta. This time, two book authors were present as speakers: Constitutional Court Registrar Mardian Wibowo, who wrote a book titled “Open Legal Policy in Constitutional Court Decisions,” and Assistant to the Constitutional Judge Zaka Firma Aditya, who authored the book “Retroactive Principles of Constitutional Court Decisions in Theory and Practice.”

In the first session, Mardian explained that when proposing formal tests, the Constitutional Court always refers to Law No. 13 of 2022 concerning the Second Amendment to Law No. 12 of 2011 on the Formation of Legislation (UU P3). He then questioned why the Constitutional Court does not refer to the 1945 Constitution or its norms. Mardian clarified that the Constitutional Court does use norms from the Constitution, but those norms do not detail how laws should be formed.

“If the Constitutional Court insists on using the norms in the Constitution, it won’t be sufficient. The Court will lack norms for testing purposes because the Constitution does not detail the processes and technicalities. For instance, you will not find in the Constitution how many plenary meetings must occur or what the quorum is; such details are absent. Therefore, the Court uses the subordinate laws directly,” Mardian stated during the event moderated by Melly Novianti from Edu Law Project.

Mardian further mentioned that explicit norms in the Constitution, which cannot be interpreted otherwise, do not give rise to open legal policies. An open legal policy only emerges when there is a regulatory void and unclear norms within the 1945 Constitution. An open legal policy can be beneficial if applied to fill legal gaps.

He pointed out that open legal policies have an arbitrary nature. One negative consequence of such policies is that the laws created may violate the hierarchy of norms. Secondly, open legal policies can lead to laws that are immune from constitutional testing.

“Because of its arbitrary nature and lack of regulation under the Constitution, such laws should not be subject to testing. This potentially leads to abuses of power by lawmakers, claiming that their actions are not regulated by the Constitution since lawmakers become the highest authority, reminiscent of the older context of the Constitution, where parliamentary supremacy prevailed,” explained the Doctor of Law from Brawijaya University.

Retroactive Nature in Constitutional Court Decisions 

During the same session, Assistant to the Constitutional Judge Zaka Firma Aditya discussed the retroactive principle in Constitutional Court decisions. Zaka revealed that Constitutional Court decisions are almost always prospective, in accordance with Article 47 of the Constitutional Court Law. Article 47 states, “Constitutional Court decisions gain permanent legal force as soon as they are pronounced in an open plenary session.” However, the Constitutional Court has made decisions that are retroactive.

Zaka cited the decision on the dispute regarding the results of the 2009 elections, specifically Decision No. 112/PUU-XX/2022, which examined the KPK Law concerning the term of KPK leaders. The applicant in this case was Nurul Ghuffron, who was the head of the KPK at that time.

“The Constitutional Court extended the term of the KPK leadership to five years. To me, this decision is retroactive because it applies to the existing KPK leaders, not future KPK leaders,” Zaka stated.

Zaka also provided several reasons why the Constitutional Court issued retroactive decisions. One reason is to protect the constitutional rights of citizens.

“There are fundamental rights that need protection. Some may wonder what needs protection, but in the eyes of the judge, there is a unique sense of justice regarding what should be protected,” he explained.

Q&A Session 

During the question-and-answer session, Dian, a student from Hasanuddin University present at the event, asked whether government regulations (perpu) are a form of open legal policy. In response, Mardian stated that perpu differs from laws categorically.

“Perpu has its own pathway. While perpu is equivalent to a law, it still stands as a government regulation below the law. However, under certain circumstances, it is treated like a law, with specific conditions. Yet, these conditions do not represent the requirements of an open legal policy, but rather those already regulated by law,” Mardian replied.

Meanwhile, Edwin Chandra, a student from Tarumanegara University, inquired about the legal basis and procedures for applying the retroactive principle in Constitutional Court decisions. He also referenced Decision No. 90/PUU-XXI/2023, which took effect immediately after it was read. In addressing this, Zaka expressed that Decision No. 90/PUU-XXI/2023 should have been prospective, not retroactive.

“Whether prospective or retroactive, there is actually no legal basis for Constitutional Court decisions. Constitutional Court decisions are merely final under Article 24C of the 1945 Constitution,” Zaka emphasized.

It is worth noting that, as part of efforts to enhance the reading culture in Indonesia, the Constitutional Court has initiated an event titled Constitutional Literacy Discussion. The Constitutional Court, through its Research and Constitutional Case Study Center and Library Management (Puslitka), in collaboration with the Edu Law Project and Rajagrafindo Persada, organizes this event as a platform to promote the Constitutional Court Library as a reference in the fields of law and constitution. This event is held monthly and can be attended by participants both in-person and online. (*)

Author          : L.A.P.
Editor           : Lulu Anjarsari P.
Translator     : Agusweka Poltak Siregar (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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