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Sunday, July 1, 2007

Revised Questioning the Constitutional Court Act

By: Firdaus Arifin
Writer: Lecturer Constitutional Law Section and Secretary of Constitutional Studies Center Faculty of Law, University of Pasundan, Bandung, West Java, Indonesian.
Published by: The Daily Seputar Indonesia, 18 Januari 2007.

IN THE PAST FEW DAYS, the performance of the Constitutional Court (MK) as a state institution which acts as interpreter and guardian of the constitution (the guardian and the interpreter of the constitution), a lot of glare from various circles, including the House of Representatives (DPR).

In fact, in its development, a sharp spotlight on the performance of the Court House estuary and the birth of the idea crystallized in the House to revise the Law No. 24/2003 on the Constitutional Court. When examined, the intention of Parliament to revise the Law on the Constitutional Court, is not without foundation and a strong argument. At least, the decision of the Constitutional Court issued a controversial, especially in terms of conduct judicial settlement (judicial review) of the Act against the 1945 Constitution, can be a strong reason for Parliament to revise the Constitutional Court Law.

Keep in mind, throughout 2006, there are at least three decisions of the Constitutional Court which caused controversy among the public and decision DPR.Ketiga, first, Constitutional Court Decision No. judicial 003/PUU-IV/2006 of Law No. 31/1999 as amended Act No 20/2001 on the Eradication Corruption.MK in the decision states that the explanation of Article 2 paragraph 1 of Law No. 31/1999 jo UU No. 20/2001 against the 1945 Constitution.

In his view, the Court considered the explanation section has been expanded category element acts against the law. The concept of illegal material which refers to the unwritten law is a measure of uncertainty. Therefore, the article is contrary to the principle of legal certainty (rechtzakerheid) and the principle of justice (rechtvaardigheid).

Second, the Constitutional Court Decision No. 005/PUUIV / 2006 on judicial review of Law No. 22/2004 on the Judicial Commission. In its decision, the Constitutional Court to cancel a number of articles contained in Law No. 22/2004, in particular the provisions relating to the functions, duties and authority of the Judicial Commission (KY) in the case to supervise the judges for being in conflict with the Constitution of 1945. Third, the Constitutional Court Decision No. judicial 006/PUU-IV/2006 of Law No. 27/2004 on the Truth and Rekonsiliansi Commission (TRC).

In its decision, the Court stated that Law No. 27/2004 against the 1945 Constitution and shall have no binding legal force. Now, before the revision of the Constitutional Court Law, there are some basic things that really need (urgent) to be included in the draft revision of the Constitutional Court Act, among other things, first, revise the rules governing the duties and powers of the Constitutional Court. In this regard, the revision made in the form of additional duties and powers of the Constitutional Court who had been there, to include rules governing the granting authority to the Court to decide constitutional complaints (constitutional complaints) filed against the rulers of the people.

As is known, for this Court had no authority to decide on constitutional complaints such as the Constitutional Court of Austria, Italy, Germany, and others. Second, the formulation of Article 65 of Law No. 24 / 2003 which states that prohibit the Supreme Court to become parties to the case of inter-state disputes over the authorities should be abolished, because this provision is illogical and discriminatory.

In addition, in the case of inter-state disputes over the authorities, who becomes the object of dispute is not a Supreme Court decision related to a specific case, but the things that concerns the authority the Constitution granted the Supreme Court in 1945. Third, related to the dispute settlement mechanism inter-state authority. Need to make rules governing the detailed and strict about the state institutions that can become parties (the subject of law) in the inter-state disputes over the authorities.

True, Article 24C Paragraph (1) of the 1945 Constitution and Article 10 paragraph (1) letter b Law No. 24/2003 has given restrictions that state agencies may be subject to legal authorities in case of inter-state disputes is that the authority of state institutions provided the 1945 . But when we read and listened to the formula contained in the 1945 Constitution, it is difficult to know and distinguish between state institutions whose powers are explicitly granted by the 1945 state institutions whose powers not explicitly granted the 1945 Constitution.

This is very important to be done to prevent confusion on the understanding that state agencies may be subject to the authority of law in inter-state disputes and to facilitate the public in identifying and understanding the state institutions that exist today. Fourth, the rules should be firmly set on a prohibition on the Court to decide a case out of about a proposed or requested the applicant, so the event of a decision that goes beyond the things that were asked and asked (ultra petitah) as happened in the decision regarding Law KY judicial and KKR Law does not happen again.

Fifth, it is necessary improvements to the law of the Court show that there is so far. For that, need to be rules that regulate in detail and comprehensively about the procedural law of the Constitutional Court. Sixth, one main thing to note revised DPR in the Constitutional Court Law, namely synchronization with the Constitution Act 1945 and other related, particularly KY Law and Law on the Supreme Court.

This should be done as prevention (preventive) to avoid conflict and overlap between the substance and the Law relating to the judicial power and authority to prevent disputes between state institutions which exercise power in the judicial field. If not, the goal of realizing a relationship between a harmonious state institutions based on principles of law and oversee and counterbalance each other (checks and balances) will only be a utopian for the Indonesian nation.









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