Number 161 • July 2020 i 5th and 6th Floor, Constitutional Court Building Jl. Medan Merdeka Barat No. 6 Pusat ii Number 161 • July 2020 Number 161 • July 2020 DIRECTING BOARD: Anwar Usman • Aswanto • Arief Hidayat Editorial Greetings Enny Nurbaningsih • Wahiduddin Adams Suhartoyo • Manahan MP Sitompul Saldi Isra • Daniel Yusmic Pancastaki Foekh

DIRECTOR: rials at the Constitutional Court of the Republic of (Mahkamah M. Guntur Hamzah Konstitusi Republik Indonesia or “MK RI”) continue to be conducted by EDITOR IN CHIEF: Timplementing health protocols related to Covid-19. The enthusiasm of the Heru Setiawan litigants remains high. Likewise, the Constitutional Court Justices remain active and enthusiastic in leading the trials. Many new cases are presented, while the DEPUTY EDITOR-IN-CHIEF: old cases are in the revision trials until it is time for the hearing by experts as well Fajar Laksono Suroso as the publication of statements from state institutions. MANAGING EDITOR: Towards the end of June 2020, the Constitutional Court has also held Mutia Fria Darsini oral sentence pronouncements for judicial reviews, such as for the Fiduciary EDITORIAL SECRETARY: Guarantee Law (UU Jaminan Fidusia), Traffic and Transportation Law (UU Lalu Lintas Tiara Agustina dan Angkutan Jalan or “UU LLAJ”), Position of Notary Law (UU Jabatan Notaris) and EDITOR: others. Meanwhile, the cases that are still on trial until mid-July 2020 and has Nur Rosihin Ana not yet been decided are the Corruption Eradication Commission Law (UU Komisi Nano Tresna Arfana • Lulu Anjarsari P Pemberantasan Korupsi or “UU KPK”), the Electronic Information and Transactions Law (UU Informasi dan T ransaksi Elektronik or “UU ITE”, the Criminal Code REPORTER: Procedures (Kitab Undang-undang Hukum Acara Pidana or “KUHAP”), and so on. Ilham Wiryadi • Sri Pujianti As for the non-trial activities, the collaborations between the Constitutional Yuniar Widiastuti Court and a number of campuses as well as institutions continue to exist virtually Panji Erawan and often display interesting topics presented by the Constitutional Court Utami Argawati • Bayu Wicaksono Justices. Among them are: “Discussion on the Relationship between State and CONTRIBUTOR: Religion” and “Political Economy Law during a Pandemic”. In addition, there is also Pan Mohamad Faiz other news, for instance, “The Court Holds a Pre-Simulation for the Preparation Bisariyadi of Election Dispute” and “The Court Holds IT-Based Simulation of Constitutional Luthfi Widagdo Eddyono Court Regulation on Regional Election Dispute”. This is a positive thing not only for Wilma Silalahi the Constitutional Court but also for law and justice observers amidst Covid-19 Paulus Rudy Calvin Sinaga pandemic. M. Lutfi Chakim The July 2020 edition of the KONSTITUSI Magazine as usual presents a Muhammad Anis Zhafran Al Anwary variety of distinctive and informative rubrics, starting from the Editorial, Main Andri Yanto Report, Courtroom, Action, Talks, and many other rubrics. Hopefully, this will be useful for loyal readers of the KONSTITUSI Magazine. This is it for the editorial INTERNATIONAL AFFAIRS note. At last, enjoy reading this magazine. Stay healthy for all of us. Hopefully, Sri Handayani Covid-19 pandemic will soon disappear and the situation in our country will Immanuel Hutasoit improve again. 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 @Humas_MKRI Mahkamah Konstitusi Mahkamah Konstitusi RI mahkamahkonstitusi Telp. (021) 2352 9000 • Fax. 3520 177 Email: [email protected] Website: www.mkri.id Number 161 • July 2020 1 DAFTAR ISI

4 MAIN REPORT

CONSTITUTIONALITY OF DEPUTY MINISTERS QUESTIONED

President ’s decision to appoint 12 deputy ministers results in the re-reviewing of the constitutionality of provisions regarding deputy ministers in the Constitutional Court.

SALAM REDAKSI 1 EDITORIAL 3

12 CASE BRIEF 16 ACTION

THE COURT DECIDES TO REVIEW THE CEREMONY IN THE MIDDLE EXISTENCE OF THE REGIONAL INDONESIAN OF PANDEMIC CHILD PROTECTION COMMISSION (KOMISI PERLINDUNGAN ANAK INDONESIA DAERAH OR “KPAID”) OF THE CHILD PROTECTION LAW.

2 Number 161 • July 2020 EDITORIAL

DEPUTY MINISTERIAL POSITION QUESTIONED (AGAIN)

everal public positions within the institutional the Deputy Governor is positioned at the echelon IB level, structure of the state continue to exist even and Deputy Regent or Deputy Mayor at the echelon IIA. This though they are not explicitly mentioned in the departs from the initial design of the Deputy Regional Head 1945 Constitution (Undang-Undang Dasar or “UUD as a companion to the Regional Head, so that he is elected S1945”), for example Coordinating Minister, Attorney by the elected Regional Head, not directly elected in pairs by General, Chairman of the KPK, Deputy Governor, Deputy the people. This has also become an interesting discourse. Regent, and Deputy Mayor. The question is: are these From the aforementioned discourse regarding the positions automatically unconstitutional or contrary to the position of the Coordinating Ministers and Deputy Regional Constitution? That also happens with the position of Deputy Heads, it is known that there are interesting issues that Minister, which was once questioned, that is now being become discourses and of course require answers, both questioned again in the Constitutional Court. Since it is not constitutionally and practically. This also seems to be the case stated in Article 17 of the 1945 Constitution, back in 2011 with the position of Deputy Minister, even though, the discourse the position of Deputy Minister was considered contrary to on constitutionality and practicality of the position of Deputy the 1945 Constitution by the Petitioner for judicial review Minister should have ended after the Constitutional Court of the State Ministry Law. Before finally, the Constitutional decided on Decree No. 79/ PUU-IX/2011 dated June 5, 2012. Court made its decision in Decree No. 79/PUU-IX/2011. The Constitutional Court’s decree provides a clear Prior to the discussion on Deputy Minister, a discourse constitutional mandate that, as regulated in Article 10 on the position of the Coordinating Minister had been put of the State Ministry Law, the existence of a deputy forward. Harjono, a former member of the Ad Hoc Committee minister in a certain ministry does not contradict the 1945 I of the People’s Consultative Assembly Constitution and does not contain issues of the Republic of Indonesia (Panitia Ad of constitutionality. According to the legal Hoc I Majelis Permusyawaratan Rakyat considerations of the decree, whether it or “PAH I MPR”) who also served as a is mentioned or not mentioned in the law, Constitutional Justice, once said that the the appointment of deputy ministers is position of Coordinating Ministers was actually part of the president’s authority. problematic and its position was not Thus, from a substantial point of view, clearly regulated in the 1945 Constitution. there is no constitutionality problem. In the 1945 Constitution, the Minister of This also means that if something is not Defense (Menteri Pertahanan), Minister explicitly stated in the 1945 Constitution, of Home Affairs (Menteri Dalam Negeri), but is regulated in the Law, it does not and Minister of Foreign Affairs (Menteri conflict with the 1945 Constitution. Luar Neger) have a higher position than Apart from that, what is declared other ministers. But in practice, the contrary to the 1945 Constitution is the three of them are under the Coordinating explanation of Article 10 of the State Ministry Minister. Harjono asked then, with the fact Law. The explanation of Article 10 of the State that there are Coordinating Ministers, do Ministry Law, which stipulates that a deputy they want to be led by their subordinate minister is a career official and not a member ministers? This is unthinkable. Harjono of the cabinet, is out of sync with Article 9 argued, to prevent hierarchical problems, paragraph (1) of the State Ministry Law. If the the coordinating ministerial positions deputy minister is a career official, he or she should be held by the three fundamental ministers. For there will have no position in the organizational structure of example, the Coordinating Minister for Political, Legal, the ministry. So, this creates legal uncertainty that is contrary and Security Affairs (Menteri Koordinator Bidang Politik, to Article 28D paragraph (1) of the 1945 Constitution. Hukum, dan Keamanan or “Menkopolhukam”) is held by However, it turns out that the Constitutional Court the Minister of Defense. Harjono’s opinion, regardless decision is not considered as a reference. That means it of whether he agrees or not, is interesting to study. has not answered the question regarding the position of A similar but different discourse arises regarding the Deputy Ministers. In fact, currently, the constitutionality position of Deputy Regional Heads. Because it is not included of the position of the Deputy Minister is questioned again in the 1945 Constitution, the position of Deputy Regional in the Constitutional Court using a slightly different issue. Heads is considered unconstitutional and should not exist The President’s action to have appointed twelve Deputy in the constitutional system. Moreover, in recent years, Ministers seems to make Article 10 of the State Ministry the phenomenon of ‘breaking up of partnerships’ between Law be re-examined under case No. 80/PUU-XVII/2019. regional heads and deputy regional heads has had implications Let us then look forward to the end of the case and hope for public services and political stability in the regions. An that it will provide adequate and complete answers. And, it opinion has emerged, even if it is deemed constitutional is possible that in the future the question of the positions that a Deputy Regional Head is needed, it is proposed that of the Coordinating Minister and Deputy Regional Head also the Deputy Governor not be directly elected but instead require a constitutional confirmation, just like the position appointed by the Regional Head. The official does not come of the Deputy Ministers. Greetings from the Constitution! from politicians but comes from the bureaucracy. For example,

