Number 164 • October 2020 i 5th and 6th Floor, Constitutional Court Building Jl. Medan Merdeka Barat No. 6 Jakarta Pusat ii Number 164 • October 2020 Number 164 • October 2020 Editorial Greetings DIRECTING BOARD: Anwar Usman • Aswanto • Arief Hidayat Enny Nurbaningsih • Wahiduddin Adams alam jumpa buat para pembaca Majalah Konstitusi. Tak terasa, kita sudah Suhartoyo • Manahan MP Sitompul memasuki bulan kesepuluh tahun ini. Meski pandemi melanda, namun Saldi Isra • Daniel Yusmic Pancastaki Foekh semangat bekerja semua pegawai Mahkamah Konstitusi termasuk Tim DIRECTOR: S Media MK tak pernah surut. M. Guntur Hamzah Belakangan, hampir semua instansi pemerintah menerapkan pola shift EDITOR IN CHIEF: Work From Home (WFH) dan Work From Office (WFO). Demikian pula Mahkamah Heru Setiawan Konstitusi dalam menjalankan aktivitas sehari-hari. Kegiatan Bimbingan Teknis DEPUTY EDITOR-IN-CHIEF: Hukum Acara Perselisihan Hasil Pilkada Serentak pun digelar secara virtual. Fajar Laksono Suroso Selain itu digelar rapat pleno bagi gugus tugas untuk penanganan perselisihan MANAGING EDITOR: hasil Pilkada Serentak 2020 Mengingat Pilkada Serentak 2020 tinggal beberapa Mutia Fria Darsini bulan. EDITORIAL SECRETARY: Majalah Konstitusi Edisi Oktober 2020 menyajikan beragam informasi. Tiara Agustina Baik berita ruang sidang, berita nonsidang, serta rubrik-rubrik khas lainnya. Satu EDITOR: lagi, penyampaian informasi mengenai Mahkamah Konstitusi juga dilakukan Nur Rosihin Ana melalui media sosial seperti facebook, instagram maupun twitter yang dikemas Nano Tresna Arfana • Lulu Anjarsari P dengan apik dan artistik. REPORTER: Kita berharap, semoga pelaksanaan sidang penanganan Perselisihan Hasil Ilham Wiryadi • Sri Pujianti Pilkada Serentak 2020 yang jatuh pada tahun depan akan berjalan lancar, damai Yuniar Widiastuti dan memberikan keadilan. Semoga! Panji Erawan Utami Argawati • Bayu Wicaksono CONTRIBUTOR: Pan Mohamad Faiz Bisariyadi Luthfi Widagdo Eddyono Wilma Silalahi Paulus Rudy Calvin Sinaga Kexia Goutama

INTERNATIONAL AFFAIRS Sri Handayani Immanuel Hutasoit Sherly Octaviana Wafda Afina

PHOTOGRAPHER: Gani • Ifa Dwi Septian VISUAL DESIGN: Rudi • Nur Budiman • Teguh COVER DESIGN: Herman To

DISTRIBUTION: Utami Argawati

EDITOR’S ADDRESS: Gedung Mahkamah Konstitusi Republik Indonesia Jl. Medan Merdeka Barat No. 6 Jakarta Pusat Telp. (021) 2352 9000 • Fax. 3520 177 Email: [email protected] @officialMKRI @officialMKRI Mahkamah Konstitusi RI mahkamahkonstitusi Website: www.mkri.id

Number 164 • October 2020 1 TABLE OF CONTENTS

6 MAIN REPORT

EDITORIAL GREETINGS 1 EDITORIAL 3 MAIN REPORT 6 CASE FLASH 16 ACTION 20

THE AUTHORITY OF THE MINISTER OF FINANCE TO APPOINT THE CHAIRMAN OF THE TAX TRIBUNAL IS ADMINISTRATIVE ONLY The authority of the Minister of Finance to propose candidates for Chairman and Deputy Chairman of the Tax Court is considered to obscure the understanding of independent judicial power. The involvement of external parties of the court in choosing leadership has the potential to interfere with independence. Tax Court Judges must be free to determine their own leadership without involving the Ministry of Finance. The involvement of the Minister of Finance is only administrative in nature to follow up on the results of the election for the leadership of the Tax Court.

20 ACTION

THE CONSTITUTIONAL COURT WINS THE THE UNQUALIFIED OPINION ( WTP) OPINION AWARD 10 TIMES IN A ROW

2 Number 164 • October 2020 EDITORIAL

EX AEQUO ET BONO hroughout October 2020, the law and politics have Including the commitment to accept whatever the decision shown interesting dynamics. Demonstration, joint is, if the Constitutional Court has a different standard of approval of the The House of Representatives and the justice than the Petitioner wants. In other words, if you have President on the Job Creation Bill. The two poles of the taken a case against the Constitutional Court, then whoever Tnarrative are formed in such a way. On the one hand, it is said, is, must have a mentality that the decision is ‘rejected’, the bill is intended for the good that is built for progress. On ‘unacceptable’, and at the same time ready to be ‘granted’. the other hand, objections were voiced because they thought Don’t just prepare to be “granted” it. Do not then, because it the formation process and its materials were problematic, was not granted, then deny the ex aquo et bono comment, which could potentially harm the rights of citizens. refuse and even more so shout that the Constitutional Court In the midst of this narrative battle, various aspirations has acted unfairly. Also, do not cover up the inability to argue emerged. From the first narrative, an appeal was born that convincingly in court with a narrative of scapegoating anyone. those who feel disadvantaged or dissatisfied with the Job To find justice, it is certain that the Court will dig from Creation Bill take the available route, namely the constitutional any source. That is the full authority of the Court. For that, judicial review route in the Constitutional Court. From the what can be done, the Court opens and facilitates all public second narrative, opinion is divided. There are those who access to participate in the trial process. This is in line with are ready to take him to the Court, but there are those who the statement of Ray M. Doubles (1965),”A trial is a public do not want the mechanism. So, what is being demanded event. What transpires in the courtroom is public property is that the President immediately stipulates a perpu to . Thus, it is the public’s right to know that judges and all revoke the Job Creation Law shortly after it is promulgated. court officials are responsible for the trials that are their As aspirations and opinions, both are right to be called out duty to be carried out in a fair and trustworthy manner. within the corridors of law and democracy. And most importantly, the law is enforced Each of them has an argument. Bringing fairly and correctly. This means that the the Job Creation Law to the Constitutional trial may be accessed openly as a form of Court means using the lanes opened and fulfillment of public rights. The trial may be provided by the constitution. Meanwhile, broadcast by the media as case handling demanding the President to issue a publicity. Doubles said, as long as there is perpu is a political route that also has open space for public access, it is hoped that precedents. In the past, President SBY there will be no arbitrary and despotic trial. had issued a perpu to revoke the latest At the trial of the Constitutional Court, Regional Head Election Law which was at least the public could witness and listen just passed. This step was taken after to the argumentative battles presented hearing and witnessing the response to by all parties involved. In accordance with widespread public rejection of the law in the principle of audi et alteram partem, the question. Now, the conditions are almost statements of all parties, whether it is the the same. The Job Creation Law reaped Petitioner, Law Formers, or Related Opinions a reaction. The difference is that there is are heard in a balanced manner. From the a kind of opinion framing that taking the arguments and facts that were raised in the effort to the Constitutional Court is useless trial process, among other things became the and will not change the situation. At this basis for the Constitutional Court’s decision, point, it is important to put a common in addition to the evidence and conviction of understanding on the legal building that the judge. Even though it was opened in such was built and agreed upon according to the 1945 Constitution. a way,does not mean giving the right or allowing anyone, Against that condition, it seems aand bad traditions are including the mass media to involve themselves too far in still practiced. People like to comment outside the court on a the trial through opinions outside the trial If it has become case. They like to go too far in analysis, even with a tone that a case, all parties should refrain from lust from commenting ‘interferes’ with the judge. In fact, it seems to have preceded just for popularity. Respect and monitor the process. There the ongoing judicial process. The objective prediction may is no need to create a provocative narrative that is cloudy be fine. The problem is provocative predictions that tend and negates the process that is or will be running. If you to be insinuative. The Court is only said to be fair when the feel that you have an interest in the case, ask yourself to decision is what it wants. If the decision is different, that be officially involved in the dialectic in the courtroom by means the Court is unfair. If that happens, it is not the law submitting yourself as a Related Party. It will be more elegant. and democracy that are being or are about to be enforced. Finally, it needs goodwill, contribution, and collective But the mobocracy, the mob that imposes their will. awareness of all parties in this matter. The country of India is a Mindset which shouldn’t be about winning or losing. state of law. One of the prerequisites for establishing a rule of In the Constitutional Court, what you want to seek and find law is respect for court decisions, including the Constitutional is justice. All important parties understand that in every Court decision. So, it is important from the beginning, from petition for judicial review, at the end after the petitum, now on to have the understanding and courage to respect the sentence is always contained: If the Panel of Judges the process and accept awhichever will be decided by the decides otherwise, ask for the fairest possible decision (ex Constitutional Court. After all, all trials have been widely aquo et bono). The sentence is meaningful and has profound opened. Want anything else? That is the rule of law that has implications. The Petitioner consciously entrusted the been agreed upon to enforce. Greetings of the Constitution! Constitutional Court completely to adjudicate the legal issue.

Number 164 • October 2020 3 Window GIDEON I D.G.Palguna

“Because one man sat down and wrote a letter, no felony defendant need ever fear facing a court alone. Gideon v. Wainwright extended the law’s protection to all. More than that, it gave justice a better name “ (Because a man sits down and writes a letter, no accused criminal should be afraid to face trial alone. The decision in the Gideon v. Wainwright case has extended legal protection to everyone. Moreover, the decision in that case has provided better name justice). Collin Evans, Case resume writer Gideon v. Wainwright.

right up to the US Supreme Court June 3, 1961. A policeman who was which started from a letter which on patrol in Panama City, Florida, turned out to fundamentally change saw the doors of the Bay Harbor the US criminal justice system. What’s Poolroom open. After entering, the that letter? Although written only in police found a cigarette machine and pencil and in terrible handwriting on a jukebox that had been uncovered five sheets of double folio lined paper, (stolen). Eyewitness accounts led to the letter was not just any letter but the arrest of Clarence Earl Gideon, a petition for writ of certiorari. So, it’s a homeless middle-aged man who no kidding. In simple terms, a petition sometimes worked odd jobs helping for writ of certiorari can be defined as out in the area. Gideon was accused “an Petition submitted by a person of breaking into the building by force or party to the Supreme Court of the (breaking and entering). It was a minor United States of America to be pleased crime under Florida state law. Gideon to examine a final decision on the case maintained his innocence. During the ideon. In full, Clarence Earl of that person or party.” If a petition trial, Gideon was not accompanied by Gideon. It was the name for certiorari is accepted by the United legal counsel. He also asked the judge of the boy Collin Evans States Supreme Court, meaning that who tried him to provide legal advice described sitting down and the Supreme Court is pleased to hear because economically, he could not writing the letter. He’s not the petition, the Court will then issue afford legal advisory services. Florida’s an important person. Just a bum having G an order called a writ of certiorari (often court of first instance rejected the an unfortunate accident: being in the abbreviated as certiorari or just cert), request because — under Florida wrong place at the wrong time. If you namely an extraordinary order directed state law — the provision of legal have had a chance to “run into” a book to a subordinate court to submit the counsel to incapacitated defendants edited by Edward W. Knappman, Great minutes of a case (cq the case for which only applies if a person is convicted American Trials, Vol 2: 1950-2001 the petition for certiorari is requested) of an offense punishable by death. (Second Edition, Gale Group-Thomson for review by the Supreme Court. This Meanwhile, the charges against Learning, 2002), turn to pages 794- is what happened in the case of Gideon. Gideon were only minor crimes. 797. There, under the heading “Clarence The story which later gave birth Long story short, the eight Earl Gideon Trials: 1961 & 1963,” you to a decision which is considered as witnesses who were invited to will find a resume of the story of the one landmark decisionsThe history testify regarding Gideon’s innocence, “heroic” homeless man named Gideon of the Supreme Court of the United were unable to convince the judge. in fighting for his constitutional rights States begins on the morning of In the trial, which took less than a

4 Number 164 • October 2020 day to complete, Gideon was found Clauseof the Fourteenth Amendment day the retrial was held. So Gideon guilty. Three weeks after the guilty to the United States Constitution. went back to face Judge Robert decision was handed down, Judge This is where the petition for certiorari L. McCrary, Jr. in a courtroom in Robert L. McCrary, Jr. sentence the story in handwriting starts. The reason Panama City. The difference is, this skinny vagrant with thick glasses to for the Supreme Court accepting this time Gideon is not alone. He is now a maximum sentence of five years in petition is to answer the question of accompanied bylawyerexperienced, prison. The decision against Gideon whether the right to be assisted by Fred Turner. Henry Cook is again the was based solely on the testimony of legal advisers guaranteed by the Sixth main witness presented by the public a witness named Henry Cook who was Amendment to the Constitution applies prosecutor. However, this time, his submitted by Assistant State Attorney to defendants who are tried under state form was dreadful under the threat William E. Harris. In the trial, Cook only law? The Supreme Court’s approval of persistent sharp questions from explained that at around 05.30 at the to accept Gideon’s petition inevitably Fred Turner The most disturbing time of the incident he saw Gideon made Abe Fortas — Gideon’s legal thing that caused his testimony to be insidepoolroom. After seeing Gideon adviser during the trial at the Supreme questioned by the jury was that he through the window for a while — Court — shocked. Because previously, admitted that at the previous trial he according to witnesses — Gideon in the case of Betts v. Brady (1942), the had hidden his criminal record. Partly came out clutching a bottle of wine Court is of the opinion that the refusal it was the reason for Cook’s poor and then phoned. A few moments later of state courts to provide legal counsel performance that led the jury in this a taxi arrived and Gideon left. Gideon’s for incapacitated defendants who are retrial to finally find Gideon innocent. question to the witness, “Why was convicted of a criminal act is not a The release of Gideon from the witness in that place so early?”, violation of the Due Process Clause in the indictment of a crime, of course, The witness only replied that he came the Fourteenth Amendment. That is, in greeted Gideon and his legal counsel home from a dance in Apalachicola. Fortas’s hunch, agreeing to try Gideon’s with joy. However, whether he realized If only at that time Gideon had petition implied that the Supreme it or not, Gideon’s persistence in been accompanied by experienced Court was showing its willingness to defending his constitutional rights legal counsel, the witness’s answer reconsider its stance in Betts v. Brady. was not just a struggle for himself, might have been more in-depth and Sure enough, on March 18, 1963, but a struggle for citizenship as well might even have benefited Gideon. the Court unanimously abandoned its as humanity. The proof, as a result of But that didn’t happen. Judges, of stand in the case Betts v. Brady. The the Supreme Court’s decision against course, cannot possibly take over the Court emphasized that the right to be Gideon, it was recorded that there role that a lawyer should be doing. assisted by legal advisers guaranteed were 2000 (two thousand) people who This decision infuriated Gideon, by the Sixth Amendment is a were previously convicted without especially when his request for fundamental right and very important being accompanied by legal counsel legal counsel was rejected. He then for the presence of a fair trial. Therefore during the trial process, immediately submitted a requestwrit of habeas it must be declared valid for the states released after the decision was made corpusto the Florida State Supreme through the Due Process Clause of the in the State of Florida. So, are the Court to order his release on the grounds Fourteenth Amendment. In the ruling wise words of Supreme Court Justice that he had been illegally imprisoned. led by the progressive Chief Justice Felix Frankfurter, “Wisdom too often Gideon’s request was rejected. Just a Eartl Warren, the Court emphasized never comes, and so one ought not side note: a writ of habeas corpus is that there would be no fair trial if a to reject it simply because it comes used, primarily by federal courts in the person being tried who was too poor late”(Wisdom does not come too United States, to determine the legality to hire a legal advisor was not provided often, so someone should not reject of a convicted state’s imprisonment. with legal counsel by the state. it just because he arrives late). In prison, this vagrant, who With the Supreme Court’s seems quite intelligent, accidentally decision, Gideon has the right to finds an article about it Due Process a retrial. 5 August 1963 was the

Number 164 • October 2020 5 MAIN REPORT

THE AUTHORITY OF THE MINISTER OF FINANCE TO APPOINT THE CHAIRMAN OF THE TAX TRIBUNAL IS ADMINISTRATIVE ONLY

6 Number 164 • October 2020 The authority of the Minister of Finance to propose candidates for Chairman and Deputy Chairman of the Tax Court is considered to obscure the understanding of independent judicial power. The involvement of external parties of the court in choosing leadership has the potential to interfere with independence. Tax Court Judges must be free to determine their own leadership without involving the Ministry of Finance. The involvement of the Minister of Finance is only administrative in nature to follow up on the results of the election for the leadership of the Tax Court.

