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House Commission III member Taufik Basari testifying virtually at the judicial review hearing of Law No. 7 of 2020 on the Constitutional Court Law, Monday (9/8/2021). Photo by Humas MK/Ifa.

Monday, August 9, 2021 | 15:48 WIB

JAKARTA, Public Relations—Constitutional Justice Saldi Isra spoke of the heavy burden on the constitutional justices’ shoulders due to the amendment of Law No. 24 of 2003 into Law No. 7 of 2020 on the Constitutional Court. He said that such a burden emerged when the Court adjudicate on cases that the public didn’t accept. An assumption has spread in society that the amendment to the Constitutional Court Law was part of a negotiation between the Court and the legislature. Therefore, Justice Saldi requested that the House of Representatives (DPR) explained that the constitutional justices were not involved in it.

“Seven constitutional justices have benefitted from the enactment of the [new] law. I’m one of those with the most benefits. [I] have been saved [by] the transitional provision since [I am not yet] 55 years old. Mr. Taufik Basari and the Government understand that we, the Constitutional Court, have [received backlash] from many sources due to this law. So, please explain, was [the Constitutional Court] involved in this process? The Constitutional Court has a heavy burden, if we decide [on cases on the Constitutional Court Law] that do not follow the [expectation] of some elements of society, it will be assumed that this law was part of negotiation. Please explain, because we have tried to decide [on cases] with legal considerations and so on, but [there is an allegation] that this law is like sweets that the legislature give to the Court,” Justice Said at the hearing for cases No. 90/PUU-XVIII/2020, 96/PUU-XVIII/2020, and 100/PUU-XVIII/2020.

Justice Saldi believes that the House used several Constitutional Court decisions as a reference for the amendment to the Constitutional Court Law, such as Decisions No. 49/PUU-IX/2011, 34/PUU-X/2012, and 7/PUU-XI/2013. However, he expressed regret that the Decision No. 53/PUU-XIV/2016 was not used as a reference. He believes that criticism would not have been leveled at the Court if the amendment only applied to constitutional justices that would be selected after the a quo law went into force. “What is the reason behind the House and the Government applying this law on existing constitutional justices,” he asked?

In response, House Commission III member Taufik Basari from the National Democratic (Nasdem) Party stressed that there was no negotiation between the House and the Constitutional Court. During his involvement in the discussion of the Constitutional Court bill, he had not been aware of any effort to favor the constitutional justices.

“The allegation that the law was sweets, I have said that it was a malicious allegation that made it seem as if the Constitutional Court’s honor could be pawned for an office. This is malicious, as we should preserve the Constitutional Court’s honor,” Taufik said at the hearing that took place on Monday afternoon, August 9, 2021.

Also read: Provision on Age of Constitutional Justices Challenged 

Included in Prolegnas

Testifying on behalf of the House, Taufik also said that the Constitutional Court Law was an official open cumulative bill (RUU) that was included in the National Legislative Program (Prolegnas) as it had been included in the previous year’s problem inventory list (DIM) and had met the requirements for a carry-over. As a bill, it had also had a review, an analysis, and an academic text, and the purpose of its proposal was clear.

Taufik also said that the third amendment bill had had clear objectives, proper hierarchy, appropriate content, and transparency. It had also undergone the planning, formulation, stipulation, and promulgation stages, he said. Therefore, it can be reviewed both formally and materially.

The bill had been planned since October 30, 2019 when a draft was sent to relevant commissions and faction members. It was also planned with inputs from the public, such as centers for law studies and the National Commission on Violence Against Women (Komnas Perempuan). Taufik revealed that on June 11, 2020, the president sent a letter to assemble the legislature in a meeting to discuss it.

“The meeting on August 24, 2020, which was chaired by the [House] Commission III, resulted in a work meeting to elaborate on the bill on the third amendment. It was ratified on September 1, 2020 and then promulgated into the Third Amendment to the Constitutional Court Law on September 9, 2020,” Taufik explained.

Also read: Researchers, Lecturers Challenge Formation of Constitutional Court Law 

Ultimate Service of Justices

Taufik also testified on the content in the a quo law that was amended. The House maintained that, based on the House’s evaluation, the constitutional justices’ term of service and the procedure to select the chief justice were revised to optimize the Court’s performance. The maximum age of 70 years was selected as a retirement age based on the term of service, experience, and career of a constitutional justice.

“So, the minimum age was set to 55 years and maximum at 70 years based on [the fact that] becoming a constitutional justice is the ultimate service for the justices, who are statesmen. Their service will end at the retirement age,” Taufik explained.

He added that the provision was a consequence of the change to the design of the justices’ term of office. Therefore, the House maintained that the term of service and the procedure of the justices’ selection were correlated.

