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The Constitutional Court (Mahkamah Konstitusi –MK) decided to reject judicial review on Act Number 5 Year 2014 of State Civil Officials (Undang-Undang Aparatur Sipil Negara –UU ASN). The verdict justified the status of ad hoc judges as non-state official.

“(Judicial verdict) declares; reject the Applicant petition in its entirety,” said Chief Justice of Constitutional Court Arief Hidayat when read judicial verdict on Monday (20/4) at Plenary Room, the Constitutional Court Building.

In the verdict consideration number 32/PUU-XII/2014, the Court assessed the establishment of ad hoc judges was basically due to the demand for expertise and effectiveness of court proceedings at specialized court. Ad hoc judges appointment was done through selection process which different with state official judges’ recruitment and appointment process. 

The initial goal of ad hoc judges’ establishment was to strengthen the role and function of judicial authority in law and justice enforcement in accordance with the complexity of case occurred, “Ad hoc judges are non-career judges (hakim non-karir) who have the expertise and capability to adjudicate particular cases, so they could give positive input when handling cases jointly with career judges (hakim karir),” said Deputy Chief of the Constitutional Court Anwar Usman.

The exclusion of ad hoc judges as state officials as stipulated on Article 122 letter e UU ASN, according to the Court, weren’t contrary with the constitution. It was because ad hoc judges had different traits, recruitment pattern, and term of retired-age with the career judges. In addition, ad hoc judges had work scope and authority which were temporary and limited.

Moreover, the 1945 Constitution doesn’t define the limits and qualifications of state official judges and non-state official judges. The determination of judge qualification particularly on whether or not ad hoc judges considered as state official, was an open legal policy which can be changed anytime by the legislators. The changes are adjusted with current demand and development according to the type, specifications as well as the qualification of the position. “Therefore, the determination of state officials’ qualification which excluded for ad hoc judges is entirely the authority of legislators,” explained Anwar.   

The differences between ad hoc judges and career judges, the Court affirmed, didn’t necessarily cause different treatment as referred to Article 28I (2) the 1945 Constitution (Undang-Undang Dasar 1945 –UUD 1945). The differences could be justified when the trait, character, and demand of both positions were different.

According to the Court, despite ad hoc judges and career judges granted equal status as judge, both characters and demand of the position were different. It was the policy scope of the legislators. “Based on entire legal consideration as explained above, the Court argued the Applicant petition arguments have no legal grounds,” he said.

Previously, eleven ad hoc judges assessed Article 122 letter e UU ASN was imperfect because its contain related to civil state official which laid on executive domain, while ad hoc judges included on judicial domain and had regulated on Act of Judicial Authority (Undang-Undang Kekuasaan Kehakiman)

On Article a quo, ad hoc judges are not included as state officials. According to the Applicant, it caused any inspection process and specialized court verdict which the judges consist of ad hoc judges became illegal and null and void due to no legitimacy and no authorized legality to investigate and adjudicate cases.

“Another consequence is; if ad hoc judges receive gratification from the litigants, they are not required to report, because their status not included as state official,” said the Applicant at first session on Monday (7/4)

Article 122 letter e Act Number 5 Year 2014 states:

“State officials as referred to Article 121 as follows: (e) Chief Justice, deputy chief, young chief and supreme court judges in the Supreme Court as well as chief justice, deputy chief, and judges in all judicial institutions except ad hoc judges.” 

(“Pejabat negara sebagaimana dimaksud dalam Pasal 121 yaitu: (e) Ketua, wakil ketua, ketua muda dan hakim agung pada Mahkamah Agung serta ketua, wakil ketua, dan hakim pada semua badan peradilan kecuali hakim ad hoc.”)

Therefore, the Applicant requested to the Court to declare Article 122 letter e UU ASN particularly the phrase ‘except ad hoc judges’ contrary to the UUD 1945 and had no legal binding. They were also requested to the Court to declare ad hoc judges are state officials in all judicial institutions below the Supreme Court (Mahkamah Agung –MA). (Lulu Hanifah/Prasetyo Adi N.)  

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