hree Tax Court judges, the Ministry of Finance, including namely Haposan Lumban in proposing the Chairperson and Gaol, Triyono Martanto, Deputy Chairperson of the Tax and Redno Sri Rezeki, Court. Second, the phrase “from the submitted a judicial judges” and the phrase “proposed by Treview of Law Number 14 of 2002 the Minister” in Article 8 paragraph concerning the Tax Court (Tax (2) of the Tax Court Law must be Court Law) to the Constitutional interpreted as the Chairperson and Court (MK). The Petition was Deputy Chairperson of the Tax Court received at the Registrar’s Office elected from and by the judge and of the Constitutional Court on 23 proposed by the Tax Court for one January 2020. The Petition was term of five years. . recorded in the Registration Book for Before entering into the subject Constitutional Cases on 30 January matter of the petition, the Petitioners 2020 with Number 10 / PUU-XVIII in their petition outlined the existence / 2020. and organizational structure of the As for the material tested Tax Court. The Petitioners reveal by the Petitioners, namely Article a portrait of the actual condition 5 paragraph (2) and Article 8 of the Tax Court which does not paragraph (2) of the Tax Court yet have its own building facilities Law. According to the Petitioners, because the Minister of Finance has Article 5 paragraph (2) and Article not established the organizational 8 paragraph (2) of the Tax Court structure of the Tax Court as an Law contradicts Article 24 paragraph organizational builder. (1), Article 28D paragraph (1) and Article 28D paragraph (2) of the The existence of the Tax Court 1945 Constitution. Tax Court within the scope The essence of the petition of justice is under the Supreme concerns two constitutionality issues Court (Supreme Court). as stated questioned by the Petitioners. First, in Article 24 paragraph (2) of the the matter of coaching by the 1945 Constitution. The position of ministry of finance in Article 5 the Tax Court is explicitly stated paragraph (2) of the Tax Court in the Elucidation of Article 27 cannot be interpreted as coaching paragraph (1) of Law Number 48 of SETPP.KEMENKEU.GO.ID

Number 164 • October 2020 7 MAIN REPORT

has resulted in, among other things, the Tax Court does not have its own MATERIAL OF TESTED TAX COURT LAW budget because it does not have a Work Unit (Satker) to manage budget Article 5 paragraph (2) of the Tax Court Law allocations. Then, as a State Official, “Organizational, administrative and financial development for the the Tax Court Judge has not been Tax Court is carried out by the Ministry of Finance.” registered with the State Civil Service Agency (BKN), so that it affects Article 8 paragraph (2) of the Tax Court Law the existence and rights of the Tax “The Chairperson and Deputy Chairperson are appointed by Court Judge. Another consequence the President from the Judges proposed by the Minister after is that the Tax Court does not yet obtaining the approval of the Chief Justice of the Supreme Court.” have its own building (still borrowing the back of the BPKP building on Jalan Hayam Wuruk No.7, Central ARTICLE IN THE 1945 CONSTITUTION AS A TEST Jakarta). INSTRUMENT This condition is very ironic, because the Tax Court is the court that handles the largest disputes Article 24 Paragraph (1) of the 1945 Constitution in Indonesia. In one year the Tax “Judicial power is an independent power to administer the judiciary Court must examine and decide tax in order to uphold law and justice.” disputes of approximately 10,000 Article 28D Paragraph (1) disputes. Nearly 80% of Petitions for “Everyone has the right to recognition, guarantee, protection and reconsideration that are handled by legal certainty that is just and equal treatment before the law.” the Supreme Court TUN Chamber come from tax disputes decided by Article 28D Paragraph (2) the Tax Court Judge. “Everyone has the right to work and to receive fair and proper compensation and treatment in an employment relationship.” Independence of the Tax Court Judge The existence of judges as 2009 concerning Judicial Powers. of Tax Court judges is carried executors of independent judicial In addition, it is also clearly stated out by the Supreme Court, while power cannot be separated from the in Article 9A paragraph (1) of Law organizational, administrative and respectful and strategic position of Number 9 of 2004 concerning financial fostering for the Tax Court, this institution. The need for this State Administrative Courts as it is conducted by the Ministry of position will be seen to be important amended by Law Number 51 of 2009 Finance. when the judiciary intersects the concerning State Administrative behavior and activities of the Courts. Then Article 27 paragraph Tax Court Organizational Structure government apparatus. (2) of Law Number 6 of 1983 The organizational structure The contact between the concerning General Provisions and and working procedures of the Tax judiciary and government agencies Tax Procedures as amended several Court as stipulated in Article 6 of will determine the extent to which times, most recently by Law Number the Tax Court Law consists of the the judiciary is located and the 16 of 2009, explicitly states that the Head, Member Judges, Secretary position of freedom. If the body has a Tax Court Decision is a decision and Registrar. However, this has fair attitude and action and upholds of a special court in the court not been determined by the Minister the applicable laws and regulations, environment. State Administration. of Finance as a supervisor for the its position as the executor of In accordance with Article 5 and organization so that the Court does judicial power will be honorable and Article 11 paragraph (1) of Law not have a Nomenclature (since 2002 commendable. Number 14 of 2002 concerning or 18 years ago). Therefore, the implementation Tax Courts, technical guidance for The absence of stipulation of of the duties and powers of judges the judiciary for the Tax Court and the organizational structure and as the executor of judicial power general guidance and supervision work procedures of the Tax Court and the activities of the government

8 Number 164 • October 2020 apparatus must be given a distance. case is the Minister of Finance, (2) of Law Number 48 Year 2009 The procedure for the appointment in Article 8 paragraph (2) of the allows organizational, administrative of the Chairperson and Deputy Tax Court Law creates problems and financial arrangements to be Chairperson on the proposal of in the system of appointment and regulated according to the specifics the Minister of Finance does not dismissal, in particular relating to of each court. provide an open space for the limited the independence of independence The reduced independence independence and independence of and authority of judges or tax court of judges here is due to the lack Tax Court Judges in examining and institutions,” said Haposan Lumban of transparency of the Minister of deciding tax disputes. Gaol in the preliminary examination Finance’s authority to propose a of case Number 10 / PUU-XVIII Chair and a Deputy Chairperson Chief Minister’s Proposal / 2020 which was held at the (without clear parameters). According The Petitioners suffered Constitutional Court on Wednesday to the Petitioners, this has the constitutional losses related to the (12/2/2020). potential to reduce the provisions recommendation of the Chairperson Indeed, the judges of the tax of Article 5 paragraph (3) of the Tax and Deputy Chairperson of the Tax tribunal are not deprived of their Court Law. Court by the Minister of Finance. The independence in making decisions, Petitioners argue, Article 5 paragraph although they are still under two Different Selection Mechanisms (2) and Article 8 paragraph (2) agency guidance, namely the Since the Tax Court was of the Tax Court Law obscures Supreme Court and the Ministry of established in 2002, the mechanism the understanding of independent Finance. Supreme Court guidance for proposing the Chairperson and judicial powers. The judicial power regarding judicial techniques. Deputy Chairperson of the Tax Court should not be under the influence Meanwhile, the development of the has been carried out differently. The or potential influence, thoughts, or Ministry of Finance involves fostering nomination of the Chairperson and feelings that directly or indirectly organization, administration and Deputy Chairperson of the Tax Court cause the Tax Court judges to finance. This is possible because the was once carried out through an be in legal uncertainty and their two forms of guidance are guaranteed election mechanism from and by a independence. in Article 5 paragraph (3) of the Tax judge to be further proposed to the “The appointment of the Court Law, namely that they cannot Minister of Finance. chairman and deputy chairperson reduce the freedom of judges. On The process of nominating the proposed by the minister in this the other hand, Article 21 paragraph Chairman of the Tax Court has HUMAS MK/IFA Para Pemohon saat menghadiri sidang pengujian UU Pengadilan Pajak

Number 164 • October 2020 9 MAIN REPORT

cause the Chair / Deputy Chair to serve until retirement because there is no transfer pattern. The absence of a pattern of transfer and promotion in the Tax Court has the potential to hinder the process of developing a judge’s career. The Chairman / Deputy Chairperson cannot be dismissed unless he has committed a criminal act, violated the code of ethics, at his own request, is constantly physically or mentally ill, is incapable of carrying out his duties, has passed away (Articles 13,14 and 15 of the Tax Court Law). When compared with the tenure of other institutions which number only 1 (one) in Indonesia such as the HUMAS MK/IFA Pihak Pemerintah saat akan meberikan keterangan pada sidang pengujian UU Pengadilan Pajak Supreme Court, Constitutional Court and the Judicial Commission, the also been carried out based on a the Petitioners. Therefore, according terms of the positions of Chairperson recommendation from the previous to the Petitioners, the mechanism and Deputy Chairperson are regulated chairman before retiring. In addition, for proposing the Chairperson and in the Law so that leadership in there has also been a proposal for Deputy Chairperson must be carried organizations moves dynamically a Deputy Chairperson made by the out through an election process from and healthily. Head of the Tax Court for further and by the Tax Court Judge, so as Discussions related to the due diligence to be carried out by to guarantee the independence and term of office of the Chairperson the Ministry of Finance. independence of the judge. and Deputy Chairperson conducted “For the sake of the realization by the Head of the Tax Court and Nepotism, Like and Dislike of an independent judicial power the Ministry of Finance have been There are no clear provisions that upholds law and justice, the going on for quite a long time. governing the requirements and authority of the minister of finance However, until now there is no way mechanisms for proposing the or as an executive to propose the out. This is because the Minister Chairperson and Deputy Chairperson Chairman and Deputy Chair of the of Finance and the Supreme Court of the Tax Court. When compared Tax Court needs to be eliminated must have a strong and clear to other courts, the pattern of because the independence of the legal basis to determine the term promotion and transfer of judges is judicial power in essence must of office of the Chairperson and clearly regulated in the Chief Justice be free from the influence of the Deputy Chairperson of the Tax Decree Number 48 / KSupreme executive body or other powers in Court because the guidance for Court / SK / II / 2017 concerning society,” continued Haposan. the Minister of Finance and the Promotion Patterns and Judges’ Supreme Court must consider the Movements in Four Courts of Justice. Periodization of Tax Court independence and freedom of judges The unclear requirements and Leadership as regulated in Article 5 paragraph inconsistency of the mechanism The Tax Court is only located (3) of the Tax Court Law. for proposing the Chairperson and in the Capital City of the State Whereas the function of Deputy Chairperson of the Tax (Article 3 of the Tax Court Law), leadership in a modern organization Court as described above have the so there is only one Tax Court in is undeniably very important for potential for nepotism and “like Indonesia. Since there is only one the existence and progress of the and dislike” to occur. The unclear Tax Court, the absence of a period organization. With no limitation on proposal process ultimately resulted of office of the Chairperson / Deputy the term of office of the Chairperson in legal uncertainty and justice for Chairperson of the Tax Court will and Deputy Chairperson of the

10 Number 164 • October 2020 Tax Court, there will be potential 28D Paragraph (1) and Paragraph the Tax Court for 1 (one) term of for authoritarian action, abuse of (2) of the 1945 Constitution. office of 5 (five) years. power (Abuse of Power). due to the stagnation of the regeneration of Plea for Damages The views of the People’s organizational leadership, which is In the petitum, the Petitioners representative council contrary to Article 28D Paragraph asked the Court to grant all The House of Representatives (1) and Paragraph (2) of the 1945 petitions. Namely stating that Article (DPR) submitted a written statement Constitution. 5 paragraph (2) of the Tax Court Law received by the Registrar’s Office on Based on all the arguments remains constitutional and still has August 27 2020. The The House of above, according to the Petitioners, binding legal force as long as it is Representatives responded to the it would be very appropriate if the interpreted as fostering the Ministry Petitioners’ argument which stated Constitutional Court stated that the of Finance, excluding proposing the that Article 5 paragraph (2) of the provisions of Article 5 paragraph (2) Chairperson and Deputy Chairperson Tax Court Law is unconstitutional and Article 8 paragraph (2) of Law of the Tax Court. because it injures the principle of Number 14 of 2002 are potentially The Petitioners also asked the judicial power as stated in Article 24 qualified articles that violate the Constitutional Court to state the Paragraph (2) UUD 1945. According principle of protection of guarantees phrase “from the Judges” and the to the People’s Representative of legal certainty, equality before the phrase “proposed by the Minister” Council, this argument is completely law, an independent judicial power, in Article 8 paragraph (2) of the groundless. The provisions of Article and fair and proper treatment in Tax Court Law contrary to the 1945 24 Paragraph (2) of the 1945 working relations. Therefore, the Constitution and has no binding Constitution actually show that the Petitioners conclude, Article a quo legal force as long as it is not Supreme Court is the pinnacle of is not proportional and incomplete interpreted that the Chairperson and the judicial body under it, so that it so that it automatically contradicts Deputy Chairperson are elected from can be interpreted that the Supreme Article 24 Paragraph (1) and Article and by the Judge and proposed by Court has the authority to provide MAHKAMAHAGUNG.GO.ID Ketua Mahkamah Agung Republik Indonesia, Prof. Dr. M. Hatta Ali., SH., MH., melantik dan mengambil sumpah dua orang Wakil Ketua Pengadilan Pajak pada Jum’at pagi, 20 Maret 2020 di Gedung Mahkamah Agung lantai 13, Jakarta.

Number 164 • October 2020 11 MAIN REPORT

guidance to special judicial bodies The House of Representatives process of proposing the Chairperson that are regulated based on certain is of the view that the election and Deputy Chairperson, The laws, including the Tax Court. and appointment of a person House of Representative of Indonesia In understanding the substance as a tax judge must take into Republic explained that this was just of the provisions of Article 5 account the skills and expertise the Petitioners’ unwarranted concern. paragraph (2) of the Tax Court Law, elements concerned in the field If the election of the Chairperson it cannot be read separately, but of taxation. The inclusion of the and Deputy Chairperson of the Tax must be understood as a whole. The Minister of Finance in the process Court from and by members of the provisions of Article 5 paragraph (1) of determining the Chairperson, tax court judge is as the Petitioners of the Tax Court Law are affirmed, Deputy Chairperson and Judge of wish, then this could interfere with “The technical guidance for the Tax the Tax Court is certainly related the implementation of the duties of Court Agency is carried out by the to the authority of the Minister of the Tax Court judge by the potential Supreme Court”. This shows that Finance as the state treasurer who for differences in views among the as a special court, the tax court is manages state finances, including Tax Court judges themselves in under the guidance of the Supreme formulating standards, policies, and determining who is nominated and Court. This is reinforced by the systems and procedures related to elected as Chairman. and Tax Court provisions of Article 11 of the Tax the management of state finances Representatives. This of course has Court Law which states, “General in the context of implementing the been anticipated by the legislators guidance and supervision of judges APBN / APBD. So the Minister of by not regulating the appointment is carried out by the Supreme Court”. Finance is considered to know the of the Chairperson and Deputy In addition, it is also emphasized competence of the Chairperson, Chairperson of the Tax Court by in Article 5 paragraph (3) of the Deputy Chairperson and Judge of members of the Tax Court judges Tax Court Law that both technical, the tax court in the field of taxation themselves. organizational, administrative and considering that tax policy often Regarding the Petitioners’ financial guidance must not reduce changes in line with economic petition to stipulate the periodization the freedom of judges in examining developments and state financial of the Chairperson and Deputy and deciding tax disputes. So that conditions. Chairperson of the Tax Court, namely according to the The House of Regarding the potential for for 1 (one) term of office of 5 (five) Representatives, nepotism and “like and dislike” in the years, the Indonesian Parliament SETPP.KEMENKEU.GO.ID Suasana sidang di Pengadilan Pajak