Number 161 • July 2020 3 MAIN REPORT

CONSTITUTIONALITY OF DEPUTY MINISTERS QUESTIONED

President Joko Widodo’s decision to appoint 12 deputy ministers results in the re-reviewing of the constitutionality of provisions regarding deputy ministers in the Constitutional Court.

Twelve deputy ministers are inaugurated at the State Palace, Jakarta, on Friday, October 25, 2019. Photo: setneg.go.id

4 Number 161 • July 2020 t is not the first time that the that requires special handling, the Explanation of Article 10 of the constitutionality of the deputy President can appoint a Deputy State Ministry Law. The six legality ministerial position is reviewed Minister in a particular Ministry”. problems were; first, there was an in the Constitutional Court. In At that time, the Petitioner for excess in the appointment of deputy 2011, the National Movement case No. 79/PUU-IX/2011 argued ministers so that they seemed Ifor Corruption Eradication (Gerakan that the requirement for deputy inconsistent with the background Nasional Pemberantasan Tindak ministers to be appointed only from and philosophy of the formation Pidana Korupsi or “GN-PK”) chaired career officials was detrimental to the of the State Ministry Law. The by Adi Warman submitted a request constitutional rights of GN-PK cadres. decision read by the Chief Justice for a judicial review of Article 10 of In the petition registered on October of the Constitutional Court for the Law Number 39 of 2008 concerning 25, 2011, the Petitioner also argued period 2008 – 2013, Mahfud M. the State Ministries (State Ministry that the existence of 20 deputy D., explained that the formation of Law). Article 10 of the State Ministry ministers appointed by President deputy ministers what was based Law states, “If there is a workload was on legal facts at that time, namely increasingly burdening the 2011 a formation without job analysis State Budget, causing a deficit and job specifications, which clearly of Rp1.8 trillion. Regarding the gave a strong impression that the request, on April 19, 2012, the Court deputy minister position was only decided in its legal consideration formed as a political camouflage and that Article 10 of the State Ministry political prize. Law explained that, from the point Second, when appointing a of view of the President’s authority, deputy minister, the President did not to appoint deputy ministers was not specify the workload for each deputy a matter of norm constitutionality. minister. This, then, inevitably gave This, according to the Court, was a strong impression that the action because the President’s authority was more political than appointing to appoint a deputy minister in the civil servants professionally in context of handling an increasingly public offices. Third, according to heavier workload did not contradict the Explanation of Article 10 of the the constitution if it was viewed from State Ministry Law, the position of the point of prioritizing the goals to deputy ministers is the career of be achieved (doelmatigheid) or the a civil servant. However, in their value of benefits to meet the growing appointment, it was unclear whether hopes and needs of society. the position was structural or The Court considered that functional. Fourth, deputy ministers the legal uncertainty has emerged should have been selected through precisely as a result of the a selection process, however, the Explanation of Article 10 of the facts at the trial revealed that the State Ministry Law which was also direct election and inauguration were reviewed by the GN-PK. This article carried out by the president himself. states, “What is meant by a “Deputy Fifth, there were changes to Minister” is a career official and is the presidential regulation twice not a member of the cabinet.” related to the inauguration of deputy ministers in October 2011. This has Legality Issues led to the perception of some people In this decision, the Court who considered the changes as an stated that there were six legality effort to justify candidates who

SETNEG.GO.ID issues in regulating the position of did not meet the requirements to Deputy Ministers as stated in the

Number 161 • July 2020 5 MAIN REPORT

be appointed as deputy ministers. Again Questioned a Sahid University student reviewed Sixth, there were complications in On October 25, 2019, President the constitutionality of the deputy the deputy minister’s office term. As Joko Widodo appointed 12 deputy minister’s position. In the petition a bureaucratic official in a career ministers to assist several ministers submitted on December 23, 2019, position, the deputy minister’s office in the Indonesia Onward Cabinet the Petitioners argued that Article 10 term should end with the retirement (Kabinet Indonesia Maju). This of the State Ministry Law violated its period, not with the ministerial term. inauguration is based on the constitutional rights. The Petitioner Finally, the Court stated that Decree of the President of the argued that the deputy minister the Explanation of Article 10 of the Republic of Indonesia No. 72/M of did not have clear functions and State Ministry Law was contrary to 2019 concerning the Appointment duties as stipulated in Article 9 of the 1945 Constitution and had no of Deputy State Ministers of the the State Ministry Law. Article 9 of binding legal force. “This partially Indonesia Onward Cabinet for the the State Ministry Law states that granted the Petitioners’ petition. Period of 2019-2024. However, the the assistant for the minister is the The Explanation of Article 10 of inauguration of 12 deputy ministers secretariat general or the secretariat Law Number 39 of 2008 concerning has drawn criticism among the of the ministry. State Ministries contradicts the public. “In Article 9 paragraphs (1), (2), 1945 Constitution of the Republic of Additionally, the existence of (3), (4) here (ref. State Ministry Law), Indonesia,” said Mahfud MD reading the deputy minister was questioned, it is clear that the organizational the Decision No. 79/PUU-IX/2011. especially on the constitutionality of structure is arranged, namely the This decision shows that the the matter. Bayu Segara who is the leaders are the ministers. The position of deputy minister remains Chairman of the Forum of Law and assistant to the leaders is the constitutional because it is a part Constitutional Studies (Forum Kajian general secretary. The main tasks of the prerogative authority of the Hukum dan Konstitusi or “FKHK”) executors are the directorate general. president. and Novan Lailathul Rizky who is HUMAS MK/GANIE Viktor Santoso Tandiasa as the attorney conveys the revision points of the petition for reviewing the State Ministry Law, Monday (13/1) in the Plenary Meeting Room of the Constitutional Court Building. Photo: Public Relations/Gani.

6 Number 161 • July 2020 INFOGRAPHIC PHOTO OF DEPUTY MINISTERS OF THE INDONESIA ONWARD CABINET

BUDI GUNADI SADIKIN WAHYU SAKTI ZAINUT TAUHID MAHENDRA SIREGAR Wakil Menteri BUMN TRENGGONO Wakil Menteri Agama Wakil Menteri Luar Negeri Wakil Menteri Pertahanan

JERRY SAMBUAGA SUAHASIL NAZARA JOHN WEMPI WETIPO BUDI ARIE SETIADI Wakil Menteri Perdagangan Wakil Menteri Keuangan Wakil Menteri PUPR Wakil Menteri PDTT

ALUE DOHONG SURYA TJANDRA KARTIKA WIRJOATMODJO ANGELA TANOESOEDIBYO Wakil Menteri LKH Wakil Menteri Agraria dan TR Wakil Menteri BUMN Wamen Pariwisata & Eko Kreatif

Number 161 • July 2020 7 MAIN REPORT

The supervisors are the inspectorate there was absolutely no discussion The Prerogative of the President general. The supporters are agencies regarding the deputy minister. Regarding the petition, and/or centers, and the executors According to him, this shows that Ardiansyah, Director of Legislative of main tasks in the regions and/or legislators do not see the urgency Law Litigation of the Ministry of Law representatives abroad are following of a deputy ministerial position to and Human Rights, gave a statement statutory regulations. Based on the assist ministerial duties in carrying representing the Government on systematic description of the deputy out government affairs. February 10, 2020. In his statement, minister’s position as stipulated “… because the minister has the Government stated that the in Article 10 of the State Ministry been assisted by the assistant to appointment of a deputy minister Law, the deputy ministers do not the leaders, namely the secretary- was the prerogative of the president have a clear functional assignment general and the executor of the as the head of government as position,” explained Viktor Santoso main task that is the directorate stipulated in Article 4 paragraph (1) Tandiasa as the Petitioner’s attorney general with the subordinates who of the 1945 Constitution. for case No. 80/PUU-XVII/2019. are supervised by the inspectorate “The provisions of Article 10 of In the preliminary trial which general,” said Viktor in front of the the a quo law which principally states took place on December 10, 2019, Panel of Judges led by Chief Justice the president can appoint or not Viktor also explained that in the of the Constitutional Court Anwar appoint a deputy minister, also do formation of the 1945 Constitution Usman. not contradict Article 17 paragraph

Zainal Arifin Mochtar menjadi Ahli Pemerintah dalam sidang yang digelar pada 12 Maret 2020.

