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HOW GLOBALIZATION AFFECT THE CONSIDERATION OF THE INDONESIAN CONSTITUTIONAL COURT IN DECIDING CONSTITUTIONAL REVIEW CASES?
Andy Omara

Universitas Gadjah Mada School of Law
Sosiojusticia No. 1 Bulaksumur
Yogyakarta Indonesia 55281


Abstract

The introduction of The Indonesian Constitutional Court (Mahkamah Konstitusi-MK) in 2003 is often considered as an important achievement of the most recent Constitutional amendments (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 conducting 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 judicial review cases, it is often that the existing regulations are insufficient. In such situation, it is not possible for MK to decline the petitions on the ground that the existing legislation do not address such cases The Court deemed to know the law and has to find the law (Ius Curia Novit). The question then how will MK handle the case when the existing laws and regulations do not address constitutional problems submitted by petitioners? Does the MK refer to other sources, such as foreign law and treaties, in deciding the cases? If so, how do foreign law and treaties influence the decision of the Indonesian Constitutional Court? How about the legitimacy of the court ruling when the MK utilize foreign law in deciding cases? This paper intends to answer the above questions. In addressing the questions, the paper will first briefly descript the background of the creation of the MK and some influences from other countries experiences in

Keywords: Globalisation, Constitutional Court, Judicial Review

Topic: Democracy, Constitution, and Globalization

Link: https://ifory.id/abstract/UMfuyCPBr43n

Conference: The 1st International Conference on Trade, Business, Human Rights, and Globalization (ICTBHRsG 2019)

Plain Format | Corresponding Author (Andy Omara)

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