Revisiting Judicial Review
Discipline towards the formation and practice of principled law is the key to improving legal methods.
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The following article was translated using both Microsoft Azure Open AI and Google Translation AI. The original article can be found in Meninjau Kembali Peninjauan Kembali
The debate between finality and fallibility of decisions is a frequent issue in legal studies, especially procedural law. The first aspect stems from the argument that a judge's decision should be final, completed after it is pronounced. The reason being, the series of judicial processes at various stages are sufficient to declare that all facts and laws have been examined and settled.
Meanwhile, in the opposite hemisphere, the paradigm of fallibility is based on the assumption that there is no perfect judicial process. A judge may be wrong in formulating a verdict even though they have gone through various examination processes. For that reason, mechanisms to test judges' verdicts must always be open.
Judicial review (PK) as an extraordinary legal measure from the start contained debate between these two poles of view. It takes courage to enter into a tension that has existed for a long time - which is thus already well established and even tends to reach saturation point.
This 460-page book contains a combination of doctrinal and historical approaches (in the sense of placing PK in a certain context), regulations, as well as development and its inconsistencies and incoherencies, as well as capturing empirical views and conditions. Please note, in case the word "PK" is mentioned in the text, do not translate it.
Revisiting (PK) as an extraordinary legal effort has always been the subject of debate between these two polarized views.
Although this work does not use a comparative approach, a comparison approach is used in several topics of discussion. Furthermore, in a certain portion (which is quite large), this book specifically discusses the close connection between the ne bis in idem doctrine and the PK system. From here, we can see the author's efforts to fully dismantle, as well as anticipate, the PK mechanism.
The strength of this work, aside from the cohesiveness and solidity of its arguments, lies in its level of detail. As an example, the author thoroughly dissects three supporting aspects of PK (pages 44-53), namely the formal requirement, material reasons, and procedures. It also becomes apparent here that the author is not satisfied with tackling this topic from a normative approach, such as merely discussing regulatory frameworks, but also complements it with a doctrinal approach and comparison with two countries (Netherlands and the United States).
One interesting topic of discussion, which also shows the depth of the discussion in this work, is the journey of the arrangement and practice of PK (pages 55-87). PK, which is known today, has actually been fragile since its introduction, especially in criminal cases. Various changing regulations have been issued, indicating that the design of PK from the beginning is not solid, both in regulation and reference in practice, especially in criminal cases.
This situation also actually illustrates our tendency, more precisely our negligence, in designing legal procedures. In fact, a legal procedure also contains protection for human rights (procedural rights).
PK was introduced in the Reglement op de Strafvordering or Sv of the Dutch East Indies in 1847 through the Herziening mechanism as well as in the Reglement op de Burgerlijke Rechtsvordering i> or Rv Dutch East Indies in 1849 which introduced more or less the same mechanism, namely Request Civil or Rekes Civil, was not welcomed in the steady and solid normative framework of national law.
Institutionalization and then becoming a way of thinking about judicial review are left to the jurisprudence - or some circles, including the author of this book, call it yurisprudence. One relevant lesson to be learned is that the Supreme Court (MA) as a judicial organ has been given the freedom to shape the law from the beginning. This legislative authority can be seen from various regulations and circular letters issued by MA since 1967 regarding judicial review.
Therefore, it is not too surprising that through Law Number 19 of 1964 the concept of nova or new facts or circumstances emerged as a reason for submitting a PK. This is also strengthened through the regulation of Law No. 13/1965. Likewise, it is not too surprising that the Criminal Procedure Code (UU No. 8 of 1981) contains reasons for the judge's mistakes or obvious mistakes as reasons for the PK - one of the reasons most criticized by the author of this book. The reason for the judge's error or obvious (glaring) error first appeared in Supreme Court Regulation Number 1 of 1969.
However, the reasoning behind a judge's mistake or a genuine error in the Criminal Procedure Code cannot be separated from the pressure to acknowledge the possibility of fallibility in a ruling.
In mid-1980, one year prior to the implementation of the Indonesian Criminal Procedure Code (KUHAP), a widely known case emerged as the "misguided trial" case, namely the case of Sengkon and Karta. The confusion in responding to this case at the time once again indicated the negligence of lawmakers in designing a clearer and more structured mechanism for legal proceedings. Therefore, the case highlighted the need for more precise regulations in the Indonesian legal system.
Confusion in responding to this case at that time once again indicates the failure of lawmakers in designing a clearer and more planned mechanism for the Constitutional Court.
Learning from the past should not be repeated. However, precisely in settings related to PK, it is still relevant for current legislators to take notes. One example is related to the norming of the ne bis in idem principle in Article 134 of the new Criminal Code which will come into effect on January 2 2026. The formulation of norms related to this principle results in confusion between the meaning ofne bis in idem as a prohibition on prosecution a second time. with this norm position which is actually an exception to the PK itself.
This principle is one of the themes most discussed by the author. For example, when discussing the application of the ne bis in idem principle to the PK system (pp. 211-219). Likewise in the discussion of the principle of ne bis in idem in the formal requirements (pp. 229-257), material (pp. 259-329), and procedures (pp. 331-354) of the PK.
This book certainly advocates a solid perspective on PK, both from a doctrinal, regulatory, and practical standpoint. Furthermore, as a book that stems from a doctoral dissertation, it must have undergone a long dialectical process and been scrutinized by experts in a high-level academic forum. Note: The forbidden word "PK" is to be kept as is.
However, this work still provokes a new field of exploration, namely by investigating the viewpoint of the PK proponent. Some assumptions, for example that the majority of PK applications are done by trial and error (frivolous), need to be tested further. Likewise with the question of whether the PK application is related to the applicant's background as "have" or "have not" (Galanter, 1974) or whether the applicant is accompanied by a legal representative or not (Edelman and Suchman, 2003).
One important quote needs to be emphasized intentionally here, which is as follows, "... The rules and guidelines of the Supreme Court can become a mechanism for benchmarking general norms that will be applied within the judicial system, to be formulated and tested for implementation, before the general norm is adopted by law… Meanwhile, the capacity of the legislative system, which is fraught with limitations in determining strict corridors for various aspects of the judicial system, needs to be improved… The need for improvement is very clear, because the damage caused cannot be denied…".
An advice that may be harsh but necessary. Discipline towards the formation and practice of principled law is the key to improving the ways of justice. For this reason, the author rightly and accurately targets the heart of our longstanding issue.
Miko GintingJudicial Activist and Practitioner
Title: Judicial Review: Correcting Errors in Decisions
Author: Binziad Kadafi
Publisher: Gramedia Popular Literature
Publication Year: Print I, 2023
Book Thickness: xxviii + 462 pages.