---

The Applicant represented by Attorney Lilik Mulyadi delivered the petition arguments at judicial review session on Act of General Judiciary on Thursday (16/4) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) was held a judicial review first session of on act regulating the judicial selection process, filed by Imam Soebechi, et al. which is central board of the Indonesian Judges Association (Ikatan Hakim Indonesia –IKAHI) on Thursday afternoon (16/4) at Plenary Room, the Constitutional Court Building. The Applicant’s Attorney Lilik Mulyadi said that the Applicant –consisted of a number of judges– felt their constitutional rights had harmed due to the involvement of Judiciary Commission (Komisi Yudisial –KY) in the selection process of district court judges, religious court judges, and state administrative court judges.

“Related with the judges’ rights and constitutional authority to grant the judicial independence that determine the judges’ independence, (we) have been harmed with the enactment of Article 14A (2) and Article 14A (3) Act no. 49 Year 2009 juncto Article 13A (2) and Article 13A (3) Act No. 50 Year 2009 juncto Article 14A (2) and (3) Article No. 51 Year 2009,” explained Lilik in front of the judge panel led by Deputy Chief Justice of the Constitutional Court (Wakil Ketua Mahkamah Konstitusi) Anwar Usman.

According to Lilik, there was a joint regulation made by the Supreme Court (Mahkamah Agung –MA) and Judiciary Commission (Komisi Yudisial –KY) related to further regulation on the judiciary selection. However, according to him, the selection process didn’t conduct yet since the regulation enacted in 2010. Therefore, the Applicant argued that the legal ground of selection process contained constitutional problem because legal uncertainty occurred due to the legal ground.

“Due to the implication of legal uncertainty, rechtsonzekerheid in its implementation, it consider as violation towards the principle of legal certainty which guaranteed by Article 28D (1) the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945),” said Lilik.

Furthermore, Lilik said that the KY authority in judicial selection on Article 24B (1) UUD 1945 was only limitative and concerned the authority to propose the Supreme Judge (Hakim Agung) appointment. Therefore, Lilik argued that the legal ground of the KY involvement in the selection process of district court judges, religious court judges, and state administrative court judges was a meaning extension of Supreme Judge. According to the Applicant, Lilik added, the meaning extension had contrary to UUD 1945 and contrary to the principle of Lex Certa, Lex Stricta, and Lex Superior Derogate Legi Inferior.

In the petitum, the Applicant requested that the provision on judicial selection of district court judges, religious court judges, and state administrative court judges on the phrase ‘jointly’ and ‘and Judicial Commission’ declared contrary to UUD 1945. Moreover, the Applicant requested that judicial selection process of district court judges, religious court judges, and state administrative court judges conducted by the MA. They also requested that the phrase ‘jointly regulated by the Supreme Court and Judicial Commission’ should be interpreted ‘regulated by the law’.

After the petition hearing, Deputy Chief Justice (Wakil Ketua Mahkamah Konstitusi) Anwar Usman gave input related to the petitum. According to Anwar, the Applicant request which the phrase ‘jointly regulated by the Supreme Court and Judicial Commission’ was interpreted to ‘regulated by the law, cannot be captured on the Applicant intention.  

Meanwhile, Constitutional Judge Maria Farida advised that the Applicant’s petition of changing the phrase ‘regulated by the law’ was changed to ‘regulated by the Supreme Court’. Moreover, she was also highlighted the petition that more related to the implementation of the act, rather than norm matter.

“This shall be clarified that those articles contrary to the constitution, it is not a problem whether the joint regulation between the MA and KY exist,” said Maria Farida  

Meanwhile, the Constitutional Judge Aswanto highlighted the constitutional loss suffered by the Applicant in their capacity as the IKAHI. According to Aswanto, the applicant should explain the constitutional loss or potential loss in the petition. "If possible, I recommend that to be described in more detail, for example Article 14A (2) and (3), what kind of constitutional loss suffered by the IKAHI with that articles, even more than that, this petition should also clearly explained that the conversion of the norms as desired by the Applicant could eliminate the potential loss or the factual loss disappeared," explained Aswanto. (Triya IR/Prasetyo Adi N.)

---