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Constitutional law expert Saldi Isra presented by the Judicial Commission as Related Parties and delivered testimony at judicial review session on Act of General Courts, on Tuesday (28/7) at Plenary Room, the Constitutional Court Building. Photo PR/Ganie 

 

 

The Constitutional Court (Mahkamah Konstitusi –MK) again held judicial review session on Act of General Courts, Act of Religious Courts, and Act of State Administrative Courts which filed by the central committee of the Indonesian Judge Association (Ikatan Hakim Indonesia –IKAHI) on Tuesday (28/7) at Plenary Room, the Constitutional Court Building. The Judicial Commission (Komisi Yudisial –KY) as Related Parties presented two constitutional law expert; Saldi Isra and Zainal Arifin Mochtar.

Delivering expert testimony, Saldi said the establishment of the Judicial Commission was an awareness of the importance of judge supervision. According to him, a long discussion on the importance of independent commission tasked with judge supervision and conduct Supreme Judges recruitment had been going on amendment period in 1945. Saldi also mentioned several law experts who participated in giving input regarding independent commission.

“Hamdan Zoelva from the fraction of Star and Crescent Party (Partai Bulan Bintang –PBB) had coined the idea of judge supervision importance. Constitutional law expert Prof. Doctor Sri Soemantri also reminded legislators who amend the Constitution to concern on the importance of fair, dignified, and well-behaved Supreme Judges,” said him at the session of Case Number 43/PUU-XIII/2015 which led by Chief Justice Arief Hidayat.

Moreover, Saldi said that as a nomenclature which later regulated in the Constitution, the idea of the Judicial Commission was appeared explicitly on 41th meeting of Ad hoc 1 Committee Working Body of the People’s Consultative Assembly (Panitia ad hoc 1 Badan Pekerja Majelis Permusyawaratan Rakyat). At that time, one of the members Agun Gunanjar Sudarsa said the importance of the Judicial Commission equipped to the Supreme Court as a commission tasked with providing recommendation to the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat –MPR) regarding on appointment and dismissal of Supreme Judges, including on judge supervision. Moreover, changes in the nature, composition, membership, and authority of the Judicial Commission became one of the focuses amid judicial authority reformation. Therefore, Saldi added, the idea of eliminating Judicial Commission authority regarding on Supreme Judge recruitment and supervisory seemed betrayed the early idea of judicial reformation which crucial and historical.  

In line with Saldi argument, Zainal Arifin Mochtar said the idea of Judicial Commission was indeed appeared long before reformation era, precisely in 1968 under the name the Judge Research and Advisory Council (Majelis Pertimbangan Penelitian Hakim –MPPH) which regulated judge appointment, mutation, promotion and disciplinary sanctions. The idea reappeared and again discussed on reformation era as the priority. After undergone discussion process, Zainal concluded the Judicial Commission was a state institution designed for handling judge recruitment which had considered problematic.

“Almost entire fractions agree the establishment of Judicial Commission as political will to unravel the independence and accountability of judicial institutions which has long been under executive power. Long debate of constitution amendment had prompted the Judicial Commission to carried out its control function and judge recruitment. Therefore, it cannot be denied that the Judicial Commission is a state institution designed for handling judge recruitment which had considered problematic,” explained Zainal.

Previously, IKAHI central board Imam Soebechi, Suhadi, et al, filed judicial review petition on Act of General Courts (Undang-Undang Peradilan Umum), Act of Religious Courts (Undang-Undang Peradilan Agama), and Act of State Administrative Courts (Undang-Undang Peradilan Tata Usaha Negara). The Applicant questioned the involvement of the Judicial Commission in recruitment process of General Court Judges, Religious Judges, and State Administrative Judges.

According to the Applicant, the involvement of the Judicial Commission could cause intervention and damaged checks and balances mechanism. It also created dependency of the Supreme Court to the Judicial Commission in recruitment process of lower judicial institutions below the Supreme Court. The Applicant assessed the authority of the Judicial Commission in the 1945 was limited on ‘propose the appointment of Supreme Judges’ (mengusulkan pengangkatan Hakim Agung). The Applicant argued it could caused legal uncertainty and potentially violated the principle of independent judicial authority. (Julie/Prasetyo Adi N)

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