8 Number 161 • July 2020 Suasana sidang pengujian ketentuan wakil menteri.

(1) of the 1945 Constitution,” said was formed, the organizational they actually have their respective Ardiansyah. structure of the state ministries duties and functions that are clearly Based on these norms, has automatically increased. He different,” he explained. Ardiansyah continued, continued that the addition of the This, continued Ardiansyah, constitutionally, the president in organizational structure of the state was regulated in the State Ministry implementing Article 17 of the ministries implied there was an Law, Presidential Decree No. 60 of 1945 Constitution was given the organizational structure of the state 2012 concerning Deputy Ministers, technical authority to regulate with ministries as a whole. and Presidential Decree No. 68 of the required law. “So, the purpose of “Looking at the duties, 2019 concerning State Ministry having a deputy minister is to ease functions, and authorities, the Organization. the heavy burden of the ministries. position of deputy ministers is Meanwhile, regarding the Thus, if necessary, the deputy a position in the organizational Petitioners’ legal position, the minister can be appointed. However, structure of the state ministry that is Government did not find a causal if the ministry’s burden is not too one level below the minister and also relationship between the losses heavy, there is no need for a deputy one level above the secretary-general, suffered by the Petitioners and the minister,” he explained. inspectorate general and directorate- a quo article being reviewed which Related to the Petitioner’s general. Be the ministers, deputy was specific or actual in nature. argument that the deputy minister ministers, and structural positions did not have a clear function and in the ministerial organization, be Must be Dynamic task, Ardiansyah said that since the secretary-general, the inspector The government also presented the deputy minister’s position general and the directorate general;

Number 161 • July 2020 9 MAIN REPORT HUMAS MK/IFA Eko Prasojo as an expert from the government after giving his testimony at the judicial review of Article 10 of Law No. 39 of 2008 concerning State Ministries, Thursday (2/7) in the Court Room of the Constitutional Court. Photo: Public Relations/Ifa.

Zainal Arifin Mochtar as an expert opinion, the constitutional concept minister means an assistant in the in the trial to hear the Expert’s gave birth to the position of deputy State Ministry Law, its nature cannot testimony on March 12, 2020. The ministers,” said Zainal. be interpreted singularly and must Constitutional Law Expert from In addition, Zainal said that even be interpreted broadly. That is Universitas Gajah Mada explained legally the position of deputy the nature of helping to formulate that the function of government and ministers could be interpreted and implement ministerial policies,” its apparatus must also be dynamic. as a new functional position: to explained Zainal. So, the president in his authority help the president and be a part To occupy the deputy position can respond to the dynamics of of the leadership structure with with such a special workload, the government, one of which is by a special workload. This means continued Zainal, there must be choosing a deputy minister. that a deputy minister must fulfill conditions in the provisions of “The President as the highest a certain capacity with a certain special needs. Besides, there must be person in charge in the presidential level of competence. In essence, the constitutional ethical standards that system must have the authority to public official must adhere to the are universally binding. Regarding respond to the possible needs of a fulfillment of integrity, accessibility, the existence of the deputy ministers dynamic government. And that is and capability. with this special workload, Zainal actually the origin of when, in my “Thus, although a deputy saw that he could be an option.

10 Number 161 • July 2020 This must be done if there is a In the last trial which took place Political Position special workload needed to assist on July 2, 2020, the Government In the trial, Eko also did not the president in optimizing the also presented Eko Prasojo as an deny that the position of deputy government. Expert in State Administrative Law. ministers was political because it According to him, the appointment was based on the appointment made of the deputy minister was the Not Prohibited by the president. However, he added prerogative of the president as In his statement, Zainal that there was a goal of appointing a regulated in Article 4 of the 1945 emphasized that the position of deputy minister, namely to carry out Constitution. deputy minister was not explained in certain tasks. So, a deputy minister “This is possible for the the law, but it was not something that must have sufficient expertise. Also, president to do because of the could not be made in the government the important thing that needs to be dynamics and globalization that structure. As understood, in the present in a deputy minister was the are developing in the state. So, in presidential government system, office was expected to originate from essence, the President is given the Zainal explained that a president the professional community so that authority to design the structure of was the head of government. In they could build legitimacy to assist the government. And it needs to be this case, the president acts as the the minister in tasks that could understood that the constitution does party who instructs the affairs of the not be completed by bureaucratic not regulate all the technicalities government and its territory for the officials. of government as needed by the welfare of the people. This means Eko said that the deputy president in the implementation of that this function is carried out by minister could also act as a bridge his government,” explained Eko, who the president in his authority to fill in connecting high-ranking state also served as the Deputy Minister ministerial positions to support his officials who were very bureaucratic of the Ministry of Administration performance. in their relationship. Thus, the and Bureaucracy Reform (Menteri “So, the president can form a existence of a deputy minister Pendayagunaan Aparatur Negara non-ministerial institution, including can also function as a daily task dan Reformasi Birokrasi or “PAN-RB) the appointment of a deputy minister. implementer in the ministry to for the 2011-2014 period. Because, in the absence of the coordinate and ensure synergy Eko emphasized that even regulation, it does not mean the between institutions so that the though the position of deputy argument that the appointment of relationship can be well established. ministers was not mentioned in the a deputy minister is prohibited,” The present case that was 1945 Constitution, the president added Zainal. just in its last trial is only waiting could still organize as a form of Zainal argued that as the for the verdict from the Court. responding to the workload of the holder of power, a president could Let’s wait; whether the position government through discretionary determine the number of ministers, of deputy ministers is against the powers. This must be based on the the composition of the cabinet, and 1945 Constitution or it is still needs and strategic considerations as the appointments of other staff. constitutional. well as the challenges that would be That is why there are no provisions LULU ANJARSARI in the State Ministry Law that faced in the implementation of tasks strictly restrict the president in in the ministry. “So, the number of requiring deputy ministers. “Thus, deputy ministers in the government the position of deputy minister structure must be based on the finds its constitutional reasons,” complexity and priority programs of said Zainal. national development in a particular Discretionary Authority government,” said Eko.

Number 161 • July 2020 11

CASE BRIEF

“The judicial verdict, judges and states, first, Petitioner X’s petition cannot be accepted. Second, the Court rejects the Petitioners’ petition for anything and the rest,” said Anwar reading out the verdict of Decree No. 85/PUU-XVII/2019. The Petitioners argued that the absence of the phrase “including the Regional Child Protection Commission” in the norms of Article 74 paragraph (1) of the Child Protection Law and the absence of the word “obligatory” for regions to form the Regional Indonesian Child Protection Commission as an independent institution under Article 74 paragraph (2) of the Child Protection Law would have an impact on reducing child protection in the regions because KPAI could not reach out and supervise the administration of children’s rights in THE COURT DECIDES TO REVIEW all corners of the Republic of Indonesia. So, it was contrary to Article 28B paragraph (2), Article 28D paragraph (1), and THE EXISTENCE OF THE REGIONAL Article 28I paragraph (4) of the 1945 Constitution. INDONESIAN CHILD PROTECTION The concern from the Petitioners, who thought that there had been no supervision upon the implementation COMMISSION (KOMISI PERLINDUNGAN of children’s rights in remote areas of the Republic of ANAK INDONESIA DAERAH OR “KPAID”) Indonesia because there was no longer any socialization task in line with the supervisory function, was determined OF THE CHILD PROTECTION LAW. not fundamental. This was because, principally, Article 76 of the Child Protection Law determined that child protection THE Constitutional Court rejected the petition for judicial institutions were institutions that were given the role to conduct socialization. In this context, the supervisory review of Law No. 35 of 2014 concerning Amendments to Law function of KPAI could be synergized with the socialization No. 23 of 2002 concerning Child Protection. This application function. Moreover, the nomenclature used by the law was was submitted by the Indonesian Child Protection Commission a child protection institution (in lower case) so that KPAI (Komisi Perlindungan Anak Indonesia or “KPAI”), the Aceh Child (including KPAID) could conduct socialization. Supervision and Protection Commission (Komisi Pengawasan Based on the aforementioned considerations, the dan Perlindungan Anak Aceh or “KPPAA”) and the Regional Child Court believed that the Petitioners’ argument relating to the Supervision and Protection Commission of West Kalimantan issue of the unconstitutionality of Article 76A of the Child Province (Komisi Pengawasan dan Perlindingan Anak Daerah Protection Law was without sufficient reason and basis in or “KPPAD”). Chief Justice of the Constitutional Court Anwar law. (Utami Argawati). Usman read the decision on Tuesday (19/05/2020) in the Plenary Court Room.