12 Number 164 • October 2020 explained that this was not the and balances,” said Head of Advocacy the Chair and Deputy Chair of the authority of the Constitutional Court Bureau of the Ministry of Finance, Tax Court. Even the Petitioners are as a negative legislator to formulate Tio Serepina. when delivering the aware that the Tax Court Judges new norms in the Tax Court Law. President’s statement in a trial have not reduced their independence This regulation is the open legal held at the Constitutional Court on in making decisions, even though policy for the formers of the law. Tuesday (7/7/2020). they are still under two institutional The Petitioners feel that their These things clearly show that guidance, namely the Supreme constitutional rights have been the tax court has a specificity and Court for technical guidance and the impaired by the enactment of the a also gives the Minister of Finance the Ministry of Finance for organizational quo articles. In fact, according to the authority to nominate candidates for development. The House of Representatives, this is Chair and Deputy Chair of the Tax In addition, the guidance not a constitutional loss experienced Court. However, later the chairman mandated by the Minister of by the Petitioners. This is a concern of the Supreme Court who will Finance by Article 5 paragraph of the Petitioners who feel that they approve the elected candidate will (2) of the Tax Court Law is have missed the opportunity to be appointed by the president. organizational, administrative and become Chairman of the Tax Court In addition, there is a financial development. Thus, there so that the Petitioners’ arguments Memorandum of Understanding is absolutely no relationship between are very irrelevant to make the between the Supreme Court and the the coaching and the independence provisions of the a quo article Judicial Commission (KY) and the of the Tax Court Judges. The contradict the 1945 Constitution. Ministry of Finance Number 135 / Minister of Finance does not have the KMA/ SKB / VII / 2010, Number authority to impose any sanctions or President’s statement 08 / KS-KY / VII / 2010, Number: actions against the Tax Court Judge. The President delivered an oral MOU-1681 / MK / 2010, guidance Although the Chairperson and statement before the Court hearing. and supervision of the Tax Court Deputy Chairperson of the Tax Court The President also submitted a Judge is carried out in a coordinated were proposed by the Minister of written statement on July 7, 2020 manner according to the authority Finance, this does not mean that and submitted an additional written of each agency. the Minister of Finance is won in statement on July 21, 2020. Thus, even though the tax disputes. “Based on the data, The government is of the view recommendation of the Chairperson the decision of the Tax Court Judge that the Minister of Finance oversees and Deputy Chairperson of the Tax Board that defeated the Minister of agencies that have duties and Court is carried out by the Minister Finance was more than the one that functions related to state revenue of Finance, guidance for Tax Court won,” said Tio Serepina. in the tax sector, so the Minister Judges is not only carried out by of Finance has knowledge of the the Ministry of Finance, but also Constitutional Court Legal competencies of candidates for Chair by independent state institutions in Considerations and Deputy Chair of the Tax Court. accordance with statutory provisions, The Tax Court is the exercise Therefore, it is very appropriate if the namely Supreme Court and KY. of judicial power which has the Minister of Finance is appointed as Regarding the independence of authority to resolve tax disputes. Tax the party proposing the Chairman Judges in deciding disputes at the disputes are disputes between the and Deputy Chair of the Tax Court. Tax Court, it is evidently guaranteed interests of the people as taxpayers After receiving proposals for in Article 5 paragraph (3) of the and the interests of the people as Chairperson and Deputy Chairperson Tax Court Law. Therefore, it is not tax connoisseurs that cannot be of the Tax Court from the Minister appropriate for the Petitioners to equated with other public disputes, of Finance, the proposal must first state that the provisions regarding especially private disputes. So in obtain approval from the Chief the fostering of organization, tax disputes it is necessary to Justice and subsequently appointed administration and finance as well as settle disputes quickly to provide by the President. “This shows that the recommendation of the Chair and legal certainty both for taxpayers when he will appoint the chairman Deputy Chair of the Tax Court by the regarding their payment obligations and deputy chairman of the tax Minister of Finance as stipulated in and for countries that need tax court, the President needs the Article 5 paragraph (2) and Article 8 revenues to finance government opinion of the Chief Justice of the paragraph (2) of the Tax Court Law administration activities. Supreme Court as the holder of violate the constitution. Article 8 The nature of tax decisions that the judicial power and the Minister paragraph (3) of the Tax Court Law create certainty for both taxpayers of Finance as one of the executive is irrelevant / has no relationship and tax collectors so that a number powers to create inter-agency checks at all with the independence of of disputed tax amounts can be

Number 164 • October 2020 13 MAIN REPORT

immediately utilized by taxpayers government, interests, pressure chairman of the court, the judges and by the state for the benefit groups, the media. print / electronic, can actually choose or determine of the people and the role of the and influential individuals. The the judge who is their choice to be government in this case is the product produced by a judge from the leader who brings the progress Ministry of Finance to maintain the a judicial body is a judge’s decision, of the organization in serving justice State Budget (APBN). ). The Court therefore the product of the judge seekers. These judges no longer can understand that until now the must contain the values of​​ certainty require external involvement from Tax Court is still under the guidance and justice based on the Almighty the court in selecting the chairperson of the Ministry of Finance as an God. Therefore, every decision of and vice chairman. This is because institution where one of its main the judicial body which originates the intensity of interaction with tasks is to take care of state finances from the actualization of the outsiders can potentially interfere and revenues, one of which comes independence of the judge through with the independence of a judge from taxes or in other words related legal considerations, truly reflects and lead to personal subjectivity who to the tax court which must be one and radiates philosophical values, will be elected to become a leader roof (one roof system). ) under the with a specific purpose, especially Supreme Court. Chief Judge Chosen to benefit his interests. “Therefore, as long as the Judges through the chairman / Thus based on these duties and authority of the Tax deputy chairperson must also have considerations, according to the Court judges are not disturbed by freedom in the management of their Court, the guidance of the Ministry their independence in adjudicating a organization as in a judicial body in of Finance to the tax court does not case, such a policy is an open legal general, including in this case the mean that the Ministry of Finance policy for the legislators regarding Tax Court. The meaning of freedom is involved in the selection of the the existence of the Tax Court which for judges, apart from judges in chairman and vice chairman of is still under the guidance of the carrying out the duties of judicial the Tax Court. Because, tax court Ministry of Finance. “Constitutional power, also may not be bound by judges, apart from being free in Justice Manahan MP Sitompul said anything and / or pressured by exercising judicial power, tax judges reading the legal considerations of anyone. Judges are also free to must also be free in determining Decision Number 10 / PUU-XVIII do anything, one of which is to their own leadership to organize / 2020 in a hearing held at the organize their existence in a judicial the duties and authorities of the Constitutional Court on Monday body by choosing a chairman and judiciary without involving external (28/9/2020). a vice chairman to lead the judges parties, in this case the Ministry of However, the question is whether themselves in carrying out their Finance, which does not necessarily this guidance should be included in daily duties. know more deeply about their quality the selection of the Chairman and In addition to serving as judges or character. -Each of the judges. Deputy Chair of the Tax Court. To who exercise judicial power to answer this question, the Court examine and decide cases, the The Involvement of the Minister first describes judicial power as an chairperson and deputy chairperson of Finance is Administrative independent power to administer of the judiciary body also has duties Therefore, according to the the judiciary in order to uphold in internal organization of the Court, the procedure for selecting law and justice as a constitutional judicial body such as supervising the chairman and deputy chairman basis that regulates court judges in or implementing the duties and of the Tax Court must be released carrying out their duties and powers behavior of judges and ranks in a from the involvement of the Minister who cannot be under the influence, judicial institution and regulating the of Finance so that the judges pressure and feelings that reduce division of tasks judge. Furthermore, can reflect more on their choices their concentration on freedom in in carrying out their day-to-day according to their conscience based upholding law and justice. duties in a judicial body, of course on considerations of the capability, Judges must be able to they interact with each other, integrity and leadership of the implement their freedom as a whether related to their main duties prospective leaders, as well as the responsible freedom, freedom in or those related to daily personal life. results of their choices, the judges the corridor of orderly laws and That way the judges can get to know can be held accountable for the regulations in force by carrying out each other or explore the character consequences of their choice. the main duties of the judicial power of each judge himself. “With such considerations, in accordance with the procedural law Thus, if there is an election for the involvement of the Minister of and prevailing laws and regulations the leadership of a judicial body, in Finance is only administrative in without being influenced by the this case the chairperson and deputy nature to follow up on the results

14 Number 164 • October 2020 of the election for the chairman / Meanwhile the arguments of the which states, “The Chairperson and deputy chairman which is forwarded Petitioners’ petition insofar as the Deputy Chairperson are appointed to the President after obtaining phrase “proposed by the Minister” by the President from the Judges approval from the Chief Justice is groundless according to law and proposed by the Minister after of the Supreme Court. Likewise, the Court interprets it as “proposed obtaining the approval of the Chief with regard to proposing dismissal through the minister”. Justice of the Supreme Court”, with respect and disrespect for As a result, the Court in contrary to the 1945 Constitution the Chairman and Deputy Chair its decision stated that some of and has no binding legal force as of the Tax Court, the involvement the petitions had been granted. long as not interpreted as “the of the Minister of Finance is only “To partially grant the Petitioners’ Chairperson and Deputy Chairperson administrative in nature, “ petition,” said Chief Justice of the are appointed by the President who Constitutional Court Anwar Usman is elected from and by the Judges Leadership Periodization reading the sentence of Decision who are subsequently proposed According to the Court, the Number 10 / PUU-XVIII / 2020 in through the Minister with the most basic democratic practice that a hearing held at the Constitutional approval of the Chief Justice of the must be applied in an organization Court on Monday (28/9/2020). Supreme Court for 1 (one) term of is the periodic leadership rotation, to The Constitutional Court’s prevent authoritarianism and abuse office of 5 (five) years.” decision also states Article 8 NUR ROSIHIN ANA of power. The existence of internal paragraph (2) of the Tax Court Law control by means of time limitation is based on the assumption that continuous power can make leaders DECISION QUOTE tend to abuse power. NUMBER 10 / PUU-XVIII / 2020 Periodization in a position is not Review of Law Number 14 of 2002 concerning the Tax Court against the 1945 just so that management changes occur. Another thing that is no less Constitution of the Republic of Indonesia. important is creating a process of regeneration and regeneration in Petitioner an institution or career path for the Haposan Lumban Gaol, Triyono Martanto, and Redno Sri Rezeki activists of the organization. Injuction Therefore, it is very important that the head of the tax court, 1. Partially granted the Petitioners’ petition; namely the Chairperson and Deputy 2. State Article 8 paragraph (2) of Law Number 14 of 2002 concerning the Chairperson of the Tax Court, is given Tax Court (State Gazette of the Republic of Indonesia of 2002 Number a limit of term of office or periodization 27, Supplement to the State Gazette of the Republic of Indonesia to avoid any worries as considered by Number 4189) which states, “The Chair and Deputy Chairperson are the Court. Therefore, if referring to appointed by the President from the Judges who proposed by the the legal considerations, the relevant terms of office for the Chairperson Minister after obtaining the approval of the Chief Justice of the Supreme and Deputy Chairperson of the Tax Court “, contradicts the 1945 Constitution of the Republic of Indonesia Court are one five-year term of office. and does not have binding legal force as long as it is not interpreted as” Based on the foregoing Chairperson and Deputy Chairperson are appointed by the President considerations, according to the who is elected from and by the Judges who are subsequently proposed Court the Petitioners’ argument through the Minister with the approval of the Chief Justice of the which states that the phrase “from the judges” in Article 8 paragraph Supreme Court for 1 (one) term of office of 5 (five) years ”; (2) of the Tax Court Law is contrary 3. Stating that the Petitioners’ petition in relation to Article 5 paragraph (2) to the 1945 Constitution and does of Law Number 14 of 2002 concerning the Tax Court (State Gazette of not have binding legal force as long the Republic of Indonesia of 2002 Number 27, Supplement to the State as it is not interpreted that the Gazette of the Republic of Indonesia Number 4189) cannot be accepted; Chairperson and Deputy Chairperson 4. Reject the Petitioners’ petition other than and the rest. are elected from and by Judges and proposed by the Tax Court for one 5. Order the loading of this decision in the State Gazette of the Republic of term of office of five years are legally Indonesia accordingly. reasonable.

Number 164 • October 2020 15 CASE FLASH

(PP Persis), Al-Irsyad Women, the Executive Board of the Al- Irsyad Youth. The inaugural session of Case 75 / PUU-XVIII / 2020 was held by the Constitutional Court (MK) on Tuesday (22/9/2020) afternoon. The Petitioners examined Article Article 2 paragraph (1) letter a number 1, letter a number 2 and letter a number 3, Article 6 paragraph (12), Article 27 and Article 28 Annex to Law 2/2020. The Petitioners convey that the articles tested are expressly and implicitly inconsistent with the principles of a rule of law regulated by the 1945 Constitution. This is based on the fact that several a quo provisions give the President absolute authority, in addition to negating the The House of Representatives and DPD as state institutions to exercise THE LAW ON HANDLING COVID-19 their authority in the field of legislation or the formation of laws. In addition, the a quo provisions also provide immunity AGAIN WAS SUED for institutions and / or implementers of policies and policies DIN Syamsuddin, Amien Rais, and friends, are not in the framework of implementing the a quo provisions in discouraged from seeking justice regarding state financial the attachment to Law 2/2020 in the event of irregularities policies in dealing with the Covid-19 pandemic as stipulated or acts of abuse of authority are not criminal acts. For this in Law 2/2020. For the second time, the Petitioners reason, the Petitioners asked that the articles tested be consisted of 56 individual Petitioners and a number of declared contrary to the 1945 Constitution. (Nano Tresna A.) them, among others, the Head of the Islamic Unity Center

by unscrupulous State Civil Servants (ASN) at Bappenas who promised the Petitioner’s child to be accepted to work at PT Aneka Tambang. After the Petitioner followed the information provided by the ASN person, the Petitioner’s child was not accepted to work at PT Aneka Tambang, while the Petitioner had transferred a sum of money to the ASN person. In the legal considerations read out by Deputy Chief Justice of the Constitutional Court Aswanto, the Court considered that the Petitioners’ petition did not meet the NOT FULFILLING FORMAL formal requirements of the petition systematically. In the section on legal standing, the Petitioner did not specify a REQUIREMENTS, PETITION FOR causal relationship that the validity of the article being tested CRIMINAL PROCEDURE CODE REVIEW was deemed to be detrimental to the Petitioner who had UNACCEPTABLE reported fraud in recruitment brokers and the termination of the investigation process. THE Constitutional Court judged the petition for judicial “The Petitioners only describe concrete cases that have review of Law Number 8 Year 1981 regarding the Criminal no relevance to the norms tested, namely the statements Procedure Code (KUHAP). For this reason, the Court decided of the Petitioners’ Witnesses related to the fraud allegedly that the Petitioners’ petition was unacceptable. This was experienced by the Petitioners. In the part of the reasons for the warning of the decision on Case Number 56 / PUU-XVIII the petition, the Petitioner did not convey any arguments / 2020 which was read out on Monday (28/9/2020). against the contradiction between the articles petitioned for Channy Oberlin Aritonang as Petitioner for Case and the articles which were the basis for the examination in the 56 / PUU-XVIII / 2020 examined a number of articles in 1945 Constitution. The Petitioners only describe the concrete the Criminal Procedure Code, namely Article 1 number cases experienced without any constitutional arguments 14, Article 184 paragraph (1) and paragraph (2).The regarding the contradiction of the proposed norms with the Petitioner is an individual Indonesian citizen who considers norms of the 1945 Constitution which are used as the basis for that his constitutional rights have been impaired. The testing, “said Aswanto. (Nano Tresna A.) Petitioner explained in his argument that he felt cheated

16 Nomor 163 • September 2020 PETITION FOR JUDICIAL REVIEW OF as stipulated in Article 5 of the Constitutional Court Regulation Number 06 / PMK / 2005 regarding Guidelines THE HUMAN RIGHTS LAW CANNOT BE for Proceeding in Judicial Review. ACCEPTED “The absence of adequate arguments from the Petitioner regarding the unconstitutionality of the phrase” THE request for review of Law Number 39 Year 1999 personally “in Article 15 of Law 39/1999, and the absence concerning Human Rights (Human Rights Law) was of an explanation for the relationship between the phrase ultimately not accepted. Decision Number 52 / PUU-XVIII and the Petitioner’s description of Law 38/2007, according / 2020 was read out on Monday (28/9/2020). The judicial to the Court, resulted in the Petitioner’s petition being review of the Human Rights Law was proposed by Alamsyah incomprehensible. Therefore, based on this, the Court is Panggabean, a resident of Tanjung Botung Village, Barumun of the opinion that the Petitioners’ petition is vague, ”said District, Padang Lawas Regency, North Sumatra Province. Constitutional Justice Wahiduddin Adams who read out the The Court in the legal consideration of the decision Court’s opinion. (Nano Tresna A.) stated that the Petitioners submitted a review of Article 15 of the Human Rights Law. However, the Petitioners question in the initial reasons for the petition (posita) is regarding the formation of Padang Lawas Regency which is based on Law Number 38 of 2007 concerning the Establishment of Padang Lawas Regency in North Sumatra Province (Law 38/2007). According to the Petitioner, the phrase “personally” in Article 15 of the Human Rights Law is contrary to the 1945 Constitution as long as it is not interpreted as “collectively”. However, the Petitioners did not provide further arguments where there was a conflict between the phrase “personally” a quo and Article 28C paragraph (2) of the 1945 Constitution. According to the Court, this did not meet the requirements

THE CONSTITUTIONAL COURT or private property can still be conveyed by other parties as long as it has the permission of the party holding the CONFIRMS RERUNS CAN BE DONE right concerned. Thus, continued Saldi, the norm of the a WITH PERMISSION quo law only regulates that this right is implemented in the framework of protecting other parties who have legal rights to control certain information as copyright. PETITION for reviewing Law Number 11 Year 2008 concerning “Therefore, Article 32 paragraph (1) of Law No. 11/2008 Electronic Information and Transactions (UU ITE) submitted by does not contradict Article 28F of the 1945 Constitution. PT. Nadira Intermedia Nusantara was finally rejected. The trial Because the right to obtain information and convey for pronouncing the decision on Case Number 78 / PUU-XVII / information can be carried out by subscribed broadcasters 2019 took place on Tuesday (29/9/2020). after obtaining permission from the broadcast rights owner. Previously, Case Number 78 / PUU-XVII / 2019 was Based on all legal considerations above, the Court is of the filed by PT. Nadira Intermedia Nusantara. The Petitioner opinion that the Petitioners’ petition is groundless according argued that he had been harmed by the enactment of Article to law in its entirety, “concluded Constitutional Justice Saldi 25 Paragraph (2) letter a of the Copyright Law because he was Isra. (Nano Tresna A.) deemed to have conducted “re-broadcasting”. The Petitioner who implemented the provisions of the Broadcasting Law to distribute at least 10% of the programs of public broadcasting institutions (TVRI) and private broadcasting institutions (private TVs broadcasting free to air) were actually reported by employees of PT. MNC SKY VISION to the police for broadcasting MNC Group TV creations. The Court is of the opinion that the existence of Article 32 paragraph (1) Law no. 11/2008 and Article 25 paragraph (2) letter a of Law no. 28/2014 in no way closes a person’s right to store, process and convey information. In fact, the a quo norm regulates that this right is exercised within the legal framework, that certain information which is public

