Wednesday, June 2, 2021 | 23:14 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held the petition revision hearing of the judicial review of Law No. 46 of 2009 on the Court of Criminal Acts of Corruption on Wednesday afternoon, June 2, 2021. The hearing, chaired by Chief Justice Anwar Usman, was scheduled to hear the House (DPR) and the president.
House Commission III member Andi Rio Idris Padjalangi testified virtually in relation to the case No. 85/PUU-XVIII/2020 on Article 10 paragraph (5) of the Anti-Corruption Court Law. The Petitioners argued that Article 1 paragraph (8) in conjunction with Article 27 of Law No. 48 of 2009 on Judicial Authority doesn’t provide any interpretation on the ad hoc court, only on special courts.
The House disagreed with this assertion, which equates any court with ad hoc judges with an ad hoc court. Padjalangi asserted that Article 1 point 9 of the Judiciary Law stipulates that an ad hoc judge is a temporary judge who has expertise and experience in a certain field and is appointed in accordance with the law to adjudicate and rule on cases.
Legal Uncertainty
The House believes that the limit of terms of office for anti-corruption ad hoc judges is in line with Article 1 point 9 of the Judiciary Law, which stresses that the office of the ad hoc judge is temporary. Without such a provision, there would be legal uncertainty due to the uncertainty of terms of office for ad hoc judges. They believe that based on the article the ad hoc and career judges are distinguished only by their terms of office as well as expertise and experience in certain fields, following Article 12 of the Anti-Corruption Court Law.
Padjalangi added that the Judiciary Law and the Anti-Corruption Court Law do not regulate temporary courts. He added that the ad hoc is defined by law as a structure of judges that consists of career (permanent) judges as well as ad hoc (temporary) judges, whose term of office is limited by both Article 1 point 1 of the Anti-Corruption Court Law and Article 1 point 9 of the Judiciary Law. In both provisions, ad hoc doesn’t refer to permanent, temporary, or special courts. He stressed that the Petitioners’ assertion has the wrong object.
Judicial Independence
Padjalangi then responded to the Petitioners’ assertion that the term limit would affect the judges’ independence. He relayed the House’s belief that judicial independence meant in the 1945 Constitution means the independence to carry out the judiciary, to enforce the law and justice. Article 1 point 1 of the Judiciary Law, he said, stipulates that the judicial authority is an independent state’s power to carry out the judiciary, to enforce law and justice based on Pancasila and the 1945 Constitution. He added that Article 3 paragraph (2) of the Judiciary Law states that there shall be no interference to the judiciary outside of the judicial authority, except in matters as stipulated in the 1945 Constitution.
The ad hoc judges, Padjalangi said, are appointed to help rule on cases that require specialties, such as banking crimes, tax crimes, corruption, children, industrial relations, and telemathics. The House believes that ad hoc judges’ judicial independence shouldn’t be interfered with term limits because one of the requirements for those judges as per Article 12 letter g of the a quo law is honesty, fairness, competency, moral integrity, and good reputation.
Regulated in Anti-Corruption Court Law
At the hearing, the justices also heard the Government, represented by an expert staff of the Interagency Relations of the Law and Human Rights Minister, Dhahana Putra. He responded to the Petitioners’ wish of the elimination of term limit of ad hoc judges in the anti-corruption court, which they believe may hinder the judges’ independence.
The Government believes that the Petitioners’ rights and obligations are regulated in the Anti-Corruption Court Law. Their constitutional rights are violated only when their appointment and function aren’t regulated by law.
“The Government believes that the Petitioners did not suffer any constitutional impairment because their position and function as ad hoc judges are regulated by the Anti-Corruption Court Law,” Dhahana said.
The Government also asserted that the Petitioners’ performance as ad hoc judges were not hindered or discriminated. The Petitioners have also served for nearly two terms. Although their terms almost end, they have the opportunity to apply for the next term through a selection process. Based on those facts, the Government stated that the Petitioners’ loss didn’t have any causal relationship with the a quo article, actually or potentially, or inevitably according to logical reasoning.
Also read:
Two Ad Hoc Judges of Anti-Corruption Court Challenges Provision on Term of Office
Challengers of Term of Office of Anti-Corruption Court’s Ad Hoc Judges Revise Petitum
The Petitioners of case No. 85/PUU-XVIII/2020 are Sumali and Hartono (Petitioners I and II), ad hoc judges of the anti-corruption court at the Denpasar District Court (Bali). They challenge Article 10 paragraph (5) of the Anti-Corruption Court Law that reads, “Ad Hoc Judges as referred to in paragraph (4) serve for a term of office of 5 (five) years and can be reappointed for 1 (one) more term.”
They argued that their constitutional rights had been violated by the enactment of the article. They also said the provision on the terms of anti-corruption court’s ad hoc judges could threaten the judges’ freedom and create problems in the appointment and dismissal of these judges.
The limit of terms of office for anti-corruption ad hoc judges to five years and a one-term reappointment is very detrimental to the Petitioners because it contradicts the 1945 Constitution and Law No. 48 of 2009 on the Judicial Authority, which regulates the judicial authority in Indonesia. In the provision of the law, there is no single article that regulates the limit of terms of judges in the judiciary and the Supreme Court of the Republic of Indonesia, so the norm on the limit of terms of ad hoc judges in the anti-corruption court is a real loss for the Petitioners, as it goes beyond the basic provisions—Article 24 paragraph (1), Article 27 paragraph (1) and paragraph (2), and Article 28D paragraph (1) of the 1945 Constitution.
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/3/2021 15:30 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Wednesday, June 02, 2021 | 23:14 WIB 332