“The change of the design of the term of service of the justices in the Constitutional Court, which was initially in periods, now as retirement age means that a constitutional justice will have the ultimate service for the nation and state,” he said.

From Periods to Retirement Age

Next, the Ministry of Law and Human Rights’ Ministerial Staff for Interagency Relations Dhahana testified on behalf of the president. Reading out his testimony, he said that the change in the justices’ term of office was related to the justices’ rights and responsibilities. Therefore, he added, the Petitioners’ allegation to the a quo norm was groundless. The norm, he said, doesn’t regulate the Petitioners’ rights, who are lecturers, teachers, advocates, etc.

“Those related to this are the Constitutional Court justices as their authority could be harmed by the [change] from periods to retirement age. Therefore, the Petitioners do not have the legal standing in the formal judicial review of the a quo law and, thus, do not have the legal standing in [these cases],” he said.

The Government maintained that the legislature had been granted authority to amend the Constitutional Court Law following the dynamics of the state life. They believed the change from periods to retirement age in relation to the constitutional justices’ service was solely to provide more guarantee so that the constitutional justices could exercise their authorities better.

“In addition, this provision may provide stimulus for the justices to master constitutionalism more in their function, so in fact the norm provides legal certainty. If the Petitioners meet the requirements to become [constitutional] justices, they have equal opportunity to become one,” Dhahana said.

Also read:

Constitutional Court Law Said to Have Restricted Constitutional Justice Candidates

House and Govt Not Ready, Hearing on Constitutional Court Law Delayed

The Petitioner of case No. 90/PUU-XVIII/2020, Islamic University of Indonesia’s (UII) law lecturer Allan Fatchan G.W., argues that Article 15 paragraph (2) letter d, Article 22, Article 23 paragraph (1) letter d, Article 26 paragraph (1) letter b, and Article 87 of the Constitutional Court Law violates Article 1 paragraph (3), Article 24 paragraph (1), Article 28D paragraph (1), and Article 28D paragraph (3) of the 1945 Constitution. He believes that the formal process of the newly-revised Constitutional Court Law violates and contradicts the provisions on the lawmaking procedure in the Law on the Formation of Laws and Regulations, which implements Article 22A of the 1945 Constitution.

The Petitioner challenges the content of Article 15 paragraph (2) letter d, which raises the age limit for constitutional justices from 47 to 55 years. He believes the limit is not urgent and it isn’t mentioned in the academic text for the Constitutional Court bill. Not to mention, it is against the Constitutional Court Decision No. 7/PUU-XI/2013. Therefore, the legislature has violated the rights of citizens to recognition, guarantee, protection, and fair legal certainty and equal treatment before the law for the provision of this norm.

The petition No. 96/PUU-XVIII/2020 was filed by advocate Priyanto, who maintains that Article 87 letters a and b of the Constitutional Court Law has violated Article 28D paragraph (1) of the 1945 Constitution. He believes that the norm has changed the age requirement for constitutional justices from 47 years to 55 years, now without maximum age. The law also requires an undergraduate degree in law. The previous law required either an undergraduate or a master’s degree in law. The Petitioner aspires to become a constitutional justice as he has met the requirements. However, the a quo law has restricted him or might even in achieving that.

Meanwhile, the Petitioners of case No. 100/PUU-XVIII/2020 allege that Article 15 paragraph (2) letters d and h, Article 18 paragraph (1), Article 19, Article 20, Article 23 paragraph (1), Article 59 paragraph (2), and Article 87 of the Constitutional Court Law are unconstitutional. They assert that the legislature has manipulated the law under the pretense of following up on the Constitutional Court’s decision. The revision of the law also violates the carry-over principle and the formation of good statutory laws, they argue. It also cannot be accounted for academically and is only a formality. The discussion was carried out behind closed doors without involving the public.

Materially, the Petitioners challenge the limitation of the background of Supreme Court-nominated justice candidates in Article 15 paragraph (2) letter h of the Constitutional Court Law and the position of constitutional justice candidates as the representation of the nominating agencies. They also question the constitutional interpretation of the recruitment system of constitutional justice in Article 19 of the Constitutional Court Law and its elucidation as well as Article 20 paragraphs (1) and (2), as well as that of the minimum age of constitutional justices and their terms of service.

Before concluding the hearing, Chief Justice Anwar Usman informed that the next hearing would take place on Tuesday, August 24, 2021 at 11:00 WIB to hear 3 experts for the Petitioner of case No. 90/PUU-XVIII/2020.

Writer        : Sri Pujianti/Lulu A.
Editor        : Lulu Anjarsari P.
PR            : Raisa/Fitri/Halim
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 8/9/2021 19:38 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.

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