PETITION FOR REGIONAL ELECTION LAW REVIEW NOT ACCEPTED PETITION for a judicial review of Law No. 10 of 2016 concerning the Election of Governors, Regents, and Mayors to become the Regional Election Law (Undang-undang Pemilihan Kepala Daerah or “UU Pilkada”) could not be accepted. The oral pronouncement hearing of Decree No. 13/PUU-XVIII/2020, submitted by Hendra Otekan Indersyah, was held by the Constitutional Court, Tuesday (19/05/2020), led by the Chief Justice of the Constitutional Court Anwar Usman. Previously, Hendra, who is an entrepreneur, said that he could not explain the actual or potential constitutional losses had the constitutional right to become a Deputy Governor of suffered by the Petitioners with the enactment of Article 176 the Special Capital Region of Jakarta (Daerah Khusus Ibukota paragraph (2) of the Election Law. Even if the Petitioners’ Jakarta or “DKI Jakarta”) for the Remaining Office Term description in their petition was considered to be a description (Sisa Masa Bakti or “SMB”) of 2017-2022. He felt that his of constitutional impairment, the Petitioners would be deemed constitutional rights have been harmed by the enactment of not to have suffered losses, either directly or indirectly, with Article 176 paragraph (2) of the Regional Election Law, that the enactment of the a quo norm. Moreover, there was also was the Petitioner did not have sufficient opportunities to be no cause-and-effect relationship between the Petitioners’ nominated or run for himself, starting from the selection of perceived impairment of his specific constitutional right and the prospective candidates then undergoing a fit and proper test, enactment of the a quo norm. and so on, in the Deputy Governor Election of DKI Jakarta for Thus, according to the Court, the Petitioner did not the 2017-2022 term. have the legal position to act as a Petitioner in the submitted In the legal considerations read out by Constitutional petition. Therefore, the subject of the petition was not Justice Suhartoyo, the Court believed that the Petitioners considered. (Utami Argawati)

12 Number 161 • July 2020

A NUMBER OF ADVOCATES REVIEW HEALTH QUARANTINE LAW

THE Constitutional Court held a trial for the review of Law No. 6 of 2018 concerning Health Quarantine (Health Quarantine Law) on Thursday (11/6/2020). The Petitioners, consisting of Runik Erwanto (Petitioner I) and Singgih Tomi Gumilang (Petitioner II), argued that Article 55 paragraph (1) of the Health Quarantine Law contradicted Article 28D Paragraph (1) and Article 34 Paragraph (1) of the 1945 Constitution. The Petitioners, who were Advocates, felt aggrieved because the Petitioners could not fly to accompany their clients in the trial due to the implementation of a large- scale social restriction (Pembatasan Sosial Berskala Besar or According to the Petitioners, the implementation “PSBB”) in Jakarta. This was due to the prohibition of flying of PSBB had nothing to do with the prohibition of people passenger aircraft imposed by the Ministry of Transportation from entering and leaving Jakarta because PSBB did not based on the Minister of Transportation Regulation No. 25 prohibit government offices from closing. The prohibition of 2020 concerning Transportation Control during the Eid of air transportation due to PSBB and the Eid period were Al-Fitr 1441 Hijriah Period in the Context of Preventing the very detrimental to the Petitioners. The government should Spread of Corona Virus Disease (Covid-19). Meanwhile, the have imposed a regional quarantine, so that all activities Panel of Judges who handled the Petitioners’ case wanted would stop, including the postponement of trials. But the to continue the trial even though the experts and the government was worried that if a regional quarantine was Petitioners as legal counsel could not attend the trial. This imposed, the central government would have to cover all was detrimental to the Defendant and the Petitioners. the basic needs of the people in Jakarta. (Sri Pujianti)

Election of Governors, Regents, and Mayors into Regional Election Law (UU Pilkada) was held by the Constitutional Court on Monday (15/6/2020). Petitioner I for Case No. 22/PUU-XVIII/2020 was Anwar Hafid, a member of the DPR RI and Petitioner II was Arkadius Dt. Intan Baso, a member of the DPRD of . Both of them examined Article 7 paragraph (2) letter s of the Regional Election Law. Salman Darwis as the Petitioners’ attorney explained that the provisions of Article 7 paragraph (2) letter s of the Regional Election Law were contrary to the 1945 Constitution, especially Article 7 Paragraph (1), Article 28D Paragraph (3), and Article 28H Paragraph (2). The Petitioner considered that conceptually members of the DPR, DPD, DPRD, and regional head positions were derived from the same positions, namely “political positions”. Thus, AGAIN, THE PROVISION FOR legislative members who wished or received a mandate from the people to run for the position of regional heads RESIGNATION BEFORE ADVANCING should have not needed to resign from their position. AS REGIONAL ELECTION CANDIDATES “In the context of fairness in the nomination of regional heads, the position of legislative members should be REVIEWED equated with incumbent candidates, who are only required to take leave outside the state’s responsibility during the THE requirement to resign as a member of the House campaign,” said Salman. of Representatives of the Republic of Indonesia (Dewan Furthermore, Salman said, to ensure that the Perwakilan Rakyat Republik Indonesia or “DPR RI”), a member nomination of legislative members in regional head positions of the House of Regional Representatives (Dewan Perwakilan did not hamper the performance of legislative institutions, Daerah or “DPD”), and a member of the Legislative Council the requirement for “resigning” could be applied only to the (Dewan Perwakilan Rakyat Daerah or “DPRD”) once being position of “apparatus of the council” without the need to appointed as a candidate pair for the Regional Election is leave the position of a legislative member. Therefore, in their again tested at the Constitutional Court. The inaugural petitum, the petitioners asked the Constitutional Court to trial to review Law No. 10 of 2016 concerning the Second state that Article 7 paragraph (2) letter f of the Pilkada Law Amendment to Law No. 1 of 2015 on the Government contradicted the 1945 Constitution and had no binding legal Regulations in Lieu of Law No. 1 of 2014 concerning the force. (Utami Argawati)

Number 161 • July 2020 13 CASE BRIEF

The Petitioner felt that her constitutional rights have been impaired by the enactment of Article 14 and Article 15 of Law 1/1946. In their petition, the Petitioner described a concrete case experienced by her husband. The Petitioner’s husband has been named a suspect by the Public Prosecutor based on Article 14 and Article 15 of Law 1/1946. This detention resulted in the Petitioner’s husband being detained with a demand for a maximum prison sentence of three years and a maximum prison sentence of two years as stated in Article 14 and Article 15 of Law 1/1946. Whereas it should have referred to Article 14 paragraph (1) of Law 1/1946 which stated that HUSBAND BECOMES TREASON SUSPECT, the public prosecutor could carry out detention during the WIFE SUES CRIMINAL LAW REGULATIONS examination at the level of investigation, prosecution and court until the final verdict. THE Constitutional Court held the first trial for the judicial “The petitioner thinks that Article 14 paragraph (1) review of Law No.1 of 1946 concerning Criminal Law can only submit applications during the examination at the Regulations (Law 1/1946), on Tuesday (9/6/2020) in the level of investigation, prosecution and court until the final Courtroom. The application registered with No. 33/PUU- verdict,” said Tonin Tachta Singarimbun as the attorney. XVIII/2020 was filed by Nelly Rosa Yulhiana, the wife of Yudi (Utami Argawati) Syamhudi Suyuti who was named a suspect by the Public Prosecutor for the crime of treason. LACK OF PPE FOR HEALTH WORKERS, MKHI SUES THE INFECTIOUS DISEASE OUTBREAK LAW