Nomor 163 • September 2020 17 CASE FLASH

Monday (28/9/2020) in the Plenary Court Room. This Petition was submitted by the Blora Civil Society Alliance Association, Sujad, Umar Ma’ruf, Jalal Umaruddin, Susanto Rahardjo, Febrian Candra Widya Atmaja, Exi Agus Wijaya. The Petitioners tested the constitutionality of the norms of Article 19 paragraph (2) letter b, paragraph (3) letter b, and Article 20 paragraph (2) letter b of Law Number 33 Year 2004 concerning Financial Balance between the Central Government and Regional Government against the 1945 Constitution . In the Court’s legal considerations read out by Constitutional Justice Arief Hidayat, it was said that the UNACCEPTABLE REVIEW OF ACT ON substance of the petition submitted by the Petitioners FISCAL BALANCE BETWEEN CENTRAL regarding the distribution of revenue-sharing funds was a regional right. Thus, this problem is also part of the issue AND REGIONAL GOVERNMENT of rights and / or affairs that fall under regional authority. THE Constitutional Court (MK) has decided that it cannot Therefore, the Court states that the party that can apply for a accept the petition for review of Article 19 paragraph (2) norm review being petitioned for is the Regional Government letter b and paragraph (3) letter b and Article 20 paragraph and not an individual, a group of people, a customary law (2) letter b of Law Number 33 Year 2004 concerning community unit, a public or private legal entity. Financial Balance between the Central Government and the “Thus, the Petitioners do not have the legal position Government Regions (Law 33/2004). This was conveyed by to act as Petitioners in the a quo petition,” said Arief in a the Chief Justice of the Constitutional Court Anwar Usman hearing attended by the parties via video conference from while leading the plenary session of the pronouncement of their respective residences. (Sri Pujianti) Decision Number 63 / PUU-XVIII / 2020 which was held on

RULES CONCERNING THE FREEDOM OF addition, continued Manahan, the meaning petitioned by the Petitioner in the petitum is a practice so far that THE CONSTITUTIONAL ACADEMIC PULSE is in line with the meaning of Article 9 paragraph (2) of THE Constitutional Court (MK) decided that the petition Law 12/2012. The freedom of the academic pulpit is the for judicial review of Law Number 12 of 2012 concerning authority of the professor and / or lecturer, but that does Higher Education (Higher Education Law) related to the rules not mean that students cannot have the right to argue in an regarding freedom of academic pulpit was not acceptable. academic forum forum. The right of opinion from students Decision Number 53 / PUU-XVIII / 2020 was read out by in an academic pulpit, still exists under the auspices of the Chief Justice of the Constitutional Court Anwar Usman professors and / or lecturers who have authority in the accompanied by eight other constitutional judges on families and branches of their knowledge. Tuesday (29/9/2020) afternoon. Thus, the Court found that the mismatch between the This Petition was submitted by Muhammad Anis posita and the petitum had caused confusion or confusion Zhafran Al Anwary who is a student of Universitas regarding the a quo petition. So that the Court found it Brawijaya. In their petition, the Petitioner argued that Article difficult to understand the meaning of the petition and did 9 paragraph (2) of the Higher Education Law was deemed not consider further the main points of the Petitioner’s contrary to Article 28; Article 28C paragraph (1); Article 28E petition. (Sri Pujianti) paragraph (2) and paragraph (3); Article 28F; and Article 28I paragraph (2) of the 1945 Constitution. According to the Petitioner, the a quo article eliminates the right of the academic community as students to freely convey thoughts, opinions and information based on the clumps and branches of knowledge they master. Regarding the petition, Constitutional Justice Manahan MP Sitompul who read out the Court’s legal considerations said that the Petitioner’s petition was vague because it did not fulfill the formal requirements of the petition as referred to in Article 30 and Article 31 of the Constitutional Court Law and Article 5 paragraph (1) PMK 6/2005. In

18 Number 164 • October 2020 THE CONSTITUTIONAL COURT: THE PETITIONER DOES NOT HAVE THE LEGAL POSITION TO REVIEW THE MINERBA LAW THE Constitutional Court (MK) decided that it could not accept the petition for the Judicial Review of Law Number 3 of 2020 concerning Amendments to Law Number 4 of 2009 concerning Mineral and Coal Mining (Minerba Law) against the 1945 Constitution. The session for pronouncing Decision Number 58 / PUU- XVIII / 2020 was held on Tuesday association in the form of a civil legal entity (AAK), individual (29/09/2020) at the Plenary Court Room. The request for Indonesian citizens and work as lecturers, advocates, as judicial review of the Minerba Law was submitted by the well as individual Indonesian citizens who are currently Constitutional Advocates Association (AAK), Bahrul Ilmi pursuing mining law, have not suffered losses either Yakup, Dhabi K. Gumayra, Yuseva, Iwan Kurniawan, Mustika directly or indirectly with the enactment of norms. a quo Tanto, and Rosalina Pertiwi Gultom. and there is also no cause-and-effect relationship between In the legal considerations read out by Constitutional the presumption of constitutional impairment and the Justice Enny Nurbaningsih, the Court was of the opinion enactment of the norm petitioned for review. that the Petitioners were unable to describe clearly and in Enny emphasized that although the Court has the detail what constitutional losses were actually experienced authority to try the a quo petition, because the Petitioners by the enactment of the provisions of Article 35 paragraph do not have the legal standing to submit the a quo petition, (1) and paragraph (4) of Law 3/2020 which in in essence, the Court did not consider the main points of the Petitioners’ it states that the mining business is carried out based on petition. Thus, the Constitutional Court stated that the a business license from the Central Government and the Petitioners’ petition could not be accepted. As a result, the Central Government can delegate the authority to grant Constitutional Court’s decision stated that the petition could Business Licensing to the provincial Regional Government not be accepted. “On trial, declaring the Petitioners’ petition in accordance with the provisions of laws and regulations. unacceptable,” said Chairman of the Plenary Meeting of the According to the Court, the Petitioners as an Constitutional Justices Anwar Usman. (Sri Pujianti)

autonomy and regulatory authority. The policy to restore the THE CONSTITUTIONAL COURT DECIDES centralization of mining affairs in the Central Government CASE ON BABEL ISLANDS PROVINCIAL is not a solution, but is more caused by changing policies and the tug of war between the Central and Regional GOVERNMENT MINERBA LAW Governments. THE Constitutional Court (MK) held a hearing to pronounce After the Court juxtaposed the Petitioners’ evidence the decision on the case review of Law Number 3 of with a copy of the Minerba Law obtained from the State 2020 concerning Amendments to Law Number 4 of 2009 Secretariat’s Legal Information Documentation Network concerning Mineral and Coal Mining (Minerba Law) against (JDIH), there were differences between the two. In the copy the 1945 Constitution. The Court was of the opinion that of the Minerba Law from the State Secretariat JDIH, there the Petitioner’s petition was unclear (obscure ). As a result, are no provisions in Article 100A and Article 169B paragraph in the decision, the Constitutional Court stated that the (5) letter g as petitioned by the Petitioners. “The Petitioners Petitioners’ petition could not be accepted. Such is Decision also did not describe the contents of the articles meant in the Number 65 / PUU-XVIII / 2020 which was read out on petition so that the Court could not understand the articles Tuesday (29/9/2020) in the Plenary Court Room of the intended by the Petitioners,” said Constitutional Justice Arief Constitutional Court. Hidayat reading out the legal considerations of the decision. The request for a review of the Minerba Law was The Petitioners asked the Court to declare to return submitted by the Regional Government of the Bangka the articles of the Minerba Law to their original state before Belitung Islands Province, which in this case was represented the amendment. According to the Court, such a petitum may by the Governor of the Bangka Belitung Islands, Erzaldi only be considered and fulfilled as long as the petitioned for Rosman, together with the leaders of the The House of is clear and has implications for legal vacuum. “According to RepresentativesD of the Bangka Belitung Islands, namely the Court, the Petitioners’ petition is unclear (vague),” said Didit Srigusjaya, Hendro Apolo, Muhhamad Amin, and Amri Arief. (Utami Argawati) Cahyadi. As for the material of the Minerba Law petitioned for review in the Constitutional Court, namely Article 4 paragraph (2), Article 7, Article 8, Article 17 paragraph (2), Article 21, Article 35 paragraph (1), Article 37, Article 40, Article 48 letters a and b, Article 67, Article 100A, Article 122, Article 140, Article 151, Article 169B paragraph (5) letter g, Article 173B, and other articles as long as they are interpreted as “removing / changing the authority of the Provincial Government”. According to the Petitioner, mining problems as introduced in the consideration of “considering” the Minerba Law are not caused by the factor of regional

Number 164 • October 2020 19 ACTION

THE CONSTITUTIONAL COURT WINS THE THE UNQUALIFIED OPINION ( WTP) OPINION AWARD 10 TIMES IN A ROW

he Constitutional Court (MK) Recovery” from the Meeting Room institutions have received WTP Opinion again won the Unqualified of the Constitutional Court Building awards 10 times in a row, including the Opinion (WTP) award for virtually. People’s Consultative Assembly, the the 10th time in a row. This In this activity, Sri appreciated People’s Representative Council, the Taward was presented virtually by the the number of WTP Opinions obtained Riau Provincial Government, the Aceh Minister of Finance Sri Mulyani at by ministries, state agencies and local City Government, the Palembang City the 2020 National Working Meeting governments which increased from Government, the Nagan Raya Regency (Rakernas) of Government Financial 81 institutions in the 2018 period to Government, the Regency Government Accounting and Reporting held by the 84 institutions in the 2019 financial West Lampung, and the Jepara Regency Ministry of Finance of the Republic of reporting period. He hopes that this Government. In addition, awards were Indonesia on Tuesday (22/9/2020). The achievement can be maintained and also given to ministries and state Secretary General of the Constitutional improved considering this can It is institutions as well as local governments Court M. Guntur Hamzah as well as also used as an indicator of the better who won 5 consecutive WTP Opinions several other structural and functional governance of ministries, institutions, in 286 financial reports spread across officials of the Constitutional Court and regional governments in carrying out 34 provinces in Indonesia. witnessed the annual activity with the the functions of financial responsibility (SRI PUJIANTI / LULU ANJARSARI) theme “Challenges of State Financial and state governance. Accountability in Handling the Covid-19 In addition to the Constitutional Pandemic and National Economic Court, a number of ministries and state

20 Number 164 • October 2020 HUMAS MK/IFA

Constitutional Justice Enny Nurbaningsih became a resource person for the webinar on the Analysis of Legislative Formulation Training organized by the Education and LAW IS A POLITICAL State Secretariat Ministry Training, Friday (25/9) in Jakarta. Public Relations / Ifa Photo. PRODUCT

onstitutional Justice Enny constitutional law. But there are also it cannot be separated from political Nurbaningsih was the resource other factors that are very influencing institutions that play an important role person for the Training on beyond the positive law. One of them in determining the formation of laws. Analysis of the Preparation of is related to legal politics. Therefore, When talking about political institutions, CLegislation. This activity was organized Belifante puts the study of political law it cannot be separated from the choice by the Education and Training Center as part of constitutional law. to determine what will be regulated as of the Ministry of State Secretariat on From these various views, part of legal provisions. The struggles Friday (25/9/2020) afternoon virtually. continued Enny, there is one interesting regarding the choices to be taken in Starting the meeting, Enny touched view, namely the view of the national the process of forming the law are on legal politics in Indonesia which figure, Mochtar Kusumaatmadja. This very decisive. determines the direction of legal policies view has been around for quite some “For example, there is a member of and legislation in order to carry out legal time but is very relevant for discussion. the The House of Representatives who reform towards the law to aspire to. This is related to the formation of proposes a Music Law which raises such The politics of law in Indonesia is still a laws, in this case the formation of a debate. This is an interesting matter. matter of debate among many experts laws. Many people only talk about the Because this is the suggestion of the regarding the location of legal politics. law in a normative way, sometimes constituents, whether it represents the Enny said that there were views bumping into a side that doesn’t really interests of the people in the majority, of a number of figures regarding the understand. Because it turns out that or only certain groups. Meanwhile, debate on legal politics. Those who there are several factors that greatly the substance of the proposed law is study constitutional law generally study influence how the law can then be actually more on copyright issues. Even more positive law. But the Belinfante formed. though we already have the Copyright legal expert says otherwise. Not only Regarding the legal formation Law, “said Enny. studying positive law when we study process in Indonesia, according to Enny, (NANO TRESNA ARFANA/NUR R.)

Number 164 • October 2020 21 ACTION

was 3.71, I thought that by studying I was still not sure I got that much IP. Then, I improved the way I studied in semester 2 and took the exam again for my IP 4, you know in semester 2. There I started to think that maybe God had deliberately hidden a place that I had to search repeatedly to find. And finally I found him at the Faculty of Law. Then, I started thinking about what I want to be at the Faculty of Law. My imagination at that time was to be a lawyer, to be an advocate at that time or if not a lecturer, “Saldi said. According to him, to back up it, Saldi had to read and write a lot. Saldi said, he started writing seriously when he finished his bachelor’s degree. “So I just started my writing Constitutional Justice SaldiI was the inspiration for a virtual meeting held by Andalas University published in the Koran Singkalang, if (Andalas University), Friday (25/9) in Jakarta. Public Relations Photo / Gani I’m not mistaken,” said Saldi. Then, continued Saldi, when he finished the crush, life got heavier and heavier. Writing is a compulsion. Then Saldi THE STORY OF LIFE’S JOURNEY began to learn to write slowly. Graduated as the best law degree ho doesn’t know the Education Entrance Examination 1989 from Andalas University, Saldi Isra was figure of the Constitutional by registering with Bandung Institute immediately proposed by Bung Hatta Justice Saldi Isra? His figure Of Technology again. Again he failed. University to become a lecturer there, has become an inspiration, Three failed attempts, Saldi Isra then although in less than a year, he returned Wespecially for the alma mater where migrated to Jambi to look for work. to his alma mater in October 1995. He he studied and started his career path, After the money he had was deemed continued to write and send his writings namely Andalas University (Unand). This sufficient to enter college, finally Saldi to Republika. Apart from teaching, Saldi was revealed in an online talk show Isra tried his luck again to register State Isra is also active in writing. He has with sources from Andalas University’s Higher Education Entrance Examination successfully written several books and extended family, on Friday (25/9/2020) in 1990.Saldi Isra chose three majors, published by several publishers. While night. The event entitled “Andalas namely Sriwijaya University Mining teaching, Saldi Isra also continued his University Inspiring” was organized Engineering as the first choice, Civil master’s degree in Malaysia. Between by the Green Studio of the Faculty of Engineering Andalas University, and his activities as a lecturer, Saldi is known Agriculture Andalas University (FAPERTA Andalas University Law Science as the to be active as a writer in various mass Andalas University) which was hosted last choice. . Law Science is an option media and journals both nationally and by the Dean of the Faculty of Agriculture that he did not think about because he internationally. The thousands of works Andalas University Andalas University submitted it to fill the social studies that he wrote since he was a student Munzir Busniah and Biology Lecturer major. But who would have thought, have made him widely known among Henny Herwina, Saldi, briefly telling his Saldi Isra actually passed State Higher the public. No wonder, if his face is life journey. Education Entrance Examination in the often milling about in mass media, both In the event, Saldi shared that Department of Law Science which he electronic and print, as a source. He is after graduating from HighSchool had never thought of before. However, also known as the Director of the Center he then tried to pursue his dream when he majored in Law Science, he for Constitutional Studies (PUSaKO) of studying at Bandung Institute of doubted himself whether he could Faculty of Law Andalas University who Technology. However, he had to take attend the lecture. pays attention to constitutional issues. the bitter pill for failing to become “In the midst of that doubt, I Not only that, he is also actively involved an Bandung Institute Of Technology took the 1st semester exam and in the anti-corruption movement in the student again. But it did not stop there, when the results came out beyond country. Saldi Isra returned to the State Higher my expectations. My GPA at that time UTAMI ARGAWATI/LULU ANJARSARI

22 Number 164 • October 2020 HUMAS MK/GANIE

Constitutional Justice Arief Hidayat was the keynote address at a national seminar held THE MOST REALISTIC by the Faculty of Law UPN Veteran East Java and Faculty of Law, Trunojoyo University, Wednesday (30/9) at the Constitutional Court CHOICE IN PANDEMIC TIMES Building. Public Relations Photo / Gani.

onstitutional Justice Arief parties to feel. The impact permeates re-organize face-to-face trials in the Hidayat gave a keynote at all aspects of life, including in the fields courtroom by applying strict health the National Seminar and Call of law and justice. For the Constitutional protocols to Constitutional Justices, The of Papers with the theme Court, continued Arief, since its inception Constitutional Court employees, and C“Law and Technology Transformation the Constitutional Court has declared other parties present. Apart from that, in Strengthening and Resilience of itself a modern and trusted court, this the Constitutional Court also limited the the State in the New Normal Era” situation is addressed rationally. The number of parties who attended directly on Wednesday (30/9/2020) virtually use of modern information technology, in the courtroom. The Constitutional through the Zoom Petition. This activity which has actually been implemented Court determined that each party was held in collaboration with the and accompanied the Constitutional present was at most 5 (five) people, Faculty of Law, UPN Veteran East Court so far, is increasingly finding its either legal or principal. In addition, the Java and the Faculty of Law, Trunojoyo urgency and momentum in the current Constitutional Court also gave options University. In the event, Arief delivered a Covid-19 pandemic. to the parties who would participate keynote with a specific theme according “One of them is how to readiness in the trial, to his position and experience as a to apply modern information technology However, with the re- Constitutional Court Justice, namely tools with all the supporting resources implementation of the Large-Scale “Virtual Trials at the Constitutional to hold a virtual trial,” said Arief to the Social Restrictions (PSBB) strictly in Court”. Arief stated that the judiciary speakers and seminar participants. the DKI Jakarta area about two weeks should not stop as far as possible At the beginning of the Covid-19 ago, the Constitutional Court took a firm to provide legal certainty, benefits, pandemic, the Constitutional Court policy to hold virtual trials. That is, the and justice for justice seekers. In all decided to postpone trials of all cases. Constitutional Justice Panel Board is in situations, the judiciary should continue As a result, legal certainty and justice the court room of the Constitutional to ‘stand tall’ in line with the large duties through decisions as expected by justice Court, while the parties are allowed to and roles it plays. seekers are hampered. On that basis, attend only virtually. Likewise the Constitutional Court based on the evaluation and analysis “At this point, the Petition of (MK). It must be admitted, during the carried out on a number of aspects, remote (virtual) trials with the help of Covid-19 pandemic it was hard for all the Constitutional Court took steps to the latest information technology tools is the most realistic option,” said Arief. UTAMI ARGAWATI/NUR R.

