By: Bagas Wahyu Nursanto

Indonesia as a democratic legal state places the human rights (HAM) of citizens in a democratic frame. This form of human rights is embodied in the constitutional rights of citizens. Therefore, ensuring that laws and regulations protect the constitutional rights of citizens and not vice versa is very necessary. But in practice this is not the case. This can be seen from the fact that there are still laws and regulations whose constitutionality is doubtful but are used as the basis for punishment for citizens and have even been said to be unconstitutional through the decision of the Constitutional Court.

For example, in two cases the constitutional rights of citizens were neglected due to problems with the constitutionality of the rules. First, the Eggi Sudjana case where the Panel of Judges of the Central Jakarta District Court sentenced Eggi to three months in prison with a probationary period of six months because he had been proven guilty by fulfilling Article 134 jo. Article 136 bis of the Criminal Code, namely the article on insulting the president dated February 22, 2007.

Meanwhile, at the same time, Eggi Sudjana also requested a material review from the Constitutional Court (MK) on Article 134 of the Criminal Code, Article 136 bis of the Criminal Code, and Article 137 of the Criminal Code. Then the Constitutional Court decided that Article 134, Article 136, and Article 137 of the Criminal Code contradict the 1945 Constitution and have no binding legal force. The Constitutional Court’s decision is contained in Decision No.013-022/PUU-IV/2006 which was decided on December 4, 2006. This means that the article accused of Eggi Sudjana is unconstitutional and cannot be used as a basis for prosecution.

Second, the case of Sadikin Arifin, a defendant in a narcotics case, requests a judicial review of Article 42 Paragraph (2) of Law Number 36 of 1999 concerning Telecommunications. He requested that the Constitutional Court expand the parties that can request telephone recordings in the criminal justice process. This is because he cannot ask for a recording on his cellphone even though with the recording evidence he really needs in the trial process that is being faced against him. However, in the end he was sentenced by the North Jakarta District Court Panel of Judges on December 4, 2018 and the decision on the judicial review he requested was decided by the Constitutional Court Judge on April 15, 2019. Reflecting on this case, at least the article that is used as the basis for the prosecution is being questioned and its constitutionality tested, but still The Public Prosecutor and Judge did not heed this.

From the two real cases, it can be seen that there is no systematic relationship between the general court and the Constitutional Court regarding the basic rules for holding a judicial process. This further confirms the absence of constitutional guarantees and protections for citizens from the threat of the application of laws (by the courts) that are contrary to the Constitution (Palguna, 2009:14-15). This understanding also confirms that there is still wide openness to the practice of violating the principles of equality and equality before the law and a fair trial. In a procedural perspective, this law does not violate the existing legal rules, but using rules whose constitutionality is doubtful in concrete legal cases is far from substantive justice.

One of the mechanisms to overcome these problems is to apply a Constitutional question. Constitutional question is a mechanism for reviewing laws that are submitted in the form of “constitutional questions” by judges from ordinary courts to the Constitutional Court when the judge doubts the constitutionality of the law that he will apply in the concrete case he is handling (Borowski, 2003:156). However, this mechanism is not yet regulated in the Indonesian legal system. This was acknowledged and was mentioned by the Constitutional Court in its Decision Number 013-022/PUU-IV/2006. In its decision, the Constitutional Court stated that there is an important authority in the realm of constitutional review which is commonly owned by the Courts of other countries but does not have, namely the authority to adjudicate constitutional question and constitutional complaint cases.

In fact, several countries have implemented a constitutional question mechanism in their constitutional review system, including Germany, Austria, Italy, Spain, Russia, South Korea, Croatia, Thailand and others (Safa’at, 2009: 7). In the constitutional question mechanism, a procedure applies that by submitting a constitutional question to the Constitutional Court, the examination of the concrete case in court must be postponed until the Constitutional Court’s decision is made (Chalid and Yaqin, 2019:365). In simple terms, judges in general courts who handle concrete legal cases question the constitutionality of the rules that underlie the handling of these concrete legal cases.

Then at the same time the entire litigation process in the general court was postponed until there was a final and binding decision of the Constitutional Court. Furthermore, this mechanism will determine how the continuation of a judicial process will be. If the Constitutional Court declares a rule that forms the basis of the constitutional judicial process, the judicial process

advertisements can be continued and otherwise the judicial process cannot be continued. With such a mechanism, it is hoped that in the future only laws that do not have constitutionality problems can be applied by judges.
This mechanism will also protect the constitutional rights of citizens from problems with the constitutionality of laws and regulations. In the future, it is necessary to increase the authority of the Constitutional Court regarding Constitutional questions in the process of applying the law. Indonesia as a democratic legal state is obliged to place the human rights of citizens as a characteristic of the state. This can be realized by the existence of legal certainty and equality in the eyes of the law within the framework of democracy. For this reason, it is imperative to ensure that laws and regulations are free from constitutional issues. The vulnerability of regulations whose constitutionality is doubtful and even declared unconstitutional by the Constitutional Court applied to citizens is a form of serious violation of human rights in a democratic rule of law. The application of the Constitutional question is very much needed to create justice in a democratic state of law.