Yusril Ihza Mahendra smiled after The Court granted his petition.
Jakarta, MKOnline – The petition for the review of the office term of the Attorney General in Law No. 16 Year 2004 about the Public Prosecutor Office of the Republic of Indonesia was granted partially by the Constitutional Court (The Court) on Wednesday (22/9) in the Plenary Session Room of The Court. In its rulings, The Court declared Article 22 paragraph (1) sub-paragraph d conditionally constitutional, namely constitutional to the extent that it would be interpreted that “the term of office of the Attorney General shall expire with the expiry of the term of office of the President of the Republic of Indonesia in one period concurrently with the term of office of cabinet members or when discharged during his/her term of office by the President during the relevant period”
In its legal considerations, The Court stated that the honorable discharge due to the condition “end of office term” posed a problem in its interpretation and application. “Therefore, the implementation of Article 22 paragraph (1) sub-paragraph d of Law No. 16/2004 needs to be supplemented with a clear formulation regarding the definite time period or scope of time to avoid different interpretations.” explained Constitutional Justice Maria Farida.
The Court was also of the opinion that in the current practices of state administration, “stipulation of office term” had been definitely used by several public positions. Maria Farida stated, “The statements of Denny Indrayana, S.H., LL.M. Ph.D, and Lieutenant General (Ret.) Achmad Roestandi, S.H., Experts presented by the Government, that the office term of the Attorney General could last for a lifetime, are incorrect because according to the principles of democracy and the constitution, there has to be clear n definite time limits to the scope of authority for every public position especially for positions within the purview of the government authority such as the Attorney General.”
Furthermore, the Court was of the same opinion with Expert Prof. Dr. Bagir Manan, S.H., M.C.L. who stated that the office term of the Attorney General should be in accordance with the office term of the President regardless of being positioned as an official within or outside the cabinet. The Court also justified the opinion of Expert Prof. Dr. H.M. Laica Marzuki, S.H. that the Attorney General was the holder of public position having limitations in performing his/her functions and authority. The Court also agreed with the opinion of Expert Prof. H.A.S. Natabaya, S.H., LL.M., continued Maria, that the Attorney General should be honorably discharged from his/her position by the President based on a certain condition.
However, in the subsequent considerations, The Court agreed with the opinion of the experts that the substance and provisions had not regulated the issue, and the appointment of the Attorney General now could not be considered illegal. “The reason is that when stipulating the position of the present Attorney General, there is no provision in the Law requiring the President to choose the alternative, so that there are no constitutional or legal validity problems” said Constitutional Justice Maria Farida.
The Court accepted the view of Government’s Expert Prof. Dr. Philipus M. Hadjon on the principle of praesumptio iustae causa namely that so long as there was no Presidential Decree regarding the discharge, the office term of the Attorney General should remain with the relevant official. “As the substance of the law is open and unclear, continuing the position of Attorney General by the President in the case a quo cannot be considered unconstitutional and the present position of the Attorney General cannot be considered illegal (but rather legal) because no Law is being violated. The views of three Experts presented by the Petitioner can only be binding after the pronouncement of decision of this Court and/or after there is a new Law regulating the matter in a stricter manner with respect to such necessity or prohibition”
The Court then concluded that the petition granted would apply prospectively. “The Petitioner’s arguments, to the extent they are concerned with the petition on conditional constitutionality, are sufficiently reasonable with the requirements determined by the Court and shall apply prospectively as from the pronouncement of this decision.” Said Mahfud MD in the conclusion of the 143 page decision.
On the case with Petitioner Prof. Dr. Yusril Ihza Mahendra, under case registration Number 49/PUU-VIII/2010 at the end of decision pronouncement, two constitutional justices had dissenting opinions namely Constitutional Justice Achmad Sodiki and Constitutional Justice Harjono. (Miftakhul Huda)
Wednesday, September 22, 2010 | 15:07 WIB 274