Number 164 • October 2020 23 ACTION HUMAS MK/GANIE

Constitutional Justice Daniel Yusmic P. Foekh was a resource person in the Advocate Professional Special Education (PKPA) activity held by DPC Peradi Ambon, THE COURT’S PROCEDURE LAW Friday (2/10) at the Constitutional Court Building. Public Relations Photo / Gani.

onstitutional Justice Daniel results of general elections. “ Then examination panel sessions and plenary Yusmic P. Foekh explained Article 24C Paragraph (2) of the 1945 hearings of trial examinations. The the material “Constitutional Constitution states, “The Constitutional panel session is attended by three Court Procedure Law” virtually Court is obliged to give a decision on the Constitutional Justices, while the C(online) in Advocate Professional Special opinion of the House of Representatives plenary session is attended by at Education (PKPA) on Friday (2/10/2020). regarding alleged violations by the least seven Constitutional Justices. This activity was organized by DPC President and / or Vice President The Constitutional Court sessions are Peradi Ambon in collaboration with the according to the Constitution.” open to the public, except for the Pattimura University Law Faculty. As Apart from that, added Daniel, Judges Consultative Meeting (RPH). In an introduction, Daniel explained about there is another additional authority addition, those who wish to litigate at judicial power in Indonesia. “Article 24 for the Constitutional Court, namely the Constitutional Court can apply for a Paragraph (2) of the 1945 Constitution adjudicating disputes over the results video conference in accordance with the states,” Judicial power is exercised by of regional head elections until a special Constitutional Court Regulation (PMK) a Supreme Court and judicial bodies judicial body is formed. In the legal Number 18 of 2009. Another and very under it in the environment of general considerations of the Constitutional important thing is the pronouncement courts, religious courts, military courts, Court Decision Number 97 / PUU-XI / of the decision. The Constitutional Court state administrative courts, and by a 2013, the Constitutional Court stated adjudicates at the first and last level Constitutional Court. . “ that in order to avoid doubt, legal the decisions are final. The decision has Furthermore, Daniel said, based uncertainty and the vacuum of the permanent legal force since it has been on Article 24C Paragraph (1) it is institution that has the authority to pronounced in a plenary session open stated, “The Constitutional Court has resolve disputes over regional head to the public. In accordance with Article the authority to judge at the first election results because there is no law 47 of the Constitutional Court Law. “The and last levels whose decisions are regulating this matter, the settlement Court’s decision is erga omnes. Even final to examine the law against the of election result disputes regional though it was requested by individuals Basic Law, decide disputes over the heads remain under the authority of or individuals, the enforcement of the authority of state institutions whose the Constitutional Court. decision is binding on all citizens or authority is granted by The Constitution, In this presentation, Daniel also the general public and influences legal decides the dissolution of political discussed the trials at the Constitutional politics in Indonesia, “said Daniel. parties, and decides disputes over the Court, which consisted of preliminary NANO TRESNA ARFANA/NUR R

24 Number 164 • October 2020 HUMAS MK/BAYU

Constitutional Justice Suhartoyo in the Class VIII Advocate Professional Special Education (PKPA) activity held by the Faculty EFFORTS TO FIGHT FOR of Law, As-Syafi’iyah Islamic University in collaboration with DPN Peradi on Saturday CONSTITUTIONAL RIGHTS (3/10/2020). Photo: Public Relations / Bayu.

rocedural law relates to the the Constitutional Court referred to case, advesarial, and a case where there means or instruments that in the constitution include examining are no parties and only a Petitioner and must be understood when laws against the Constitution, resolving no Respondent. If someone submits becoming an advocate. This disputes over the authority of state a request for a judicial review at the Pis useful for enforcing material laws institutions, deciding to dissolve political Constitutional Court, it is possible relating to problems faced by principals. parties, and decide on disputes over that there is a related party and the Without mastering it, an advocate or general election results, while the Government and the The House of legal attorney may not be able to fight Constitutional Court’s obligation is Representatives in this case only for constitutional rights and justice to provide an opinion on suspected act as information providers. “So the for the principals he helps. That was violations by the president according Government and the The House of the opening statement expressed by to the 1945 Constitution. There is also Representatives explained everything Constitutional Justice Suhartoyo in the additional authority granted by the 1945 at the request of the Constitutional Class VIII Advocate Professional Special Constitution, but not derived from the Court. On the basis, there was a Education (PKPA) activity held by the constitution, namely handling disputes petition by the Petitioner so that the Faculty of Law, As-Syafi’iyah Islamic over the results of Regional Head Constitutional Court summoned the The University in collaboration with DPN Elections (PHP Kada). House of Representatives / Government Peradi on Saturday (3/10/2020) through In connection with the procedural regarding the existence of a formal the Zoom Meeting. “With regard to the law of judicial review (PUU), Suhartoyo and material review of a legal product Constitutional Court, explained that with regard to the made by the legislators, “explained In the Constitutional Court, procedural law of judicial review, what Suhartoyo. continued Suhartoyo, the law of must be understood is that there is a SRI PUJIANTI/LULU ANJARSARI the procedure is slightly different formal and material examination. In this from the respective authorities that procedural law of judicial review, the accompany it. Some of the powers of nature of the case is not a controversial

Number 164 • October 2020 25 ACTION HUMAS MK/IFA

Deputy Chief Justice of the Constitutional Court Aswanto was a resource person for the 3rd Batch of the Advocate Professional Special Education (PKPA) organized by the Indonesian Advocates Association (Peradi) in collaboration with Halu Oleo University through the Zoom UNLIMITED TIME Meeting Petition, Sunday (4/10) in Jakarta. Public Relations / Ifa Photo.

eputy Chief Justice of the Constitutional Court. “So, Article 24 by the Constitutional Court are those Constitutional Court (MK) Paragraph (2) of the 1945 Constitution promulgated after amendments to Aswanto was a resource is the basis for the formation of the the 1945 Constitution. According to person for Special Education Constitutional Court,” said Aswanto. him, this article has been declared Dfor Advocate Professionals (PKPA) unconstitutional based on the Aswanto explained, the authority Batch 3 with the theme “Court Judicial of the Constitutional Court is regulated in Constitutional Court Decision Number Procedure Law.” This activity was Article 24C Paragraph (1) and Paragraph 066 / PUU-II / 2004 Law No.1 of 1987 organized by the Indonesian Advocates (2) of the 1945 Constitution, Law no. 24 on Kadin). Thus, the Constitutional Court Association (Peradi) in collaboration of 2003 concerning the Constitutional has the authority to examine all laws with Halu Oleo University through the Court as amended by Law no. 8 of that have been passed. Other than that, Zoom Meeting Petition on Sunday 2011 Article 10 paragraph (1) and based on Decision No. 138 / PUU-VII / (4/10/2020). At the event, Aswanto paragraph (2). And regulated in Article 2009 The Constitutional Court stated conveyed the legal basis for the 29 paragraph (1) and paragraph (2) that it had the authority to examine formation of the Constitutional Court, Law no. 48 of 2009 concerning Judicial Government Regulations in Lieu of Law namely based on Article 24 Paragraph Power. However, continued Aswanto, (Perpu). The Constitutional Court’s legal (2) of the 1945 Constitution, in which in the development of the exercise considerations stated that the Perpu judicial power is exercised by a Supreme of authority, the Constitutional Court created new legal norms with the same Court and judicial bodies under it in the stated that Article 50 of Law no. 24 of force as the Law. environment of general courts, religious 2003 contradicts the 1945 Constitution. UTAMI ARGAWATI/NUR R. courts, military courts, environment Article 50 contains provisions which state administrative court, and by a state that the laws that can be reviewed

26 Number 164 • October 2020 SWELLING REGULATIONS IN THE EXECUTIVE TERRITORY

onstitutional Justice Saldi Isra legislation is an issue that we have often forgotten when talking about became a resource person for never finished discussing after the regulations, the launch and discussion of amendments to the 1945 Constitution, Further responding to hyper the book “The Main Thought “said Saldi. regulation in Indonesia, Saldi questioned Cof Arranging Legislation in Indonesia.” Saldi continued, related to the the point where there was an overflow This activity was held by the Center for discussion in the book regarding of regulations outside the normal Pancasila and Constitutional Studies, the arrangement of regulations in limits. At least data on the number Faculty of Law, University of Jember Indonesia is a central topic that cannot of laws in Indonesia that are still on Wednesday (7/10/2020) virtually. be discussed comprehensively. Many effective compared to the number of “Congratulations to Dr. Bayu Dwi thinkers, reviewers, constitutional Government Regulations, Keppres, Anggono as the author of a book law circles, especially in relation to Perpres, Ministerial Regulations. “It relating to regulation arrangement in legislation, have carried out studies turns out that many regulatory swelling Indonesia. For me, books are a picture of regulatory arrangements that occurs in the executive area. I am almost of eternity. If people want to put their have been shaken by looking at the certain to say that hyper regulation thoughts in written form, it means that number of laws. For example, there actually exists in the executive realm, he is leaving his immortality for the is a statement that Indonesia is hyper “added Saldi. Saldi conveyed, an effort crowd, to be discussed. Regardless of regulation. There are too many laws to fix the swelling of regulations in whether people agree or disagree with and regulations in Indonesia. “We don’t Indonesia is by fixing the process of what we write, it becomes another argue with that kind of opinion. But as the birth of regulatory products in the matter. This is part of the responsibility a person who is given the basic capital executive area. If this can be done, of an academician to enrich literacy, to examine more comprehensively according to Saldi, serious problems especially literacy in constitutional our regulations, of course we have with the swelling of regulations can law. More specifically, readings related to look at them from various points be resolved. to legislation. Moreover, the issue of of view. One of the points that is (NANO TRESNA ARFANA/NUR R.) HUMAS MK/GANIE Constitutional Justice Saldi Isra became a resource person for the launch and discussion of the book “Principles of Arrangement of Legislation in Indonesia.” This activity was held by the Center for Pancasila and Constitutional Studies, Faculty of Law, University of Jember, Wednesday (7/10) virtually at the Constitutional Court Building. Public Relations Photo / Gani.

Number 164 • October 2020 27 ACTION HUMAS MK/IFA

The Constitutional Court Judge Wahiduddin Adams inaugurated the Constitutional Court Laboratory, which was established by ORGANIZING THE LEGAL SYSTEM the Sharia Faculty of IAIN Jember, on Friday (9/10) at the Constitutional Court Building. Public Relations / Ifa Photo.

onstitutional Justice Wahiduddin Furthermore, in his public lecture that resolve the possibility of disputes Adams was a guest speaker presentation, Wahiduddin Adams between state institutions that have in a public lecture with the discussed the topic of the idea of ​​ become equal and balance and control theme “The Authority of the constitutionalism which became each other (checks and balances). Along CConstitutional Court in Managing the the basis for the formation of the with that, an idea emerged that the Legal System in Indonesia” organized Constitutional Court. Then, regarding review of statutory regulations needs to by the Sharia Faculty of the State the duties of the Constitutional Court be traditionalized and even formalized Islamic Institute (IAIN) Jember, on in constitutional review which affects in positive legal rules. Friday (9/10/2020) in the morning the arrangement of the harmonization Wahid said, the essence of virtually. In the event, Wahiduddin also of legislation. In the final section, the Constitutional Court’s authority inaugurated the Laboratory of the Wahiduddin examines the problems to conduct constitutional review is Constitutional Court (MK) which was faced by the Constitutional Court. that the cases submitted to the founded by the Sharia Faculty of IAIN He said that democratic practices Constitutional Court are those that Jember. Wahiduddin in his remarks on that prioritize quantity may violate have a major influence on people’s the inauguration of the laboratory said the 1945 Constitution. Wahiduddin lives. The constitution is not only a that the boundaries between the field said that the majority vote does not written document that is considered of “legal science” as a legacy from necessarily reflect truth and justice. sacred. “What is more important is Western thought and the field of “sharia Amendments to the 1945 Constitution how constitutional values ​​can become science” are getting thinner. Studies of have transferred the supremacy of the a part of people’s lives. The spirit of the Constitution and the “Constitutional People’s Consultative Assembly to the the constitution becomes alive and Court” are dominated by references supremacy of the constitution. is brought to life by the community. from western scholars. However, a According to him, this fundamental Constitutional testing is at a different laboratory on the Constitutional Court change needs to provide institutional level from testing other laws and was established at the Sharia Faculty. and constitutional mechanisms as regulations, “he stressed.

“Therefore, well as the presence of institutions UTAMI ARGAWATI/NUR R

28 Number 164 • October 2020 SCOPE OF LEGISLATIVE TESTING

eview of legislation is not only Mada University, and was attended by consciousness. Meanwhile, in relation related to judicial review at 12 second semester students of the to the Supreme Court’s authority, the Constitutional Court (MK), Master of Law Litigation. Enny said that the Supreme Court but also those at the Supreme Regarding the constitutionality was determined to have limited judicial RCourt (MA). For this reason, students test conducted by the Constitutional review authority. That is, it can only must read and understand various Court, Enny said that what was examine statutory regulations under references so that in filing a case later, assessed was the formal and material statutes with conditions that must be both the Constitutional Court and the aspects of the norms tested. There are examined at the cassation level. “So, in Supreme Court can really understand so several measuring instruments used as essence the Constitutional Court has the that the test can be carried out properly. a barometer of judgment, including the authority to conduct constitutionality This was conveyed by Constitutional official text of the Constitution, written testing, meanwhile, the Supreme Court Justice Enny Nurbaningsih in an online documents that are closely related to has the authority to test the legality of public lecture with the theme “Testing the text of the UUD, constitutional norms, “said Enny. of Legislation in Indonesia” on Friday values ​​that live in the practice of (SRI PUJIANTI/LULU ANJARSARI) (9/10/2020) night. This activity was state administration in Indonesia, and organized by the Faculty of Law, Gadjah values ​​that live in people’s cognitive HUMAS MK/GANIE

Constitutional Justice Enny Nurbaningsih in an online public lecture with the Faculty of Law, Gadjah Mada University, Friday (9/10) Public Relations / Gani Photo.

