Oleh: Vivi Yulia-Tim Riset Yuris Muda Indonesia

Discussions related to the formal test began to attract attention, especially after the ratification of the Job Creation Bill into the Job Creation Law. The lack of public involvement in the drafting process until the discussion of the Job Creation Act became the primary topic in the formal examination. In addition to violating the principles of statutory regulations, these actions violate the principle of openness in the formation of laws and regulations. Formal testing as a constitutional step in saving legal politics of legislation is a great hope for the legislative setbacks that occur. Then how is the performance of the current MK formal test?

Juridical Basis for Formal Examination of the Constitutional Court

The provision for formal examination was originally contained in Article 51 paragraph (3) letter a of Law Number 24 Year 2003 concerning the Constitutional Court. In reviewing the Act against the Basic Law, the applicant is obliged to describe the formation of a law that does not meet the provisions based on the 1945 Constitution.

The term formal examination itself was only introduced by Law Number 8 of 2011 concerning Amendments to Law Number 24 of 2003 concerning the Constitutional Court. Formal examination is interpreted as an application made by the Constitutional Court based on the laws and regulations governing the procedures for the formation of laws and regulations.

Sri Soemantri defines formal testing or formal test rights as the authority to assess whether a legislative product such as a law, for example, is incarnated through procedures as determined/regulated in applicable laws and regulations or not.

Reflection of the Constitutional Court Formal Examination Case

Based on quantitative data from the frequency of judicial review of laws during 2003-2020, the Constitutional Court has conducted a judicial review of 717 laws. Meanwhile, 266 decisions of the Constitutional Court were granted. Of the number of decisions granted, there is not one decision that grants the formal judicial review submitted by the applicant. An example of an interesting formal test case to study is the law that regulates state institutions.

First, a formal examination of the UUMD3 which is motivated by (i) the incompatibility of the form, format, and structure of the UUMD3 as determined by the 1945 Constitution; (ii) the incompatibility of the authority of the institution that makes decisions in the process of forming the Law with the 1945 Constitution; (iii) Inconsistency in the implementation of the procedures for the formation of laws and regulations, both in the discussion process and in the decision-making process on the Bill to become UUMD3.

From the formal test, through the Constitutional Court Decision No. 79/PUU-XII/2014 The Constitutional Court did not accept the formal test application because the material examination was more important. In addition, according to the Constitutional Court, the existence of Law Number 12 of 2011 concerning the Formation of Legislation is a provision of procedures for the formation of a law. Furthermore, if there is a content material that is indicated by the constitution, a material review of certain articles can be carried out.

Second, a formal review of the MA Law. In the petition, the petitioner stated that: (i) DPR decision-making did not meet the quorum requirements, (ii) DPR Chairman’s decision-making did not meet the decision-making requirements and (ii) the discussion of the a quo law violated the principle of openness of preparation and discussion.

The results of the formal examination of the Supreme Court Law are contained in the Constitutional Court’s Decision No. 27/PUU-VII/2009 where the Constitutional Court stated that the process of forming the Supreme Court Law was proven to have violated the formal provisions of decision making at that time. However, the Constitutional Court still decided that the a quo Law still has permanent legal force on the argument that it considers the principle of benefit in order to achieve the legal objectives.

Recommendation for the Formal Examination of the Constitutional Court

There is no formal test request which was granted by the Constitutional Court, indicating that the Court’s dignity as the final interpreter of the constitution has not been fully implemented. For this reason, in maintaining the dignity of the Court’s formal test, it can be done through; First, presenting a concrete formal test procedure so that it can be seen that the criteria for a law are declared procedurally flawed. The second is to expand the MK formal test paradigm and apply a non-constitutional design as a formal test benchmark. Besides being useful for expanding the principle of judicial review, it is also useful for answering formal conflicts in the formal examination of the Supreme Court Law.