THE inaugural trial of Law No. 4 of 1984 concerning Infectious Disease Outbreaks and Law No. 6 of 2018 concerning Health Quarantine was held by the Constitutional Court on Wednesday (17/6/2020) in the Plenary Court Room. The Indonesian Health Law Society (Masyarakat Hukum Kesehatan Indonesia or “MKHI”), represented by Mahesa Paranadipa Maykel as the general chairman, became the Petitioner for Case No. 36/PUU-XVIII/2020. In this petition, the Petitioner examined Article 9 paragraph (1) of the Infectious Disease Outbreak Law which was considered detrimental to his constitutional rights. without using PPE that meets standards. In addition, health Aisyah Sharifa, one of the Petitioners’ attorneys said that care facilities that wish to provide PPE independently must MKHI intended to collect, foster, and advance the health law face the price of PPE that has risen sharply and has become in Indonesia through studies, research, training, mediation, scarce in the market. This has resulted in the rising number advocacy, and discussions in the field of health law for the of health workers who have contracted Covid-19 in the benefit of humanity and human rights. last two months, and the main factor that causes medical “Reviewing the a quo case is closely related to the personnel to be infected is that the PPE available is still management and regulation of Covid-19, in terms of lacking and not up to standard,” said Aisyah. regulation of equipment resources, human resources, As a result, said the Petitioner, much medical personnel as well as procedures and administration. MKHI has its became infected and even died. The number and percentage objectives stipulated in the statutes and bylaws of MKHI of health workers’ conditions were concerning or even terrible. and the majority of their members are health workers Whereas Article 6 of the Health Quarantine Law states that fighting against Covid-19. It becomes a fact that MKHI has the government, both central and regional governments are the legal standing to apply for a quo petition,” explained responsible for the availability of resources needed in the Aisyah to the Panel of Judges of the Constitutional Court, administration of health quarantine. Considering that PPE led by Constitutional Justice Enny Nurbaningsih. is the main thing needed in the implementation of health The Petitioner emphasized that it was the government’s services related to Covid-19, the availability of PPE and other obligation to provide Personal Protective Equipment (PPE) needed health resources is the responsibility of the central for health workers who were tasked with fighting Covid-19 government and local governments. However, according as fair legal protection and state responsibility for proper to the Petitioner, the explanation of what was referred to health facilities. The high rate of Covid-19 transmission as the resources required in the implementation of Health that is currently occurring, requires the fulfillment of health Quarantine was not in the article a quo. facilities for health workers, especially PPE, which is the To that end, in his petition, the Petitioner requested that main thing that health workers must obtain in dealing with the Judiciary stated the phrase “can” in Article 9 paragraph patients during the Covid-19 pandemic. (1) of the Infectious Disease Outbreak Law contrary to the “The absence of the government in regulating the 1945 Constitution and had no binding legal force. (Nano provision of PPE has made many health workers work Tresna Arfana).

14 Number 161 • July 2020 ACTION

HUMAS MK/GANIE

Chief Justice of the Constitutional Court Anwar Usman attends a virtual celebration of International Day against Drug Abuse, on Friday (26/6) from the 15th floor of the Constitutional Court CEREMONY IN THE MIDDLE Building. Photo: Public Relations OF PANDEMIC

ven though Indonesia and International Day against Drug Abuse virtually present were officials from many countries in the world are 2020 from the 15th floor of the ministries such as the Ministry of struggling to overcome health Constitutional Court Building on Friday Administration and Bureaucracy Reform, problems due to Covid-19 (26/6/2020). This event was organized higher state institutions including the Epandemic, life must continue. Including by the National Narcotics Agency (Badan Supreme Court as well as public figures the activities of government agencies Narkotika Nasional or “BNN”). and members of the society. in carrying out various ceremonies to The commemoration of This year’s International Day commemorate national and international International Day against Drug Abuse against Drug Abuse was broadcasted important days. From June to mid-July, 2020 was held differently from previous live by electronic media and through the Constitutional Court takes part by years due to the Corona Virus Disease live streaming of social media owned making adjustments to keep up with the 2019 (Covid-19) pandemic that hit by BNN and other social media. All solemn ceremony amid the pandemic. Indonesia and the rest of the world. This BNN employees and communities year, the event was held using virtual throughout Indonesia participated and International Day against Drug Abuse technology, but it did not diminish the spurred this event by carrying out Commemoration solemnity and noble goal of eradicating positive activities in the framework of Chief Justice of the Constitutional drugs in Indonesia. This event was a drug-free Indonesia. Court, Anwar Usman, was present attended virtually by Vice President NANO TRESNA ARFANA virtually at the commemoration of Ma’ruf Amin. Also appearing to be

Number 161 • July 2020 15 ACTION HUMAS MK/GANIE

Chief Justice of the Constitutional Court 74TH BHAYANGKARA Anwar Usman attends Bhayangkara’s 74th Anniversary 2020 from the 11th floor of the Constitutional Court Building, Wednesday DAY CEREMONY (1/7). Photo: Public Relations/Gani.

hief Justice of the Productive Community”. The ceremony congratulated the anniversary of Constitutional Court, Anwar was broadcasted using technology Bhayangkara. “I wish you a happy Usman, was present virtually virtually on the YouTube account of 74th Bhayangkara Day to the extended at Bhayangkara’s 74th the Presidential Secretariat. Also, the family of the Indonesian National Police,” Anniversary 2020 from the Bhayangkara’s anniversary ceremony said Anwar. C11th floor of the Constitutional Court ran unpretentiously because of the During the ceremony, Vice Building on Wednesday (1/7/2020) Corona Virus Disease 2019 (Covid-19) President Ma’ruf Amin, National Police morning. President Joko Widodo (Jokowi) pandemic that has hit Indonesia. Chief General Idham Azis, Defense led the anniversary ceremony at the The Chief Justice who attended Minister Prabowo Subianto, and State Palace, Jakarta. the ceremony appeared to be wearing Coordinating Minister for Political, Legal, In the ceremony of Bhayangkara’s a white shirt suit. Besides, he also and Security Affairs Mahfud MD were 74th anniversary, the National Police wore a mask following the coronavirus present. The event was also attended carried the theme “A Conducive prevention health protocol. The Chief via teleconference by all levels of Public Security and Order for a More Justice of the Constitutional Court Regional Police throughout Indonesia. BAYU WICAKSONO

16 Number 161 • July 2020 HUMAS MK/IFA

Constitutional Justice Suhartoyo gives a keynote speech in a collaboration webinar between the Constitutional Court and DISCUSSION THROUGH THE the Faculty of Law, Islamic University of Indonesia, Tuesday (30/6) at the Constitutional Court Building. Photo: Public USE OF TECHNOLOGY Relations/Ifa.

uring the pandemic, and Dynamics of Judicial Power” on realization of democratic values and the Constitutional Tuesday (30/6/2020). In the seminar a state of law. In the 1945 Indonesian Court continues to hold and discussion held via Zoom, Constitution, the division of authority for various discussions Constitutional Justice Suhartoyo was the holders of judicial power has been and web seminars with present as a keynote speaker with explicitly separated. This is because Dvarious agencies by utilizing long- several other speakers, such as Lecturer this field holds a key position in state distance communication technology. in Constitutional Law, Faculty of Law, UII administration, especially in resolving Constitutional Justices are present Idul Rishan and Sri Hastuti Puspitasari, disputes between individuals and virtually as speakers to share experiences as well as the Head of Public Relations individuals, individuals and countries, in the field of law and government. and Domestic Cooperation of the and institutions with the state. Constitutional Court Fajar Laksono According to Suhartoyo, the Independence of Judicial Powers Soeroso. independence of judicial power, The Constitutional Court in Starting his presentation, especially for justices, both supreme collaboration with the Faculty of Suhartoyo said that after the justices and constitutional justices must Law, Department of Constitutional amendment of the 1945 Constitution, have accountability and responsibility in Law, Islamic University of Indonesia the state development structure was the judiciary. This is intended so that (Universitas Islam Indonesia or “UII”) regulated to create state practices with independence, corruption in the organized a web seminar (webinar) that were consistent and balanced judicial power can be minimized. This entitled “Two Decades of Development and provided guarantees for the has been proven by the Constitutional