Number 164 • October 2020 29 ACTION HUMAS MK/HAMDI

Deputy Chief Justice of the Constitutional Court (MK) Aswanto was a resource person for the Election School organized by Masika DISPUTE OVER ELECTION ICMI South Sulawesi in collaboration with General election supervisory agency and the South Sulawesi General Election Commissions on Saturday (10/10/2020) RESULTS IN ELECTION SCHOOLS online afternoon, Public Relations / Hamdi Photos.

eputy Chief Justice of the Regarding the dispute over the to handle disputes over the results of Constitutional Court (MK) election results, continued Aswanto, it is the first election. Then the Supreme Aswanto was the resource not only the dispute over the results of Court transferred its authority to the person for the Election School the legislative and presidential elections, high court to handle election disputes at Dorganized by Masika ICMI South Sulawesi but also the disputes over the results the district / city level. Meanwhile, the in collaboration with General election of the regional elections. Aswanto election disputes at the provincial level supervisory agency and the South said, Law no. 10/2016 as Amendment are still handled by the Supreme Court. Sulawesi General Election Commissions on to Law no. 8/2015 which is also the However, along with the times, through Saturday (10/10/2020) online afternoon. Amendment to Law no. 1/2015 is the long discussions, the authority to handle Aswanto presented the material “Ethical stipulation of Perpu No. 1/2014. “At the disputes over the election results was Court and Election Dispute”. time the perpu was submitted to the transferred to the Constitutional Court. Talking about election disputes The House of Representatives, the one After the Constitutional Court Decision referring to the 1945 Constitution, said given the authority to resolve regional was issued, the Court emphasized that Aswanto, the elections meant were election disputes was a special court. It handling disputes over the results of legislative and presidential elections. was based on the Constitutional Court’s the elections was not within the Court’s Then where is the location of the decision on the Regional Head Election authority. regional head elections (pilkada)? The Law. The Court decided that the pilkada “But why is the Court still handling Constitutional Court’s decision several was not an electoral regime, therefore it? Because there is a clause in the years ago (Decision Number 97 / PUU- it was not under the authority of the Constitutional Court Decision which XI / 2013) stated that the pilkada was Court. As we know, the authority of the states that it is the special court that not an election regime but a regional Court based on the Constitution has has the authority to handle disputes government regime. But over time, four powers and one obligation. This over the results of the elections. But as there are many discussions about includes election disputes as contained long as there is no special court, then pilkada, most people think that the in Article 22E of the 1945 Constitution, the handling of dispute over the results pilkada is an election regime. “Indeed, if “Aswanto explained. of the elections remains the authority we look at the constitutional basis, it is So why can the local election of the Constitutional Court, “explained somewhat different, there is Article 18 dispute be brought to the Constitutional Aswanto. of the 1945 Constitution and Article 22E Court? Aswanto explained that the NANO TRESNA ARFANA/NUR R of the 1945 Constitution,” Aswanto said. Supreme Court (MA) has the authority

30 Number 164 • October 2020 Constitutional Justice Saldi Isra became a resource person for the Discussion and Book Review activities organized by the Faculty of Social and Political Sciences, Andalas DISCUSS ELECTION DISPUTE University, on Saturday (10/10) in Padang. Public Relations / Ifa Photo. THOROUGHLY

onstitutional Justice Saldi Isra After dissecting the book, Saldi objected to exercising the authority was the keynote speaker at continued by explaining the final stage of to examine regional election disputes the “National Virtual Meeting the dispute settlement of regional head because they thought that the other of Masters Students of Election elections (pilkada) in the Constitutional authorities would be delayed to be CGovernance in Discussion and Book Court. He said that Article 22E of the resolved. Meanwhile, the Constitutional Discussion Activities on the Other 1945 Constitution regarding general Court once issued the authority to Side of the Regional Head Election: elections (pemilu) does not include resolve the regional head elections Understanding Contestation from a pilkada. Regional Head Election, he due to trauma. In the future, continued Practical Point of view”, on Saturday continued, was included in the regional Saldi, the legislators must determine (10/10/2020) morning virtually. During government division. So that it raises whether to force the Supreme Court to the event, Saldi started by dissecting the opinion that the election is different settle the election dispute, return to the the book written by Asrinaldi. He said from the pilkada. However, according to Constitutional Court, or form a special that this book tells about the practical Saldi, between the elections and the court. According to Saldi, when creating point of view of the regional elections. pilkada there is no difference when a special court, in the Indonesian legal However, the book does not discuss viewed from the context of direct system the special court would still be the practical side of dispute resolution elections. Saldi said, Article 24A of under the Supreme Court. He also said in the Constitutional Court (MK). He the 1945 Constitution states that the that the Constitutional Court was still hopes that this book can explain the Supreme Court (MA) has the authority upholding the mandate given by the parts of a book written that has been to judge at the cassation level, examine Constitution and the Law. published so that readers can track the statutory regulations under the law UTAMI ARGAWATI/LULU ANJARSARI progress of the writing. Apart from that, against laws, and have other powers according to Saldi, there is another granted by law. Initially, he continued, side that can be described so that it is the election dispute resolution process more comprehensive and can be fully was carried out by the Supreme Court. understood. However, Over time, the Supreme Court

Number 164 • October 2020 31 ACTION HUMAS MK/GANIE

The Chief Justice of the Constitutional Court Anwar Usman along with the Deputy Chief DESPITE THE PANDEMIC, Justice of the Constitutional Court Aswanto accompanied by the Secretary General of the Constitutional Court M Guntur Hamzah and the Constitutional Court Clerk TECHNICAL GUIDANCE ON Muhidin opened the Trainers Convention for Candidates for Candidates and Facilitators for Technical Guidance on Election Result Dispute in a virtual case, Friday (02/10) at DISPUTE RESULTS OF REGIONAL the MK Building Public Relations Photo / HEAD ELECTIONS IS STILL HELD Gani. VIRTUAL

elcoming the holding of parties who would be directly involved must be matured,” explained Anwar, simultaneous regional in the Simultaneous Regional Election opening the event. head elections on 9 to attend to listen to various provisions To the participants who followed December 2020, the regarding the provisions of proceedings online, Anwar invited the participants WConstitutional Court through the at the Court. to work with the intention of worship. Pancasila and Constitutional Education “And as a human being, it is impossible Center will hold technical guidance on Preparation for Guidance for Regional to work beyond his ability, therefore the Court’s procedural law in handling Election Disputes good cooperation between employees PHP Kada. Even though the world is Chief Justice of the Constitutional is needed,” he ordered. being confronted by Covid-19, the Court (MK) Anwar Usman opened the In the event organized by the Constitutional Court as the last place Trainers Convention for Candidates Pancasila and Constitution Education for justice seekers to resolve disputes and Facilitators for Technical Guidance Center, there were also speakers, over the election results, continues on Election Result Dispute, Friday namely Deputy Chief Justice of to strive to carry out its duties and (02/10/20) at the Constitutional Court the Constitutional Court Aswanto, functions. Armed with optimization Building. This activity is carried out Constitutional Justice Saldi Isra and of communication technology, the virtually as a preparation for the 2020 Constitutional Justice Suhartoyo. The Constitutional Court carried out online Regional Head Election on December three of them provided material to the and offline technical guidance. On this 9, 2020. “The implementation of participants consisting of substitute first occasion throughout October 2020, the pilkada is indeed a dilemma, but clerks, researchers, judicial officers, and the Constitutional Court invited the whatever happens, our preparations judges’ secretaries in the judicial field.

32 Number 164 • October 2020 Furthermore, said Aswanto, “There are changes in the procedures from the written answer submitted to revision of the petition can only be done regulated in the PMK (Constitutional the Court. once in the second 3x24 hours, and if Court Regulation), through this activity Constitutional Justice Suhartoyo on there is another correction the petitioner we want to equalize perceptions,” said the same occasion said, in Constitutional can submit it in the preliminary hearing. Aswanto. Court Regulation Number 5 of 2020 Meanwhile, Constitutional Justice According to Aswanto, there concerning Procedures for Procedures Saldi Isra in his presentation explained have been a number of changes in the in Cases of Dispute on the Results of that the new Constitutional Court registration of requests for dispute the Election for Governors, Regents and Regulation made it easier for officers over the results of the elections. If Mayors (PMK 5/2020), encouraging the who received case requests, so that in the previous Constitutional Court candidate pair team to be ready with the task load that previously rests on Regulation, continued Aswanato, evidence to be presented in the trial. officers who received case petitions petition registration can be done many . “And it must be prepared to become has shifted to the constitutional judges. times, then with this Constitutional a petitioner or any related party, by Saldi revealed that previously he had Court Regulation the petition can only continuing to monitor the progress experience that the answer submitted register once in the first 3x24 hours. “So of regional election cases that enter by the defendant in a trial was different there is no need to go back and forth through the mkri.id page,” he said. to the Constitutional Court building,” ILHAM M./LULU ANJARSARI he said.

Number 164 • October 2020 33 ACTION HUMAS MK/GANIE

The Chief Justice of the Constitutional Court Anwar Usman accompanied by the PROCEDURAL LAW TECHNICAL Secretary General of the Constitutional Court M Guntur Hamzah officially opened the Legal Technical Guidance for the Handling of Disputes on the Results of GUIDANCE FOR GENERAL the 2020 Election for Governors, Regents and Mayors For the General Election Commission virtually, Tuesday (6/10) at the Constitutional Court Building Public ELECTION COMMISSIONS: Relations Photo / Gani. BETWEEN FULFILLMENT OF DEMOCRATIC RIGHTS AND HEALTH

head of the 2020 Concurrent simultaneous regional elections on “These challenges and choices Regional Head Elections, the Tuesday (6/10/2020). seem tough. Even the implementation Constitutional Court (MK) is The Chief Justice of the of all of these was to be held on 23 preparing itself as a judicial Constitutional Court, Anwar Usman, September 2020, but changed to Ainstitution that adjudicates the final in his remarks said that in a pandemic 9 December 2020. The decision to results. One of the preparations made condition, the state’s responsibility continue implementing this agenda has by the Constitutional Court was to hold in the health sector as stated in been determined by the Government Technical Guidance on Procedure for Article 28H paragraph (1) of the 1945 and the The House of Representatives. Handling Dispute Cases on the Results Constitution is not easy to fulfill. , the So, the simultaneous Regional Head of the 2020 Election for Governors, current condition is very dilemma for the Election will be implemented with Regents and Mayors for the General state to hold the 2020 simultaneous strict health protocols with many Election Commission. This inaugural regional elections. On the one hand, adjustments, including later the dispute technical guidance in 2020 was held the state must fulfill the democratic settlement process in the Constitutional by the Pancasila Education Center rights of the people, but on the other Court, “explained Anwar in an activity and the Constitutional Court of the hand, there is the right to implement that was also attended virtually by Constitutional Court in a virtual manner health protocols which are also part of Plh. The Indonesian General Election and was attended by participants fulfilling the rights of the people in the Commission, Ilham Saputra, and the from 32 provinces organizing the health sector. Secretary General of the Constitutional Court M. Guntur Hamzah.

34 Number 164 • October 2020 Serious Learning carefully, and seriously. “It is also hoped Election Simultaneously. More clearly, Meanwhile, the executive chairman that the Constitutional Court will have Guntur said that the 220 simultaneous of the The General Election Commission a breakthrough, especially in the trial Regional Elections have been assigned of the Republic of Indonesia, Ilham during this pandemic. Of course the to 270 regions with 374 regional head Saputra, in his remarks said that the Constitutional Court will have certain candidate pairs which will be held on General Election Commissions institution rules to support this. Like how do we 9 December 2020. The Constitutional had enthusiasm to participate in this compile a dispute request and tips or Court in this case obtained additional activity by assigning parties who could strategies for formulating answers and authority to adjudicate the settlement of represent the institution. Ilham revealed evidence that will be given to the trial the dispute over the results. “To succeed that the holding of the Simultaneous at the Constitutional Court later, “said in this national agenda, Regional Head Election in 2020 is Ilham. the 4th concurrent regional election Prepare the Constitutional Court agenda that has been carried out by Understanding of Procedural Law Regulation 2020 the General Election Commissions. Meanwhile, in this activity The Constitutional Court (MK) However, he admitted that this election report, the Secretary General of the has one additional authority, namely requires heavier preparation because Constitutional Court M. Guntur Hamzah to examine and adjudicate cases of there are more election participants conveyed that the agenda of this disputes over the results of regional than in previous years. Even though activity was attended by around 352 head elections. Regarding this authority, the General Election Commissions online participants and 10 participants in the 2020 Regional Head Election, the has quite good experience in holding directly at the MK Pusdik, who came Constitutional Court made a provision elections and also resolving disputes from the General Election Commission, as outlined in the Constitutional over the results of the Constitutional starting from the RI General Election Court Regulation Number 5 of 2020 Court, the existence of the Technical Commissions, General Election concerning Procedures for Disputes over Guidance for Procedural Law in this Commissions Provinces / Regencies / Election Results of Governors, Regents period is felt to be very important and Cities spread over 32 provinces that and Mayors. In this case, the object must be followed properly, seriously, will hold the 2020 Regional Head of the dispute that will be examined HUMAS MK/HERMANTO

Constitutional Justice Daniel Yusmic P. Foekh as a guest speaker in the Legal Technical Guidance for Handling Dispute Cases on the Results of the 2020 Governor, Regent and Mayor Election for the General Election Commission on Wednesday (7/10/2020). Photo: Public Relations / Hermanto

Number 164 • October 2020 35 ACTION

and tried by the Constitutional Court the Young Registrar I MK Triyono Edi Constitutional Court to still be able to is the General Election Commission Budhianto as moderator. hold hearings in compliance with the (Respondent) Decree regarding the health protocol has been established determination of the disputed votes Development of the Court by the Government in preventing acquired by the regional head elections In the second session of this the spread of Covid-19. Wiryanto which are significant and can influence technical guidance, Senior MK Pan admitted that the Constitutional Court the determination of the elected M. Faiz also participated in sharing encouraged all activities between the candidate. knowledge with the participants parties in filing the 2020 PHP Kada This was conveyed by with an explanation entitled “The case as much as possible online, Constitutional Justice Daniel Yusmic P. Constitutional Court in the Indonesian Foekh when he was a guest speaker State Administration System.” In Answer in Description in the Legal Technical Guidance for his presentation, Faiz opened the In the last session of technical Handling Dispute Cases on the Results discussion by introducing models of guidance on the second day, Substitute of the 2020 Governor, Regent and constitutional courts in the world, Registrar of Level I Syaiful Anwar Mayor Election for the General Election namely a constitutional court with a shared his experiences in a presentation Commission on Wednesday (7/10/2020). judicial review system, a constitutional entitled “The Respondent’s Response This activity was held by the Center for council with a judicial preview system, Compilation Techniques”. In this session, Pancasila and Constitution Education and a constitutional court / council with Syaiful provided more techniques for and was attended by virtually 352 a hybrid review system. preparing answers than the theory of a participants from 32 provinces. Faiz explained more clearly that petition. According to him, ideally from In the material entitled “Procedures the judicial review system places new the answers from the dalildali that were for Dispute Cases on the Results of the laws that can be submitted for review submitted to the Constitutional Court in 2020 Governor, Regent and Mayor after they become laws or are ratified as every handling of the PHP Kada case, Election,” Daniel discussed more of laws. In this model, of course there will the General Election Commissions the articles in Constitutional Court be complaints because the norms have as the Respondent should provide a Regulation 4 and Constitutional Court been painstakingly drawn up, but later statement. Regulation 5 of 2020 which are prepared because they were sued and it turns “If those who have frequently to face the settlement of Dispute Cases out that their existence could have been proceeded to the Constitutional Court, on the Results of Governor Elections, canceled by the Constitutional Court. then the Petitioners’ arguments Regents and Mayors in 2020. Based However, the advantage of this system or contradictions must have been on the latest Constitutional Court is that the mismatch of norms can be commonly made. In essence, there is Regulation, explained Daniel, there was seen concrete or has the potential to no need to elaborate, the Respondent an update regarding the Related Party occur because it has been implemented simply answered firmly in the description which in the previous PHP Kada was in the life of the wider community. aimed at the object of the Petitioners the candidate pair for regional head argued, which contained rebuttals, who received the most votes in the Online Procedures such as the Respondent’s correct vote election. However, in the 2020 Regional Meanwhile, in the third session counting. That is the main thing that Head Election, Election Observers who of this technical guidance, Young Clerk the Respondent needs to understand, are registered and receive accreditation II MK Wiryanto explained the material ”explained Syaiful. from General election supervisory entitled “Mechanisms and Stages, agency can become Related Parties. Activities, Schedules, Handling Dispute Details of the Court’s Authority in With a note, the Related Party has a Cases on the Results of the 2020 Handling Election Disputes direct interest in the petition submitted Governor, Regent and Mayor Election.” by the Petitioner. In his presentation, he requested that Parties who appear as plaintiffs “In addition, at the PHP Kada trial, the technical guidance participants in filing cases at the Constitutional the Respondent previously delivered first understand the procedural law Court (MK) do not need to have an an answer before the trial, but at PHP of the Constitutional Court before advocate background. People who feel Kada 2020 it was sufficient to convey entering the case handling stage their constitutional rights have been it during the examination session or mechanism, especially during this impaired can apply. Likewise with the the second trial,” explained Daniel, who pandemic there were several rules and Regional Head Election, the party that delivered the material accompanied by procedures that were adjusted by the can file a dispute as a Petitioner is

36 Number 164 • October 2020 a pair of candidates who think that Commissions and General election final “gateway” from the completion of their vote acquisition has suffered a supervisory agency, “said Aswanto. PHP Kada, so it is necessary to make loss. This was conveyed by the Deputy Furthermore, Aswanto said, the adjustments with the organizers of the Chairperson of the Constitutional Constitutional Court is still given a regional head election. “So, long ago the Court Aswanto in the official closing trial for the Handling of Dispute Cases Constitutional Court has coordinated ceremony of the Legal Technical on the Results of the 2020 Governor, with the General Election Commissions Guidance for Handling Dispute Cases Regent and Mayor Election, as long as institution to formulate provisions in the on the Results of the 2020 Election of there is no special court to examine settlement of Regional Head Election Governors, Regents and Mayors for the this matter. If there is a special court, cases later in the Constitutional Court,” General Election Commission (KPU) on the Constitutional Court will be able Aswanto added. Wednesday (8/10/2020). This technical to focus on the implementation of its For information, this technical guidance was organized by the Center main authority, namely judicial review. guidance activity is aimed at increasing for Pancasila and the Constitutional Considering that the handling of the understanding and increasing knowledge Education of the Constitutional Court PHP Kada case, continued Aswanto, of PHP Kada procedural law. This in a virtual manner which was attended was quite energy consuming and activity was held for three days (6 - by participants from 32 provinces the Court had to postpone trials of 8/10/2020). As for the material provided, organizing the simultaneous regional constitutional cases that had been among others, related to answer elections submitted by various parties. compilation techniques; the practice of “Therefore, whether there is an However, continued Aswanto, it preparing the Respondent’s response, advocate or not is a problem. That does not mean that the Constitutional and electronic information systems. may be what causes many parties to Court is not serious in handling the Meanwhile, technical guidance material feel more comfortable in litigating at 2020 PHP Kada case. According to was delivered by competent speakers the Constitutional Court because it is him, the Constitutional Court has been in their fields, such as Constitutional not too structural, does not charge any preparing for Constitutional Court Justices, Registrars, Junior Registrars, fees, and at the time of settlement Regulation Number 5 of 2020 for Researchers, and Constitutional Court of disputes over vote acquisition in a long time, including preparing the Employees. election disputes, a special room is stages of handling the case. This is done SRI PUJIANTI/LULU ANJARSARI also provided for the General Election because the Constitutional Court is the HUMAS MK/IFA

The Deputy Chief Justice of the Constitutional Court Aswanto closed the event of Legal Technical Guidance on Case Handling for the Results of the 2020 Election for Governors, Regents and Mayors for the General Election Commissions on a virtual basis, Wednesday (8/10) in Jakarta. Public Relations / Ifa Photo.

