Jakarta, hukumonline – During his time as a member of the House, Mahfud took part in signing The House’s legal opinion that the Act on Filming was not against the constitution. Now, he is a justice who has to decide on the case. Is Mahfud consistent?

The statement was clearly said. The justices were also listening. “Your Honor, the existence of Article 1 number 4, Article 33 and Article 34 of Act No. 8/1992 trully do not violate our constitution”.

This sentence is a part of the House’s opinion on the trial for Act No. 8/1992 on Indonesian Film. The opinion was said by a member of Commission III, Lukman Hakim Saefuddin. The Politician from United Development Party (PPP) was not alone to represent the parliament to the Constitutional Court trial. Next to him was Prof. Moh. Mahfud MD, who was also a member of Comission III.

As time goes, Prof. Mahfud was no longer served in Senayan. Now he has his throne in the Constitutional Court’s Building, as a constitution justice. When Mahfud changed his job, the judicial review on the act was not over. The agenda for material review on Act on Film indeed has entered the final stage. But because of his duty, Mahfud should also handle and decide on the case. Then, isn’t there a conflict of interest?

Prof. Mahfud too seemed to understand the potential for conflict of interest when he was appointed as a justice. Because he admitted signing the Parliament’s opinion to respond the trial on Act on Film. “I have a little conflict of interest,” he admitted after the position handover with Constitutional Justice Achmad Roestandi.

About how he should be acting, Mahfud promised to discuss it with the other justices. One of the justices, Jimly Asshiddiqie, tried to give a solution. The material from justice Achmad Roestandi so long as concerning the Act on Film would be given to Mahfud. Even though, Jimly warned, the opinion of Roestandi did not bind Mahfud.

According to Jimly, there was no problem even though Mahfud’s position was different from before. As a constitution justice, Mahfud had to show a statementship attitude, not a politician anymore. Because of that, Jimly convinced that Mahfud might change his opinion. “He could go back to ”the right path” and change his mind,” said the Chief Justice.

When he was a member of the Parliament, Mahfud backed the opinion that considered censorship is needed. For Jimly, this opinion did not represent Mahfud’s personal view, but the House a an institution. In the trial of The Constitutional Court, members who represented the Parliament indeed had a duty to defend the Wet they had made. However, between the institutional attitude with personal opinion was allowed to be different.

Based on hukumonline’s record, a member of the Parliament from the Nation Awakening Party PKB, Nursyahbani Katjasungkana, once also had a different view as a member of The Parliament and as a person. At that time, the Constitutional Court was conducting a trial for Act No. 32/ 2004 on Regional Government, especially on individual candidacy clausul. Nursyahbani came to court as the House representative. He also read the House’s opinion which refused the existence of individual candidacy. But deep inside her heart, she personally admitted that she fully agreed with the individual candidacy. That opinion was delivered outside the court.  

Mahfud himself tried to be consistent in giving his legal opinion. Even though he did not explicitly express his opinion, Mahfud indicated that his opinion would not change. “When I decide (as a constitution justice,- ed) of course I will be like one,” he emphasized.  

According to Jimly, Prof. Mahfud did not have to express hurriedly his view as a constitution justice on special cases. Because it was still possible to change during the debate in the Justice Deliberation Meeting (RPH). In the debate, it was possible for a justice to follow another justice’s opinion.

An opinion of a justice might be reffered to a legal opinion he has made. It could also be from the books he writes. But Jimly reminded that the fruit of thought put in the book might not be the same when it was faced against a case. “It is not necessarily the same,” said the Professor in Constitution Law from The University of Indonesia.

Jimly also added that the change in a justice point of view on something did not mean to show inconsistency and bad integrity of a justice. A justice’s opinion in a book was only from one side. When it was in RPH there was a take and give among justices; each one of them gave some inputs.

When connected separately, Former Coordinator of The Constitutional Court Expert Staff, Irmanputra Sidin, spoke in the same tone with Jimly. According to Irman, the construction of the choice of three constitution justices each from the Supreme Court, The Parliament, and the Government indeed aimed to guard the legal politic of each institution. So, according to Irman, it was not a problem if Mahfud decided like what he revealed when reading the House’s legal opinion.

It was just, said Irman, the House often went out of the line when they were in the Constitutional Court. “So far the Parliament is mistaken, they defend every Act,” he emphasized. “Even they defend the Act made in the Dutch period,” he added. In this case, the Act on Film was also issued far before the present Parliament worked, in 1992.   

Akil
Uniquely, even though Jimly and Irman agreed that there was no more problem for Mahfud if he took part in deciding the Act on Film, both of them did not want the same thing happened again. Especially with Akil Mochtar who was going to replace Constitution Justice I Dewa Gede Palguna, in August 2008. Jimly advised that he was no longer the legal counsel of the Parliament in the Constitutional Court procedure. “I also advise that he is no longer the counsel until August,” he explained. “So that there will not be a conflict of interest,” he argued.  

Together with Mahfud, Akil was often attended the trial as the legal counsel of the Parliament in the Constitutional Court. Besides them, other members of Commission III who often attended the trial at Jl. Medan Merdeka Barat No 7 are Lukman Hakim and Patrialis Akbar. Jimly admitted that according to the law there is no restriction for Akil to attend the trial. ”But it is a problem of ethics. It is about being proper,” he said. “Morally he has become a constitution justice, it is just a matter of time,” he added.

Irman once again agreed his former superordinate. “It is better that he (Akil) does not make any comments in the Constittutional Court, even though it is possible according to the law,” he said. Besides that, he explained, there are 550 people in the Parliament. ”Let someone else represent them,” he said.(Ali)

Source www.hukumonline.com
Photo courtesy of Document of  the Constitutional Court Public Relation
Translated by Yogi Djatnika