Number 161 • July 2020 17 ACTION

Court through its independence and Lawmakers collectively take the role of judicial authorities. “So, the politics impartiality in its decisions. Although protecting the basic rights of the people of law on judicial power is a form of these justices are representatives and achieving the goals of the state. state intervention which has a positive of three lines of power holders in “Actually, this is an ideal model, meaning and is necessary,” said Idul. Indonesia, they have ended their ties but on the other hand, there is the fact In fact, Idul saw that the threat to the to the supporting institutions. So, that in Ukraine and Romania, these two independence of judicial power could according to Suhartoyo, constitutional institutions conflict with each other. also come from within the judiciary justices in making decisions do not They even use the guise of legality itself, such as the performance of represent the institution that submitted and attack each other outside the lines an organization that had minimal them, but are guided by justice based of the constitution and weaken each supervision or the threat of the judicial on the constitution. In addition, other’s authority,” mentioned Fajar in budget. Thus, the personnel in the another important thing to create the webinar moderated by Allan FG judiciary, including the justices could the independence of judicial power is Wardhana, a lecturer at Department of maintain their independence. through transparency to eliminate the Constitutional Law, UII. Furthermore, UII lecturer Sri abuse of court power, including in the From these models, Fajar Hastuti Puspitasari in a presentation Constitutional Court. For this reason, adapted them to the Indonesian entitled “Reform and the Role of the the Court wholeheartedly carries out its state administration, especially how DPR in Recruitment of Justices” stated duties by striving to provide information the judicial power, more specifically that basically, reforms directed the services that are affordable, easy to the Constitutional Court, in relation state towards creating a democratic understand, and fully and well accepted to the DPR and the President, was political system through steps of by the public. “It is hoped that through rooted in constitutional enforcement. democratic consolidation. There is a public trust, the Constitutional Court According to Fajar, there are two ways close relationship between reform, can also produce a modern court that that the relationship between these consolidation, and the ultimate goal is fast and measurable and based on IT. institutions is enforced. First, the DPR of democracy. One of the concrete So that court contact is oriented toward and the President through constitutional steps is structuring representative fulfilling the public’s need for the law to legislation. This means that the authority institutions, political parties, elections. be created because of the strength of of this institution is attached to the This includes the involvement of the court work in the eyes of the public,” authority to interpret the constitution DPR in the election for the positions explained Suhartoyo. as outlined in a product called law. of supreme justices and constitutional On the same occasion, the Head Second, the Constitutional Court is an justices. In the judiciary, this is part of Public Relations and Domestic interpreter of the constitution who acts of the consolidation. According to Cooperation of the Constitutional passively when making decisions. Thus, her, this consideration is made for Court, Fajar Laksono Soeroso, in his in this case, the constitution is equally several reasons, including that the presentation entitled “The Relationship enforced by legislation and adjudication. DPR is an institution that carries out between the Constitutional Court and Meanwhile, Lecturer at UII Idul a representative function because it Lawmakers,” stated that there are two Rishan, in a paper entitled “State represents the people who elect its forms of relationship between the two Intervention and Judicial Power,” members. Furthermore, the DPR is a institutions, namely confrontational observed that in the past 20 years, manifestation of people’s sovereignty, and cooperative. These two models judicial independence should not the existence of DPR is nothing but have been carried out as a comparative be intervened by anyone. However, a function of checks and balances study in five countries such as according to him, state intervention amongst state institutions, and the Estonia, Hungary, Poland, Ukraine, is sometimes also needed, especially DPR’s existence is in the context of and Romania. In Estonia, Hungary, during political transitions. For him, limiting the power of the president. Poland, the relationship model tends what needs to be watched out for SRI PUJIANTI to be cooperative. Two institutions, from this intervention is whether it namely the Constitutional Court and the will later harm the performance of the

18 Number 161 • July 2020 HUMAS MK/IFA

Constitutional Justice Saldi Isra becomes a keynote speaker for the 20 Years Hukumonline.com webinar, on Tuesday (14/7) at the Constitutional Court Building. Photo: MASSIVE ONLINE TRIALS Public Relations/Ifa.

he Constitutional Court will who then had to adapt various things The spread of the pandemic, enter a massive trial agenda to carry out their duties and authorities. explained Sofyan, forced the e-court when handling disputes over In fact, the Constitutional Court itself is system that had been implemented since regional head election results. a judicial institution that has carried out 2010 in the Supreme Court to adapt to Therefore, the Constitutional justice long ago by utilizing information a new normal order for the institution’s TCourt must immediately design a and communication technology. So, work system. By maximizing technology parallel space for various parties to even during this pandemic, it is and minimizing direct meetings, it was participate in the online trial. That was not a complicated matter for the hoped that trials, especially for criminal the explanation of Constitutional Justice Constitutional Court to continue to hold cases that must be handled by the Saldi Isra in a web seminar of 20 Years the trial agenda. The Constitutional Supreme Court, could be held by forming a Hukumonline.com entitled “The Future Court only requires limited adjustments. working group to prepare for the intended of Law in Facing the New Normal Era.” “What is complicated is when the e-court throughout Indonesia. “Previously, the Constitutional Court situation forces all parties who have Then, a lecturer from STHI Jentera, has built an online court system, but now to come to the Constitutional Court to Bivitri Susanti, found that there were so it must be done massively because of this actually conduct online trial activities. many changes facing the legal world, pandemic. It is impossible for all parties in Then, how would the Constitutional not only in court cases but also in legal a case to come directly to the courtroom Court carry out its duty in guaranteeing education amidst Covid-19 pandemic that because there are strict health protocols the right to constitutional justice, has hit the world. All fields were forced to that must be obeyed. So, conducting trials especially concerning information adapt to the use of technology. However, via online facilities will fulfill the needs to security?” said Saldi during the event Bivitri admitted that she disagreed with hold trials at the Constitutional Court,” held on Tuesday (14/7/2020). the new normal concept. According to Saldi explained in the webinar which Meanwhile, Supreme Court Justice Bivitri, in a legal context, there was no was also attended by speakers, such as Sofyan Sitompul in his presentation need for the term new normal because Supreme Court Justice Sofyan Sitompul stated that since February 2020, various the basic framework was the rights of and a lecturer from Indonesia Jentera regulations have been launched by the citizens. So, Bivitri hoped this pandemic School of Law (Sekolah Tinggi Hukum government in response to the handling situation to be used as a momentum to Indonesia or “STHI”) Bivitri Susanti. of Covid-19 which has hit many countries evaluate the legal world, starting from the Saldi admitted that the impact of in the world including Indonesia. Then, legal framework, fulfillment of rights, and Covid-19 pandemic has been felt by currently, the government is also trying institutions. many parties, including the judiciary to continue to adapt to this pandemic. SRI PUJIANTI

Number 161 • July 2020 19 ACTION HUMAS MK/IFA

Constitutional Justice Wahiduddin Adams gives a keynote lecture at a webinar in collaboration with Law Faculty of the Islamic HARMONISASI NEGARA University of Indonesia, Friday (17/7) at the Constitutional Court Building. Photo: Public DAN AGAMA Relations/Ifa.

he Constitutional Court in In his presentation, Wahiduddin Wahiduddin said that in the past collaboration with Faculty Adams said that there were several the union of religion and state was of Law, Department types of separation between religion very strong because whoever was the of Constitutional Law of and state. Some were not friendly to leader of the state was also a religious the Islamic University of religion as done in Turkey, and some leader. According to him, secularism TIndonesia (Universitas Islam Indonesia, or were friendly like Indonesia. There was emerged from the movement of legal “UII”) held a webinar entitled “Building also a union of religion and state, called people because the law was made into Harmonious Relationships between a theocratic state. According to him, a science, as well as in other social State and Religion in Civil Society” on Indonesia is a religious national state, sciences. Meanwhile, the relationship Friday (17/7/2020). every religious adherent was to carry between the state and the Constitutional In the seminar and discussion out their religious teachings. Court, continued Bisar, was due to the held via Zoom, Constitutional Justice Then, Wahiduddin explained that emergence of a social contract stated in Wahiduddin Adams was present the articles in the 1945 Constitution the constitution. The establishment of as a keynote speaker with several provided guaranteed protection for all a constitutional court has limited scope other speakers, such as a lecturer in citizens to adhere to and implement for judicial review of the Constitution. Constitutional Law from the Faculty of their respective religious teachings. According to Bisar, the Constitutional Law Agus Triyanta, and a lecturer from Meanwhile, Constitutional Court Court has had intersections with religion the Faculty of Law UIN Raden Intan Researcher Bisariyadi delivered material in several judicial trials against the Lampung Yasin Al Arif, and Researcher on relationship formats between state Constitutional Court. Bisariyadi from the Constitutional Court. and religion. UTAMI