Number 164 • October 2020 37 ACTION HUMAS MK/IFA

The Chief Justice of the Constitutional Court Anwar Usman together with the Secretary TECHNICAL GUIDANCE FOR General of the Constitutional Court M. Guntur Hamzah opened the event for the Legal Technical Guidance of Concurrent Regional Election Results in 2020 for the Election PROCEDURAL LAW FORGENERAL Supervisory Body, Tuesday (13/10) at the MK ELECTION SUPERVISORY Building Public Relations / Ifa Photo. AGENCY: THE KEY TO A SUCCESSFUL AND DEMOCRATIC REGIONAL HEAD ELECTION

he Chairman of the as district / city Election Supervisory form of community involvement in Constitutional Court Anwar Committee are the key players for government through a democratic Usman gave a keynote speech the implementation of successful and system which has become known as in the opening of the Technical democratic elections. This Technical general elections. People in the concept TGuidance (Bimtek) of the Procedure for Guidance was held by the Constitutional of democracy are constructed as the Dispute Results of the Simultaneous Court with the hope of building synergy main stakeholders or the owner of Election of Governors, Regents and between state institutions in order the highest sovereignty in the state Mayors in 2020 for the Provincial, to realize the mandate of the 1945 administration system. Therefore, Regency / City Election Supervisory Constitution in the framework of continued Anwar, in order to maintain Bodies (General election supervisory building a democratic state based on the continuity of the democratic process agency). This activity was held virtually law, “said Anwar. and to safeguard the interests of various on Tuesday (13/10/2020) night at the Anwar conveyed that democracy groups, the norm which becomes a Pancasila and Constitution Education is a concept of a form of political common consensus and binds all of Center, Cisarua, Bogor. government that applies almost evenly them is the Constitution. This concept “On this occasion, I would like throughout the world. The involvement is known as nomocracy or norm to give special emphasis that General of people in one system of government sovereignty. election supervisory agency at the around the world seems to be a central and provincial levels as well necessity that cannot be avoided. The

38 Number 164 • October 2020 Biggest Regional Head Election Regulation No. 5/2020 explained that changes in the latest Constitutional Chairman of the Election a day after the Petition for a dispute Court Regulation. Supervisory Agency, Abhan, expressed over the results of the elections was his gratitude to the Constitutional entered into the Constitutional Case Regional Head Election Supervision Court for providing technical guidance Registration Book (BRPK), General Coordinator to General election supervisory agency. election supervisory agency would Constitutional Justice Manahan Even though it is implemented virtually, receive a copy of the petition from the touched on Law no. 6 of 2020 which this activity does not diminish the Petitioner. regulates the postponement of the meaning and purpose of technical “After that, hierarchically, ladies implementation stage of regional guidance. “This technical guidance is very and gentlemen, will gradually obtain a head elections due to the Covid-19 important for us to prepare something copy of the Petition according to the pandemic, so that the schedule that later in the process of dispute over needs relating to the General election for the pilkada session which was the regional election results, the position supervisory agency that oversees originally planned for September 2020 of General election supervisory agency the Petition submitted in the case became December 2020. The General will be the party giving information. concerned. This means that when you Election Commissions determined that I think this is important for us, ”said get a copy of the request, you will simultaneous regional elections would Abhan. no longer send any information. In be held on December 9, 2020. Then Abhan continued, 2020 is the the past, General election supervisory related to the dispute over trial results biggest regional election. A total of 270 agency sent a statement before the Regional Head Election must refer to the regions will hold regional elections in trial. During the trial, General election Regulation of the Constitutional Court 2020. The role that the General election supervisory agency delivered a response (PMK) No. 5 of 2020 as the newest supervisory agency ranks must play to the case filed by the Petitioner, the Constitutional Court Regulation. “For as election organizers, namely how to copy of which was given to you, one example, the accreditation of election solve various problems that will not day after the Petition was submitted observers was originally with the lead to disputes over the results of to the BRPK. This method is simpler, General Election Commissions but now the Constitutional Court. “I think this you can prepare a more comprehensive it is in the hands of General election requires hard work from our ranks, of statement, ”Suhartoyo explained to supervisory agency, so it becomes the course to maximize efforts to prevent, the 400 General election supervisory authority of Provincial General election supervise, and function to take action agency members who were present at supervisory agency or Regency / City in dispute resolution processes in the the technical guidance. General election supervisory agency,” 2020 Regional Head Election stages,” Suhartoyo said, one thing the said Manahan who also explained that said Abhan. Constitutional Court would apply in the Law no. 10 of 2016 still uses the term 2020 Regional Head Election Result Regency / City Panwas. Regional Head Election Referee Dispute (PHP Kada) trial was that there Manahan conveyed that General The second day of Technical was no room for uncertainty for General election supervisory agency is the Guidance on Procedure for Disputes on election supervisory agency. “In the supervisory coordinator of all regional the Results of Simultaneous Election past, the information was delivered two head elections. In addition, General for Governors, Regents and Mayors in days before the trial. But for the 2020 election supervisory agency is the 2020 for the Provincial, Regency / City Regional Head PHP case handling trial, it Information Provider, so it must have Election Supervisory Bodies (General was submitted during the session with data about what it has done in the field election supervisory agency) held by the agenda of receiving General election of supervision. The duties of General the Constitutional Court (MK) at the supervisory agency’s statement, the election supervisory agency have been Pancasila and Constitution Education Related Party’s statement and the stipulated in Article 22B of Law no. Center, Cisarua on Wednesday (14 / Respondent’s response. So even though 10/2016. The duties of the Provincial 10/2020) filled with various material ladies and gentlemen get a copy of the General election supervisory agency sessions virtually. Constitutional Justice Petition one day after the copy of the are stipulated in Article 28 of Law no. Suhartoyo together with Constitutional Petition is submitted to the BRPK, but / 2015. The duties of Regency / City Justice Manahan MP Sitompul presented actually the copy of the Petition is not General election supervisory agency are the material “Law of Procedure for final. Because at the preliminary hearing, stipulated in Article 30 and Article 33 Dispute Result of Election for Governors, the petition will have the potential to of Law no. 10/2016. Regents and Mayors in 2020”. Suhartoyo make a renvo or revision, “explained said formally in the Constitutional Court Suhartoyo regarding the significant

Number 164 • October 2020 39 ACTION

The Deputy Chairperson of the Constitutional Court Aswanto became the speaker and at the same time closed the Technical Guidance on Procedure for Dispute Result of Simultaneous Election of Governors, Regents and Mayors in 2020 for Provincial, Regency / City Election Supervisory Bodies (General election supervisory agency) virtually, Thursday (15/10) at the MK Building . Public Relations Photo / Gani.

Embryo Judicial Review in the United States. But the embryo of the parliamentary action must be said The Secretary General of the the birth of a judicial review occurred in to be invalid and the law can be tested. Constitutional Court M. Guntur England in 1701. At that time the British But in practice, says Guntur, there has Hamzah presented the material “The understood that the King was never never been a single law in Britain that Constitutional Court in the Indonesian wrong and always right. Over time, has been overturned. State Administration System”. John Locke’s conceptual understanding Guntur said, in accordance with the of the separation of powers within the Mechanism for Submitting a Regional consensus of legislators in Indonesia, state emerged, and then the paradigm Head Election Result Dispute Petition the Constitutional Court was formed. emerged that parliament is never wrong. The next session with the material “However, it is necessary to know the An expert named Suzanna Sherry also “Mechanisms and Stages, Activities, background of the establishment of said that there was no judicial review Schedule for Handling Dispute Cases the Constitutional Court. Therefore I practice, the judge could not review on the Results of the 2020 Election want to refresh all of you regarding the law, let alone cancel the law as a of Governors, Regents and Mayors” the Constitutional Court in our State parliament product. It was only then delivered by the Young Clerk I of Administration System, “added Guntur. that a judge named Sir Edward Coke the Constitutional Court Triyono Edy In simple terms, said Guntur, said that when the parliament acted, Budhiarto. “The Stages of Handling talking about the institutional history in case the law made by parliament is Dispute Cases on the Result of the of the Constitutional Court, this first against public rights, common sense, Election of Governors, Regents and happened in Austria. Meanwhile, the legal system in England, then all Mayors in 2020 begin with submitting the history of the practice of the can be monitored. Parliamentary actions the Petitioners’ petition, then completing Constitutional Court was the first time should be monitored. If it contradicts,

40 Number 164 • October 2020 and correcting the Petitioner’s petition. all stages of the election implementation easy job. To be an election supervisor, After that, it will conduct an examination along with supporting evidence. In both central and district / city, must of the completeness and revision of addition, follow-up on findings and / or have a strong mentality. Because those the Petitioner’s petition, “said Triyono reports and dispute resolution, namely who feel dissatisfied with the election Edy Budhiarto. the results of dispute resolution for all results tend to protest and even take Regarding the Mechanism for stages in the implementation of the physical actions, “said Aswanto. Submitting a Request for Dispute on the election along with supporting evidence. Therefore, said Aswanto, it is not Results of the Regional Election in 2020, easy to become a General election said Triyono Edy Budhiarto, it was made Election Supervisor is not an easy job supervisory agency commissioner at after the announcement of the General Deputy Chairperson of the the provincial, district / city levels. “That Election Commissions’s decision on Constitutional Court Aswanto officially is why I give my appreciation to Ladies election vote count results on December closed the Legal Technical Guidance for and Gentlemen who are pleased to 16-26, 2020 (provinces) and December the Results of Simultaneous Election be commissioners of General election 13-23 (districts and cities). Whereas for of Governors, Regents and Mayors supervisory agency in both provinces submission of Petitions on December 2020 for the Provincial, Regency and districts / cities,” said Aswanto. 16 2020-5 January 2021 at 24.00 WIB / City Election Supervisory Body Previously, several material (province), submission of Petitions on (General election supervisory agency) sessions were given in this Technical December 13 2020-5 January 2021 at on Thursday (15/10/2020) afternoon Guidance. There is material “Law 24.00 (district / city). virtually. Aswanto said, technical of Dispute Result of the Election guidance on this occasion was a reunion of Governors, Regents and Mayors General election supervisory agency for him because before becoming a in 2020”. Then the material “The Information Preparation Techniques constitutional judge, Aswanto had been Constitutional Court in the Indonesian The Technical Guidance activity an election organizer. Aswanto has State Administration System” and on the second day was closed with the empirical experience as chairman of material “Mechanisms and Stages, material “Techniques and Discussions the South Sulawesi Provincial Election Activities, Schedule for Handling on the Compilation of General election Supervisory Committee. Not only that, Disputes on the Results of the Election supervisory agency Information in Aswanto was also heavily involved as for Governors, Regents and Mayors in Disputes over the Results of the 2020 a selection team in the recruitment 2020” as well as material on “Techniques Election for Governors, Regents and of supervisory committees at the and Discussion on Preparation of Mayors” which was conveyed by the provincial and district / city levels. Information for General election Substitute Registrar of the Constitutional “At that time the election supervisor supervisory agency on Election Results Court Rizki Amalia. The systematics of was not permanent and his name was of Governors, Regents and Mayors. General election supervisory agency’s not General election supervisory agency 2020 Year ”. In addition, the material statement, according to Rizki Amalia, but Election Supervisory Committee. So “Practices for Preparing Information includes, among other things, the that at least, I can understand what for General election supervisory agency name and address of the General the duties and authorities of General on the Results of the 2020 Election for election supervisory agency and a clear election supervisory agency colleagues Governors, Regents and Mayors” and description related to the Petitioner’s in the field are. Even after I finished material on “Electronic Case Handling petition. carrying out my duties as Election Information Systems”. Then regarding the preparation of Supervisory Committee of South NANO TRESNA ARFANA / NUR R. the General election supervisory agency Sulawesi Province at that time, the statement, it must contain the identity recruitment of supervisory committees of the Petitioner as well as the General at the provincial and district / city levels election supervisory agency statement often involved me as the selection team. related to the subject of the Petition I always remind my friends who want which includes the implementation of to participate in the selection, that the supervision that has been carried out for job of an election supervisor is not an

Number 164 • October 2020 41 ACTION HUMAS MK/GANIE

The Chief Justice of the Constitutional Court Anwar Usman and the Secretary TECHNICAL PROCEDURE General of the Constitutional Court M Guntur Hamzah gave key lectures as well as officially opened the Technical Guidance for Handling the Results of the Election GUIDANCE FOR POLITICAL for the Governor, Regent Dam, Mayor for Political Parties virtually through the Zoom Meeting Petition, Tuesday (20/10) at the Constitutional Court Building. Public PARTIES:NOT ONLY DEPENDS Relations Photo / Gani.

ON THE CONSTITUTIONAL COURT be litigating at the Court,” said Anwar. According to Anwar, simultaneous regional elections were held in 2015, hief Justice of the Constitutional Anwar, with the pilkada, the people can 2017 and 2018 with similar regulatory Court (MK) Anwar Usman directly elect candidates for leaders in substances. officially opened the Technical the regions. Guidance for the Handling of Therefore, Anwar continued, the Thoroughly discuss procedural law Cthe Results of the Governor Election, regional election is the delegation of Regent Dam, Mayor for Political Parties people’s sovereignty to a person or The second day of Technical virtually through the Zoom Meeting pair of candidates (paslon). For this Guidance on Procedure for Disputes on Petition, on Tuesday (20/10/2020) reason, he continued, so that the purity the Results of Simultaneous Election of night. In the event which was attended of the people’s voice is maintained, the Governors, Regents and Mayors in 2020 by the Minister of Law and Human election process must be designed in for Political Parties (Parpol) held by the Rights Yasonna Hamonangan Laoly, a transparent manner with strict and Constitutional Court (MK) at the Pancasila Anwar said that in essence the regional accountable supervision. This is done and Constitutional Education Center, head election or pilkada is a concrete so that the electability of the regional Cisarua on Wednesday (21/10/2020) means for the people to determine head gets strong legitimacy because it filled with various sessions of material their representatives to sit in executive has a direct mandate from the people. virtually. positions at the regional level. “The success of case settlement at Constitutional Justice Wahiduddin “Public participation in the elections the Constitutional Court does not only Adams together with Constitutional is a form of people’s sovereignty in a depend on the Constitutional Court, but Justice Saldi Isra presented the material democratic system. In accordance with also depends on the various parties, “Law of Procedure for Dispute Result the name demos which means people especially the candidacy itself, the of Election for Governors, Regents and kratos which means government, success team from the candidate pair and Mayors in 2020”. Wahiduddin said ”said Anwar in front of 398 technical and the candidate’s attorney who will that the Constitutional Court prepared guidance participants. According to later accompany the parties who will two Constitutional Court Regulations

