Kuliah Teori Perundang-Undangan 1: Mengenal Keberadaan MK di Indonesia

TLDR;

This video introduces a series of lectures on the theory of legislation, focusing on the role and function of the Constitutional Court (Mahkamah Konstitusi or MK) in Indonesia. It covers the historical context of judicial review, the establishment and evolution of the MK, its authorities and obligations, the principles applied in its legal proceedings, and the stages of court sessions.

• Judicial review is an implementation of the check and balances system.
• The Constitutional Court was formed as a consequence of the rule of law and the mandate of the Third Amendment of the 1945 Constitution.
• The Constitutional Court functions as the guardian of the constitution, the final interpreter of the constitution, protector of human rights, and protector of the constitutional rights of citizens.

Introduction to the Series on the Theory of Legislation [0:00]

The video introduces a series of lectures dedicated to the theory of legislation, prompted by the lecturer's involvement in writing tutorial materials for Universitas Terbuka. The series aims to help students understand the material more easily through video and audio aids, acknowledging that students have different learning styles. The course will discuss the judicial review of legislation, particularly focusing on the Constitutional Court and the Supreme Court of Indonesia.

The Concept of Judicial Review [2:41]

The discussion begins by defining judicial review and differentiating it from legislative and executive reviews. Legislative review is conducted by the legislative body (parliament), while executive review is performed by the executive branch (president). Judicial review, the focus of the lecture series, involves the examination of laws by the judiciary. The need for judicial review arises from the principle of checks and balances, preventing any single branch of government from becoming too powerful. This system ensures that each branch of power can supervise and balance each other, contrasting with historical systems of absolute monarchies. The concept is also linked to Hans Kelsen's theory of the hierarchy of norms, where laws must be consistent from the bottom to the top, necessitating judicial review to ensure this consistency. The video references the landmark case of Marbury v. Madison in the United States, which established the principle of judicial review, noting that the structure differs in Indonesia, where the authority is divided between the Supreme Court and the Constitutional Court.

Formation of the Constitutional Court of Indonesia [9:31]

The formation of the Constitutional Court (MK) is traced back to discussions during the drafting of the constitution by the Investigating Committee for Preparatory Work for Independence (BPUPKI). Muhammad Yamin proposed the idea of a body to review laws passed by parliament and the president, arguing that not all members of parliament are legal experts. However, this proposal was rejected by Soepomo, who argued that Indonesia lacked sufficient legal experts at the time. As a result, the original 1945 Constitution did not include provisions for judicial review. Later, the idea of judicial review resurfaced, with Law No. 14 of 1985 granting the Supreme Court the authority to review regulations below the law. There was also a proposal in 2003 to allow the People's Consultative Assembly (MPR) to review laws against the constitution, but this was opposed due to the MPR's composition being largely political. The MK was eventually established as a result of the Third Amendment to the 1945 Constitution, as mandated by Article 24C and Article 3 of the transitional provisions. Law No. 24 of 2003 was the first law regulating the MK, followed by amendments in Law No. 8 of 2011 and Law No. 4 of 2014, which addressed issues such as the tenure of the Chief Justice and the selection process for judges, particularly in response to corruption cases. The most recent change is Law No. 7 of 2020, which sets the term of MK judges to 15 years and raises the minimum age for candidates.

Authorities and Obligations of the Constitutional Court [19:11]

The Constitutional Court's authorities, as defined in Article 24C paragraph 1 of the 1945 Constitution, include: (1) reviewing laws against the constitution, with final and binding decisions; (2) resolving disputes between state institutions; (3) dissolving political parties; and (4) resolving disputes over general election results. The MK also has the obligation to provide decisions on the DPR's opinion regarding alleged violations by the President or Vice President. These authorities and obligations enable the MK to function as the guardian of the constitution, ensuring that no regulations or policies violate it. The MK also serves as the final interpreter of the constitution, with its interpretations being definitive. Additionally, the MK protects human rights and the constitutional rights of citizens, as individuals can challenge laws that they believe infringe upon these rights. Finally, the MK protects democracy by resolving election disputes, ensuring that election results are democratic and in accordance with the law.

Principles and Procedures in the Constitutional Court [26:20]

Several principles guide the legal proceedings of the Constitutional Court. These include: (1) Ius Curia Novit, meaning the law cannot reject a case due to a lack of regulation, requiring judges to make legal findings; (2) open court sessions, allowing the public to observe trials, except for the judges' deliberation meetings; (3) independence and impartiality, ensuring the MK does not favor any party; (4) fast, simple, and inexpensive assessments, with no fees charged to petitioners; (5) the right to be heard equally, ensuring all parties, including petitioners and related parties, are given a chance to present their case; (6) active and passive roles of judges, where the MK remains passive until a case is submitted but becomes active during the trial; and (7) the presumption of validity, meaning a law is considered valid until the MK rules otherwise. The stages of a trial at the MK include preliminary examination, trial examination, judges' deliberation meeting, and pronouncement of the verdict. Dissenting opinions are accommodated and recorded in the court's decisions.