20 Number 161 • July 2020 HUMAS MK/IFA

Hakim Konstitusi Arief Hidayat menjadi pembicara dalam acara Webbinar yang digelar oleh Magister Hukum Universitas POLITIK HUKUM EKONOMI Sebelas Maret, Sabtu (18/7) di Gedung MK. SAAT PANDEMI

akim Konstitusi Arief bagaimana kita bernegara baik dalam “Politik hukum pembangunan Hidayat menjadi pembicara keadaan normal maupun tidak normal ekonomi, kita bisa lihat pembangunan dalam Seminar Nasional seperti yang terjadi sekarang,” kata ekonomi harus mengutamakan “Politik Hukum untuk Arief dengan materi “Politik Hukum pertumbuhan yang tinggi dibarengi Pembangunan Ekonomi Ekonomi di Era Pandemi Covid-19”. politik hukum pemerataan, apalagi di Menuju New Normal” pada Sabtu Dikatakan Arief, dengan mengacu nilai- H masa pandemi seperti sekarang. Kalau (18/7/2020) pagi. Kegiatan seminar nilai dasar Pancasila, maka semua tidak dengan upaya-upaya yang luar ini diselenggarakan oleh Magister warga negara harus dilindungi, tidak saja biasa, maka pertumbuhan ekonomi Hukum Universitas Sebelas Maret (UNS) negara yang bertugas melindungi warga tidak bisa dilakukan,” tegas Arief. melalui webinar yang diikuti sekitar negara tapi seluruh stakeholder bangsa Arief mencermati, secara 200 peserta di antaranya Rektor UNS Indonesia harus melindungi diri sendiri, proporsional antara politik pembangunan Jamal Wiwoho, Dekan FH UNS I Gusti keluarganya, masyarakat, hingga semua ekonomi yang mengutamakan tingkat Ayu Ketut Rachmi Handayani, para warga negara dan penduduk Indonesia. pertumbuhan yang tinggi diikuti peneliti, pejabat instansi pemerintah Bicara politik hukum dasar, ujar Arief, pemerataan, agak diganggu oleh kondisi maupun para dosen dan mahasiswa dapat dilihat dalam Pasal 28A Ayat yang tidak normal sehingga kita mau dari berbagai perguruan tinggi negeri (1) UUD 1945 mengandung nilai dasar tak mau harus menjaga hak hidup dan swasta seluruh Indonesia. Dosen bahwa negara harus melindungi hak masyarakat, melindungi masyarakat Fakultas Hukum UNS Andina Elok Puri hidup sekaligus hak untuk memperoleh agar tidak terpapar apalagi sampai Maharani menjadi moderator. kehidupan yang sehat bagi bangsa meninggal akibat Covid-19. Kalau Arief Hidayat menyampaikan, Indonesia. Kemudian dalam Pasal 34 masyarakat sudah terpapar Covid-19, pada 2020 seluruh dunia termasuk UUD 1945 menyebutkan dalam rangka biaya yang dibutuhkan akan luar biasa Indonesia mengalami situasi yang melindungi hak hidup bangsa Indonesia, menyerap anggaran, tidak saja anggaran luar biasa dengan adanya pandemi semua harus dipenuhi kebutuhan negara dan pemerintah, tapi juga Covid-19 yang mengubah pola perilaku ekonominya baik dari negara maupun anggaraan keluarga, masing-masing manusia. “Musuh kita adalah musuh semua stakeholder bangsa secara individu. Menurut Arief, politik hukum yang tidak kelihatan, secara terselubung gotong-royong agar tetap survive. yang dianut adalah politik hukum yang mengancam umat manusia. Acuan Selanjutnya dalam Pasal 33 Ayat (4) mengandalkan keadilan proporsional. yang kita lihat, bangsa Indonesia UUD 1945 secara jelas menyebutkan NANO TRESNA ARFANA berdasarkan dasar negara Pancasila pemenuhan kebutuhan ekonomi yang mengandung nilai-nilai dasar dilakukan secara bersama-sama.

Number 161 • July 2020 21 ACTION HUMAS MK/GANIE

BERSIAP UNTUK Prasimulasi dihadiri Wakil Ketua MK Aswanto, Hakim, Hakim Konstitusi Suhartoyo, Hakim Konstitusi Saldi Isra dan didampingi Panitera MK Muhidin, Kepala Pusat Teknologi PENANGANAN SENGKETA Informasi dan Komunikasi MK Budi Achmad Djohari, Senin (6/7) di Aula Lt. Dasar Gedung HASIL PHP KADA MK.

emilihan Kepala Daerah Kepala Daerah Serentak 2020, disepakati “Jadi kita harus punya satu Serentak 2020 akan segera Mahkamah Konstitusi (MK) menggelar pemahaman yang sama mulai dari NUP digelar pada 9 Desember pra simulasi penerimaan permohonan dan penerimaan permohonan,” ujarnya. 2020 mendatang. Sebagai perkara. Pra Simulasi digelar di Aula Untuk diketahui, Penyelenggaraan lembaga yang diberikan Gedung MK, pada Senin (6/7/2020). Pilkada serentak pada 9 Desember Pkewenangan untuk menangani Prasimulasi tersebut dipantau 2020 telah dituangkan dalam Perppu permasalahan perselisihan hasil oleh Wakil Ketua MK Aswanto, Hakim Nomor 2 Tahun 2020 sebagai Pemilihan Kepala Daerah Serentak 2020, Konstitusi Saldi Isra, Hakim Konstitusi penundaan Pilkada akibat Covid-19. MK mulai bersiap menyatukan satu Suhartoyo dengan didampingi oleh Rapat hari ini menegaskan keputusan pemahaman yang sama berdasarkan Panitera MK Muhidin, Kepala Pusat yang sudah diambil oleh pemerintah hukum acara yang telah disepakati. Teknologi Informasi dan Komunikasi MK dan DPR sebelumnya. Selain itu, Budi Achmad Djohari, serta Panitera penyelenggaraan Pilkada serentak ini Muda I, II dan III. Di sela-sela memantau sudah mendapatkan saran, usulan dan Prasimulasi PHP Kada: Satukan pra simulasi, Aswanto menyatakan pra dukungan Gugus Tugas Percepatan Pemahaman simulasi diadakan untuk menyatukan Penanganan Covid-19 melalui surat Dalam rangka persiapan satu pemahaman yang sama B-196/KA GUGUS/PD.01.02/05/2020 penanganan sengketa hasil Pemilihan berdasarkan hukum acara yang telah tanggal 27 Mei 2020. UTAMI/LA

22 Number 161 • July 2020 Wakil Ketua MK Aswanto berikan pengarahan dalam simulasi dan sinkronisasi Peraturan Mahkamah Konstitusi (PMK) tentang Perselisihan Hasil Pemilihan Kepala Daerah SIMULASI BERBASIS IT (PHPKada) Berbasis IT digelar Mahkamah Konstitusi (MK) pada Jumat (17/7/2020) pagi.

imulasi dan sinkronisasi dukungan sistem teknologi informasi, Sedangkan pemohon online, Peraturan Mahkamah (information technology, IT) MK. “Tim IT ungkap Budi, bisa melalui aplikasi Konstitusi (PMK) tentang MK siap mem-back up melalui sistem Sistem Informasi Penanganan Perkara Perselisihan Hasil Pemilihan yang sesuai dengan norma-norma yang Elektronik (SIMPEL) yang telah dibuat Kepala Daerah (PHPKada) kita masukkan dalam batang tubuh dan MK atau diarahkan ke pojok digital SBerbasis IT digelar Mahkamah Konstitusi tahapan-tahapan PMK PHPKada,” tandas yang sudah dsiapkan MK. “Pemohon (MK) pada Jumat (17/7/2020) pagi. Aswanto. melakukan entry data permohonan, baik Ketua MK Anwar Usman bersama Kepala Pusat Teknologi di rumah atau di pojok digital. Setelah para Hakim Konstitusi MK maupun Informasi dan Komunikasi (PTIK) MK mendapat tanda terima permohonan, para pejabat dan pegawai MK hadir Budi Achmad Djohari memaparkan dicatat waktu saat mengajukan dalam acara itu. Ketua MK Anwar presentasi terkait PMK PHPKada permohonan, dilakukan verifikasi, Usman berharap pelaksanaan sidang Berbasis IT. Disampaikan Budi, ada hasilnya berupa AP3,” jelas Budi. PHPKada mendatang akan berjalan dua jenis permohonan untuk PHPKada Baik permohonan dengan baik. “Insya Allah kami dapat yakni secara offline dan online. secara offline dan online, lanjut Budi, menuntaskan tahap yang penting Pemohon offline adalah pemohon atau berkasnya diterima oleh petugas sebagai persiapan menjelang sidang kuasanya yang datang langsung ke MK, penerima berkas permohonan PHPKada. PMK tentang PHPKada yang membawa berkas permohonan dan dan diperiksa kelengkapan berkas sudah ditandatangani ketua tim, akan langsung diterima petugas penerima permohonan. Selanjutnya ada segera diserahkan ke lembaga negara permohonan. Setelah itu mendapat kemungkinan terjadi perbaikan maupun terkait,” kata Anwar. nomor urut pengajuan permohonan. penambahan berkas permohonan Sementara Wakil Ketua MK Aswanto “Selain itu dicatat waktu saat dan kemudian diregistrasi oleh bagian menjelaskan simulasi dan sinkronisasi pemohon mengajukan permohonan dan penerimaan permohonan di MK. Setelah PMK PHPKada 2020 sudah dilakukan dilakukan verifikasi berkas. Berikutnya, itu dicatat dalam Buku Registrasi minggu lalu, membahas batang tubuh dan permohonan diinput oleh pegawai Perkara Konstitusi (BRPK) dan Akta tahapan-tahapan dalam PMK PHPKada. MK hingga menjadi akte pengajuan Registrasi Perkara Konstitusi (ARPK). Namun menurut Aswanto, pada Jumat 17 permohonan pemohon atau disebut NANO TRESNA ARFANA NRA Juli 2020 kembali dibahas karena perlunya AP3,” kata Budi.