42 Number 164 • October 2020 regarding disputes over the results from various parties including related examination of the completeness and of regional head elections, namely parties and General election supervisory revision of the Petitioner’s petition, Constitutional Court Regulation No. agency as well as evidence in the file, continued with the recording of the 4 and 5 of 2020. Wahiduddin said “explained Saldi. Petitioner’s petition in e-BRPK. After that in every regional head election, With this, continued Saldi, the that, submit a copy of the Petition to the Constitutional Court always Constitutional Court will judge to get the Respondent and General election updates the MK regulations (PMK). the truth and then decide together supervisory agency. Then, submitting “The Constitutional Court replaced the subject matter. In addition, the an Petition as a Related Party and then the Constitutional Court Regulation - Constitutional Court will also decide notification of the hearing to the parties. Constitutional Court Regulation to make cases by conducting preliminary The next stage, conducts preliminary it run smoother. So the old Constitutional discussions conducted in the panel, examinations, a trial of evidence and a Court Regulation - Constitutional Court which will then be followed by the Judge Consultative Meeting. Until finally, Regulation did not apply. That is what results of the panel at the plenary which the decision / decision is pronounced we think is the benchmark in resolving is decided by 9 constitutional judges. So, as well as submission and delivery of the handling of cases resulting from continued Saldi, all constitutional judges a copy of the decision / decision. local election disputes, “he explained. participated in the decision. With regard to election participants, Difference in Votes Wahiduddin continued, it is generally Disputes over the results of regional Meanwhile, the material known that the participants are the head elections mechanism “Techniques and Discussions for pairs of candidates for governor, deputy In the next session with the the Preparation of Petitioners and governor, candidate pairs for regents material “Mechanism and Stages, Information from Related Parties in and vice regents, pairs of mayors and Activities, Schedule for Handling Dispute the Dispute on the Results of the 2020 deputy mayors. He further explained Cases on the Results of the 2020 Election for Governors, Regents and that at the 2020 Regional Head Election, Election for Governors, Regents and Mayors” delivered by the Substitute election observers who were registered Mayors” was delivered by the Young Registrar of the Constitutional Court and received accreditation from General Registrar III Wiryanto. “Announcement Syukri Asy’ari. Syukri said, the object of election supervisory agency could of the results of the examination of petition for an election case is limitative become Related Parties. However, the the completeness and correction of the because there is only one, namely the Related Party has a direct interest in Petitioners’ petition, continues with the vote count results determined by the the petition submitted by the Petitioner. recording of the Petitioner’s petition in General Election Commissions. Meanwhile, Constitutional Justice Saldi the e-BRPK,” he explained. Syukri emphasized that the Isra explained that the Constitutional Wiryanto said that the Petition registration grace period has Court deliberately reduced the pile of announcement of the results of the not changed. This is because it has been problems at an early stage. So, at this time the Constitutional Court took the stance that registration was carried out once. “So once the case is registered there will be no more additions and all kinds of things,” explained Saldi. Vote Difference Threshold Furthermore, regarding Article 158 of the Regional Head Election Law regarding thresholds not listed in the Constitutional Court Regulation, Saldi said the Constitutional Court would assess the accuracy of the article in the process. Saldi said, Constitutional Court Regulation functions to regulate things that are not mentioned in the Law. “If the petitioner uses the argument of The Deputy Chief Justice of the Constitutional Court Aswanto provided material in virtual technical Article 158 because it does not meet the guidance on the results of simultaneous election results for governors, regents and mayors in 2020 for threshold, the Court will prove it first. political parties, Wednesday (21/10) at the Constitutional Court Building. Public Relations / Ifa Photo. Because later there will be information

Number 164 • October 2020 43 ACTION

stipulated by law. He said, the grace Constitutional Court. election mechanism including regional period no later than 3 days from the head elections. “Because each of us has announcement of the vote acquisition. Political Parties Have an Important a duty and function. Even the duties “If online 24 hours can be sent to the Role in Democracy and functions in the Constitutional Court. Since the start of the elections, Technical Guidance on Procedure Court are closely related between the registration requirements have for Disputes on the Results of the Constitutional Court and Political not changed, but are still the same as Simultaneous Election of Governors, Parties, “he said. before, “he said. Regents and Mayors in 2020 For For information, this activity was Political Parties (Parpol) was officially held for 3 days, Tuesday - Thursday The Court’s Authority closed by the Deputy Chairperson of the (20-22/10/2020) from various The Technical Guidance activity Constitutional Court Aswanto virtually national political parties. This technical on the second day was closed with the on Thursday (23/10/2020) afternoon. guidance activity was attended by material “The Constitutional Court in the In his speech, Aswanto said 398 participants consisting of 384 Indonesian State Administration System” that political parties in a democratic participants participating online (online) presented by the Deputy Chairman of government system are institutions that and 14 participants taking part offline the Constitutional Court Aswanto. have an important role. “We cannot deny at the Pancasila and Constitution Aswanto said, the Constitutional Court is that the existence of political parties Education Center, Cisarua, Bogor. an institution of judicial power to judge a greatly determines the development of Resource persons who attended norm in the Act in line with the norms in the nation’s democracy. When friends this technical guidance consisted of the constitution. “Do not let our human in political parties can implement how constitutional judges, substitute clerks rights have been guaranteed by law but to do democracy in the internal sphere, to IT staff who explained the ins and then negated by a law,” he explained. then transmit it and affect the wider outs of procedural law disputes over Then, Aswanto explained that community, of course our country in the results of regional head elections. the Constitutional Court has 4 powers, the future can implement a better UTAMI ARGAWATI/LULU ANJARSARI namely examining laws against the democracy, “said Aswanto. 1945 Constitution, resolving disputes In addition, Aswanto said, as a over the authority of state institutions, judge, the Constitutional Court must deciding the dissolution of political be able to work professionally and The Deputy Chairperson of the Constitutional parties, and adjudicating disputes over maintain communication with anyone, Court Aswanto closed a series of Legal the results of general elections. He Technical Guidance activities for the including political parties. He said that Simultaneous Results of the 2020 Governor, said that the dissolution of political political parties play a role in fighting for Regent and Mayor Election for Political Parties, Thursday (23/10) in Jakarta. Public Relations / parties had never been decided by the people’s rights through the legislative Ifa Photo.

44 Number 164 • October 2020 HUMAS MK/ILHAM

Constitutional Justice Daniel Yusmic P. Foekh as a resource person in the Paralegal Studies for Churches XII Training held by the Bethel Indonesia Legal Aid Institute (LBH) virtually on Friday (25/9/2020). Photo: Public Relations / Inspiration. CONSTITUTIONAL JUSTICE AND THE DEVELOPMENT AND CHALLENGES OF THE WORLD OF LAW

t has been eight months since Constitutional Justice Daniel Yusmic P. of poor people who cannot fulfill their the Covid-19 pandemic has Foekh when he was a guest speaker at basic rights properly and independently. undermined Indonesia. Various the XII Paralegal Studies for Churches So, if you meet someone who has civil efforts are continuously made Training held by the Bethel Indonesia or criminal law problems, then this can by the Government and national Legal Aid Institute (LBH) virtually on be done by a paralegal in his defense, Istakeholders in overcoming it. Likewise Friday (25/9/2020). “explained Daniel in a presentation with the Constitutional Court (MK), In the activity moderated by Raja that raised the topic of discussion on” which in the mandate of the constitution Basar AN Harefa from LBH Bethel Duties, Functions and Authorities of the also plays a role in improving citizens’ Indonesia, Daniel said that in connection Constitutional Court. “ understanding of the constitution. In the with the existence of this legal aid, In connection with the struggle limitation of physical meetings, through the judicial review was submitted to for the constitutional rights of citizens technology-based public lectures, the Constitutional Court in two case in equality in the field of law, Daniel constitutional judges try to remain requests, namely the registered case explained to the training participants present to share knowledge, experience, Number 59 / PUU-X / 2012 and Number who came from various regions such and practice of legal knowledge for 88 / PUU. -X / 2012. Although the as East Kalimantan and Maluku that citizens. petition was withdrawn in the Petition the presence of the Constitutional Number 59 / PUU-X / 2012 and it was Court as part of the judicial power Paralegals Help Poor Citizens declared rejected in the Petition Number in Indonesia. Daniel stated that the Since the existence of Law 59 / PUU-X / 2012, in terms of legal Constitutional Court was actually Number 16 of 2011 concerning Legal considerations the Constitutional Court one of the institutions that exercised Aid, paralegals can still proceed to Number 88 / PUU-X / 2012 stated an independent judicial power to court to provide legal assistance to that the parties who can provide legal administer the judiciary to uphold poor and poor citizens. So, lecturers or assistance. law and justice. Because, continued law faculty students who are members “Legal aid is provided to legal aid Daniel, judicial power is related to the of an accredited legal aid institution recipients who face legal problems, protection of human rights and the (LBH) can certainly provide assistance ranging from civil and criminal law. Legal rights of citizens. to people in need. This was stated by aid recipients are any person or group SRI PUJIANTI/LULU ANJARSARI

Number 164 • October 2020 45 ACTION HUMAS MK/IFA

The Chief Justice of the Constitutional Court, Anwar Usman, took part in a virtual ceremony to commemorate the Pancasila THE CHIEF JUSTICE OF Power Day 2020, on Thursday (1/10) at the THE CONSTITUTIONAL MK Building. Public Relations / Ifa Photo. COURT ATTENDS A VIRTUAL PANCASILA MAGICAL DAY COMMEMORATION CEREMONY

hief Justice of the Constitutional Assembly Bambang Soesatyo read the the Unitary State of the Republic of Court (MK) Anwar Usman text of Pancasila, followed by the reading Indonesia,” said Puan. when reading attended the Pancasila of the text of the Preamble of the 1945 the vows. Pancasila Day Commemoration Constitution by the Chairperson of the The Pancasila Sanctity Day Cceremony 2020 which was held DPD RI La Nyalla Mattalitti. Commemoration Ceremony this time at the Pancasila Sakti Monument, Then, the Chairman of the is different from previous years because Lubang Buaya, East Jakarta, Thursday Indonesian Parliament Puan Maharani it was held in the midst of the Covid-19 (1/10/2020) in the morning virtually. read and signed the pledge of loyalty pandemic. Although not all ceremony The Pancasila Pancasila Day to Pancasila. “With the Grace of God participants can attend physically, they Commemoration Ceremony 2020 was Almighty, we who carry out this can still participate in the ceremony led by the President of the Republic of ceremony are fully aware that since virtually and the ceremony can still take Indonesia Joko Widodo and attended by the proclamation of the independence place solemnly. Before the ceremony the Vice President of the Republic of of the Unitary State of the Republic of was closed, the Coordinating Minister Indonesia Ma’ruf Amin. After the report Indonesia on August 17, 1945, in fact for Human Development and Culture from the ceremony officer, the Chairman there have been many undermines both Muhadjir Effendy read a prayer for the from within the country and abroad to of the Indonesian People’s Consultative good of the Indonesian nation.

UTAMI ARGAWATI/NUR R.

46 Number 164 • October 2020 HUMAS MK/IFA

The Chief Justice of the Constitutional Court Anwar Usman gave a lecture at a routine review event held by Bank Indonesia THE CHIEF JUSTICE OF THE (BI) on a virtual basis, Monday (5/10) at the Constitutional Court Building. Public CONSTITUTIONAL COURT GIVES Relations Photo / Gani. A LECTURE AT THE RELIGIOUS BANK INDONESIA (BI) STUDY PROGRAM

he Chief Justice of the teachings of Islam. If Muslims are wrong leadership of the Prophet Muhammad, Constitutional Court Anwar in practicing religious teachings, it is there were at least three major changes Usman gave a lecture at the also wrong for people outside of Islam experienced by mankind. These changes routine study program “BI to perceive the teachings of Islam. As include the social sector, the field of TReligion” held by Bank Indonesia (BI) Muslims, said Anwar, the most perfect faith, the field of state politics. on Monday (5/10/2020) in virtual and perfect example is the Prophet Currently, said Anwar, national afternoon from his office on the 15th Muhammad SAW. leadership in a circular and limitative floor of the Constitutional Court Building. Anwar continued, the presence manner has been determined in the “As we all know, the teachings of Islam of the Prophet Muhammad SAW had Constitution, for a maximum of five were revealed as a blessing for all given all mankind infinite blessings, years and can be re-elected to the worlds. Therefore, as Muslims we namely the light of guidance that had same office, only for one term of have a responsibility to practice Islamic penetrated the darkness of ignorance. office through the general election teachings as well as possible, “said History has told that before the Prophet mechanism. Therefore, the problem of Anwar Usman in an event attended by Muhammad was born, life at that time circulation and the format of national BI Governor Perry Warjiyo, BI Deputy was full of troublesome deeds that leadership in this context is certain Governors as well as BI officials and ruined human life. Even the heinous without the need to be interpreted or employees. deeds of mankind have degrading interpreted differently. Anwar said that Muslims are their dignity and dignity to the lowest NANO TRESNA ARFANA/LULU ANJARSARI a window display or a mirror of the point. Thanks to the exemplary and

Number 164 • October 2020 47 ACTION HUMAS MK/IFA

Inauguration of Ahmad Sudiro (left) as a permanent professor at Tarumanegara University in the field of Law, on Saturday CHAIRMAN OF THE (17/10) at the Tarumanegara University Building, Jakarta. Public Relations / Ifa CONSTITUTIONAL COURT: Photo. COOPERATION BETWEEN THE COURT AND HIGHER EDUCATION AS AN IMPLEMENTATION OF THE CONSTITUTIONAL MANDATE

hief Justice of the Constitutional held as a form of cooperation between At the event which was held by Court (MK) Anwar Usman the Constitutional Court and the Faculty applying the health protocol, Amad through video taping of Law, Tarumanegara University, are Sudiro in his scientific oration entitled congratulated Amad Sudiro as the moot court competition for the “Political Transformation of Justice as the Ca Permanent Professor of Tarumanagara Constitutional Court Chief Justice Cup,” Epicenter of Compensation Settlement University in the field of Law, at Building said Anwar in the video. Models for Aviation Service Consumers”, M Campus 1 Tarumanagara University In addition, the commitment of highlighted the need to evaluate the (Untar), Saturday (17/10). The event the Constitutional Court’s partnership value of compensation for aviation was also attended by Constitutional with universities is manifested in service consumers. According to him, Justice Arief Hidayat and the Secretary various forms of activities, such as joint aircraft manufacturers should also be General of the Constitutional Court M research, or the provision of research responsible for providing compensation Guntur Hamzah. materials, for campus researchers, who to consumers of aviation services, due Furthermore, Anwar Usman wish to research the Constitutional Court to aircraft accidents caused by defects in revealed that the Constitutional decisions, or for students completing the production of an aircraft, as a form Court had carried out a number of undergraduate or postgraduate studies. of Petition of the theory of absolute activities in collaboration with the publishing journals, public lectures, responsibility, by taking into account Faculty of Law, Untar. This is a form internships, seminars, competitions the principles of benefit, justice and of commitment to the partnership or moot court competitions on the legal certainty. between the Court and the campus procedural law of the Constitutional ILHAM WIRYADI MUHAMMAD/NUR R world. “Some of the routine activities Court and various other activities

48 Number 164 • October 2020 HUMAS MK/GANIE

The Chief Justice of the Constitutional Court Anwar Usman accompanied by the Secretary General of the Constitutional THE DELEGATION OF THE Court M Guntur Hamzah received an audience for the Delegation of the Indonesian Advocates Congress (KAI), Tuesday (20/10) in the Delegation Room, Fl. INDONESIAN ADVOCATES 15 The Constitutional Court Building. Public CONGRESS WANTS TO PARTICIPATE Relations Photo / Gani. IN CONSTITUTIONAL COURT of the administrators and members of TECHNICAL GUIDANCE the Central and regional Indonesian Advocates Congress. hief Justice of the Constitutional Furthermore, Lutfi, who The Chief Justice of the Court (MK) Anwar Usman represented Indonesian Advocates Constitutional Court Anwar Usman accompanied by the Secretary Congress, expressed his gratitude responded positively to Indonesian General of the Constitutional from the management and members Advocates Congress ‘s desire to CCourt M. Guntur Hamzah received an of Indonesian Advocates Congress participate in the Constitutional audience from the Delegation of the to the Constitutional Court because Court Technical Guidance activities. Indonesian Advocates Congress (KAI) on Indonesian Advocates Congress had Likewise the Secretary General of the Tuesday (20/10/2020) afternoon on the participated in the Constitutional Court Constitutional Court M. Guntur Hamzah. 15th floor of the Constitutional Court Technical Guidance (bimtek). According “Your Excellency, we have scheduled Building. “Our visit to the Constitutional to Luthfi, the existence of technical an online Technical Guidance of The Court is as a friendship, which God guidance is very beneficial for members Constitutional Court activity which willing can extend our life and open the of the Central and regional Indonesian is currently running. Hopefully later door of sustenance,” said Vice President Advocates Congress. Technical Guidance Indonesian Advocates Congress can of Indonesian Advocates Congress materials such as the Constitutional participate and we will try. Technical Lutfi Yazid accompanied by another Court Procedure Law, the history of the Guidance participants must first be Indonesian Advocates Congress Vice Constitutional Court in the world and selected who can participate because President Diyah Sasanti representing Indonesia, including the authority of it involves Zoom’s capacity of only the President of Indonesian Advocates the Constitutional Court of the Republic 400 people. Today we hold technical Congress Tjoejtjoe Sandjaja Hernanto, of Indonesia, techniques for drafting guidance for political parties, ”explained who was unable to attend due to illness. Petitions and others add to the insights Guntur. NANO TRESNA ARFANA/NUR R

Number 164 • October 2020 49 50 Number 164 • October 2020