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A petition revision delivered by Attorney Dian Fariska at judicial review session on Act of Supreme Court, on Monday (20/4) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) was held a further session on Act Number 3 Year 2009 of Second Amendment on Act Number 14 Year 1985 of the Supreme Court (Perubahan Kedua Atas Undang-Undang Nomor 14 Tahun 1985 tentang Mahkamah Agung –UU MA) and Act Number 48 Year 2009 of Judicial Authority (Kekuasaan Kehakiman) with agenda petition revision on Monday afternoon (20/4) at Plenary Room, the Constitutional Court Building. Case registered with number 39/PUU-XIII/2015 was filed by Ina Mutmainah who felt detrimental by enactment of judge supervision which authorized by the Supreme Court (Mahkamah Agung –MA), as stipulated on Article 32A (1) UU MA and Article 39 (3) UU Kekuasaan Kehakiman. At the occasion, Applicant’s Attorney Dian Fariska said that they had revised the petition related to the legal position, the authority of Judicial Commission (Komisi Yudisial –KY) in judge appointment and dismissal, as well as review object.

“We had revised based on Your Majesty’s advices. First is concerned on the legal standing. The second is on whether the KY authorized to appoint and dismissed Supreme Court Judge or other judges below the Supreme Court. The third is on why Article 32A included in the judicial review, whereas Article 32A is related to the supervision on the MA and the Applicant is the victim of a Kalianda district court judge,” explained Dian in front of judge panel led by Deputy Chief of the MK Anwar Usman.

Related to the legal position, Dian delivered that the Applicant is an Indonesian citizen and compliance tax-payer. According to Dian, the Applicant’s reason of constitutional loss was because the Applicant is a victim of sexual abuse done by a Kalianda District Court judge. The Applicant then reported the case to the MA and the KY, however there were two different decisions from both institutions.  

“She (the Applicant) report to the MA and KY to demand justice. From the report, there are two different decisions between the MA, give a decision in form of non-hammer sanction (court proceedings prohibition) for two years at Banda Aceh Court, and the KY who decide permanent dismissal with pension rights,” explained Dian.

Dian argued those two different decision caused legal uncertainty. According to him, the institution authorized to maintain and uphold judge’s dignity and attitude is the KY. Therefore, Dian argued that the provision on judge internal supervision authorized by the MA on Article 32A (1) UU MA and Article 39 (3) UU Kekuasaan Kehakiman caused legal uncertainty. Thus, Dian added, the constitutional loss suffered by the Applicant was obvious.

“It is obvious there are casualties of the constitutional loss suffered by the Applicant towards enactment of Article 32A (1) UU MA and Article 39 (3) UU Kehakiman. The enactment of articles reviewed in the petition had caused Applicant’s constitutional rights towards the recognition, protection, and fair legal certainty, and constitutional rights towards due process of law as granted by Article 24B (1) and 28D (1) the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945),” explained Dian.

Moreover, Dian said that the KY was indeed unauthorized to appoint and dismiss judges. However, according to Dian, the role of KY in cooperation with the MA was needed to be strengthened. “In the future the MA should hold the duty and authority in taking care and supervise the quality of legal decisions as before. While the financial administration, bureaucracy, and the rule of judges’ behavior are handed over to other institutions. In this case the appropriate institution is the Judicial Commission as conducted by the Dutch Judicial Commission," said Dian.

Despite the Applicant had detrimental by a district court judge, the Applicant still included Article 32 (1) as the review object. It was because Article 32A (1) UU MA related to Article 39 (3) UU Kekuasaan Kehakiman in the context of supervision. Moreover, Dian said that the KY is an institution that fully authorized to supervise judges, either the MA judges or judges below the MA. “The institution granted the right to supervise either the MA judges or judges below the MA based on the constitution, Act of the Judicial Commission (Undang-Undang Komisi Yudisial –UU KY) and the Constitutional Court jurisprudence in Case 005/PUU-VI/2006 dated August 23, 2006 is the KY," said Dian.

After listening to the revision, Constitutional Judge Anwar Usman validated the evidence filed by the Applicant. “So all that was delivered earlier had already a single entity and the preliminary investigation the Judge Panel considered enough. The evidence validated are from P-1 to P-9," said Anwar. (Triya IR/Prasetyo Adi N.)

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