Number 161 • July 2020 23 ACTION HUMAS MK/IFA

Ketua MK Anwar Usman bersama Sekjen MK M. Guntur Hamzah menerima audiensi dari MEMBUKA RUANG KERJA Dewan Pimpinan Pusat Kongres Advokat Indonesia, Selasa (30/6) di Gedung MK. SAMA INSTANSI

ebagai lembaga yang bertugas se-Indonesia. Saat itu terpilih Indra advokat yang anggotanya tersebar di memberikan pemahaman Sahnun Lubis sebagai Ketua KAI yang seluruh Indonesia. “Kerjasama kami konstitusi bagi setiap pertama. Selanjutnya pada 2014 diadakan dengan MK sangat kami harapkan untuk warga negara dan lembaga, kongres advokat se-Indonesia kedua sekarang dan ke depan,” ucap Siti. Mahkamah Konstitusi terus di Palembang. Kemudian pada 2019 “Kedatangan kami ke MK tidak ada Sberupaya menjalin dan membuka diadakan kongres advokat se-Indonesia tujuan khusus. Kedatangan kami adalah ruang kesempatan kerja sama dengan ketiga di Malang dan Siti Jamaliah Lubis bagian dari Bapak-Bapak juga sebagai berbagai pihak. Hal ini dilakukan guna terpilih sebagai Presiden KAI. orang-orang yang akan menerapkan semakin menggaungkan peran MK dalam “Saat ini KAI memiliki 34 DPD hukum nantinya. Kami berharap agar meningkatkan kesadaran berkonstitusi KAI yang tersebar di seluruh provinsi para anggota kami diberikan kesempatan setiap elemen masyarakat di Indonesia. Indonesia dan DPC KAI di setiap lagi mengikuti Bimtek MK menghadapi kabupaten. Jumlah anggota KAI saat pilkada serentak mendatang,” tambah Audiensi DPP KAI ini mencapai 30.000 orang. Kami Tommy Sihotang dari KAI. Ketua Mahkamah Konstitusi (MK) mengucapkan terima kasih kepada Terhadap hal-hal yang Anwar Usman didampingi Sekjen MK MK bahwa anggota kami sudah disampaikan delegasi KAI ini, Anwar M. Guntur Hamzah, Plt. Kepala Biro beberapa kali mengikuti bimtek yang Usman menyatakan rasa terima kasih Hukum dan Kepaniteraan MK Tatang diselenggarakan MK untuk menghadapi dan apresiasi yang besar. Bahwa Garjito, Kepala Biro Humas dan Protokol pilkada, pemilu maupun pilpres,” ungkap MK menyambut positif terkait MK Heru Setiawan menerima audiensi Siti yang hadir bersama Wakil Presiden penyelenggaraan bimtek bagi para Dewan Pimpinan Pusat Kongres KAI Bidang Organisasi Tommy Sihotang, advokat yang tergabung dalam KAI dan Advokat Indonesia (DPP KAI) di ruang Wakil Presiden KAI Irman Putrasidin penyelenggaran pendidikan advokat kerjanya, lantai 15 Gedung MK pada Bidang Antarlembaga serta Ketua oleh KAI. Dikatakan Anwar, MK akan Selasa (30/6/2020) siang. Bidang Antarlembaga KAI Budi Rahman. terus melakukan sosialisasi konstitusi Di awal pertemuan, Presiden Siti menuturkan, KAI sudah secara menyeluruh ke berbagai daerah KAI Siti Jamaliah Lubis menerangkan menyelenggarakan pendidikan advokat, agar tidak terjadi gagal paham mengenai sejarah terbentuknya KAI pada 2008 di sehingga KAI berharap ada narasumber pengertian konstitusi maupun berbagai Jakarta, dihadiri sekitar 5.000 advokat dari MK untuk mengisi materi pendidikan hal terkait di dalamnya. NANO TRESNA ARFANA

24 Number 161 • July 2020 FLASHES OF ACTION

MK Prioritaskan Program Penanganan Perkara Konstitusi

PROGRAM Penanganan Perkara Konstitusi merupakan program Mahkamah Konstitusi yang langsung bersentuhan dengan pelaksanaan tugas dan kewenangan konstitusional MK sebagai lembaga peradilan konstitusi. Hal tersebut dikemukakan Sekretaris Jenderal MK M. Guntur Hamzah dalam Sebagai ilustrasi dituliskan, pada Pada 2021, MK juga berfokus Rapat Dengar Pendapat (RDP) dengan 2021 nanti MK diperkirakan akan pada peningkatan kualitas SDM Komisi III Dewan Perwakilan Rakyat menangani perkara PUU sebanyak yang diarahkan untuk meningkatkan Republik Indonesia (DPR RI) pada Rabu 156 perkara. Jumlah perkara tersebut pelayanan teknis administrasi (24/6/2020) di Jakarta. didasarkan pada analisis dan tren peradilan dan administrasi umum. Dalam Laporan Kerja dan Anggaran rata-rata penanganan perkara PUU. Di Untuk dukungan teknis administrasi MK Tahun 2021, dituliskan bahwa pada samping itu, hal ini juga merujuk pada peradilan, peningkatan kualitas SDM tahun mendatang MK akan berhadapan rata-rata kenaikan penanganan perkara dilakukan melalui upaya peningkatan dengan beberapa penanganan perkara, PUU pada tahun-tahun sebelumnya pemahaman dan pengetahuan para di antaranya Pengujian Undang-Undang serta apabila mengaitkan dengan pegawai MK yang langsung bertugas (PUU), Sengketa Kewenangan Lembaga tema dan isu tertentu. Hingga 22 Juni mengawal kelancaran pelaksanaan Negara (SKLN), dan Perkara Lainnya, 2020, MK telah menangani 75 perkara. persidangan dan penanganan perkara Perselisihan Hasil Pemilihan Kepala Sementara itu, untuk perkara SKLN, MK konstitusi. Sehingga berdampak luas Daerah/Wakil Kepala Daerah tahun belum menerima perkara SKLN, namun pada peningkatan kualitas putusan MK. 2020, dan Peningkatan Pemahaman dapat diperkirakan pada TA 2021, MK (Sri Pujianti) Hak Konstitusional Warga Negara. dapat saja menangani perkara SKLN.

memiliki kedaulatan pangan yang kuat. Hanya saja, masih lemah pada aspek kemandirian pangan dan ketahanan pangan. "Jadi, kedaulatan pangan sudah relatif kuat tetapi masih lemah terkait kemandirian dan ketahanan pangan," kata Guntur melalui aplikasi Zoom dari lt. 11 Gedung MK. Menurut Guntur, kemandirian dan ketahanan pangan lemah karena kebijakan pangan belum dilakukan secara optimal dalam rangka pemenuhan hak konstitusional warga negara sebagaimana dijamin konstitusi. Ketahanan Pangan Indonesia" pada Sekjen MK: Kebijakan Oleh karena itu, diperlukan ikhtiar yang Kamis (25/6/2020). Acara yang kuat untuk memenuhi hak konstitusional Pangan Harus diselenggarakan oleh Raja Grafindo warga negara melalui kebijakan pangan Perkasa ini dilaksanakan secara virtual Berbasis Konstitusi yang berbasis pada sistem negara melalui aplikasi Zoom. demokrasi konstitusional. Sementara Dalam acara tersebut, Guntur SEKRETARIS Jenderal Mahkamah terkait kebijakan pangan, dalam membahas isu yang menyangkut Konstitusi (MK) M. Guntur pelaksanaannya wajib memperhatikan ketahanan, kedaulatan, dan kemandirian Hamzah menjadi pembicara dalam prinsip-prinsip konstitusi dan tata niaga pangan. Terkait aspek kedaulatan acara Diskusi Publik Hari Krida pertanian yang baik. (Utami). Pertanian yang bertema "Kesiapan pangan, Indonesia sejatinya telah

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