FOREIGN LAWS AND DOMESTICS COURT: DOES THE INDONESIAN CONSTITUTIONAL COURT TAKE INTO ACCOUNT THE EXISTENCE OF FOREIGN LAW IN DECIDING CASES?
Andy Omara SH, MPub&IntLaw., Ph.D.

Universitas Gadjah Mada, Indonesia

Abstract

The establishment of The Indonesian Constitutional Court (Mahkamah Konstitusi-MK) in 2003 is often considered as one significant achievement of the most recent Constitutional amendment (1999-2002). This new Court has significant authorities in protecting the constitutional rights of the citizens and upholding the norms of the Constitution. MK has five constitutional authorities i.e. settling dispute in general election; settling the dispute competence among state institutions; conducting constitutional review, dissolving political parties and providing legal opinion in presidential impeachment process. As a newly established legal institution, MK needs all necessary laws and regulations to exercise its constitutional mandates. These include the Constitution and other relevant legislation such as the MK Law and the Judicial Powers Law. In general, the work of MK, both substantive (material) and procedural (formal) law, is regulated in specific law namely Law No 24 of 2003 on Mahkamah Konstitusi Republik Indonesia (MK Law) which was then amended by Law 8/2011. The substantive law regulates things such as the authorities of the Court, the types of Court rulings, and the impact of the court rulings. Formal law regulates the procedures in upholding the substantive law. Procedural law explains about all necessary steps in cnducting litigation in the MK starting from submitting a petition to the Court, the preliminary examination, up to the court delivering its decisions. Besides Constitution, MK Law and other relevant laws such as the Law on Judicial Powers (kekuasaan kehakiman), the work of MK is also guided by the PMK, Peraturan Mahkamah Konstitusi (Constitutional Court Regulation). The PMK aims to further elaborate provisions stated in MK Law such as elaborating the MK authorities and explaining in detail the procedures to conduct litigation in MK. Even though the regulations related to MK and procedures to litigate in MK are somewhat many, in practice in conducting its responsibilities especially in dealing with cases before it, it is often that the existing regulations are insufficient. In such situation, it is not possible for MK to decline such cases on the ground that the existing legislation do not address such cases (Ius Curia Novit). The question then how will MK handle the case when the existing laws and regulations do not address such cases? Does MK refer to other sources in deciding the cases? Does foreign laws or treaties influence the decision of the Indonesian Constitutional Court? If so, how do foreign law and treaties influence the decision of the Indonesian Constitutional Court? This paper intends to answer the above questions. In addressing the questions, the paper will first briefly descript the background of the establishment of the MK and some influences from other countries experiences in regard to constitutional court. The paper then will examine the relevant regulations related to MK ranging from Constitution up to PMK (MK regulation). Next, the paper will analyse selected cases submitted to MK in order to answer whether in certain cases, in deciding novel cases MK consider the norms of foreign law and treaties. The paper will end with conclusion and recommendation.

Keywords: Foreign Laws, Domestic Court, Constitutional Court

Topic: ASIAN Conference on Comparative Laws

Link: https://ifory.id/abstract-plain/Tz8RgUCxbBf6

Web Format | Corresponding Author (Latifah Hanum Kusumastuti)