The Petitioner of case No. 100/PUU-XVIII/2021 on the judicial review of the Constitutional Court Law, Raden Violla Reininda Hafidz (bottom), presenting expert A.l. Andang L. Binawan (right) and witness Muhammad Ichsan (left), Thursday (10/14/2021). Photo by Humas MK/Bayu.
Thursday, October 14, 2021 | 20:20 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) held another judicial review hearing of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court in the plenary courtroom on Thursday, October 14, 2021. The bench, chaired by Chief Justice Anwar Usman, heard three cases: No. 90/PUU-XVIII/2020, No. 96/PUU-XVIII/2020, and No. 100/PUU-XVIII/2020. The hearing had been scheduled to hear the testimonies from an expert and a witness for the Petitioners of No. 100/PUU-XVIII/2020.
Alexius Andang Listya Birawan from Driyarkara Philosophy College (STF), known as Romo Andang, said basically the law is made as a means to limit power, which is an important prerequisite for the pursuit of the ideals of justice in law. Measurable and objective justice that is not distorted by subjectivity is the need for an increasingly plural society.
He added that people are aware that salus populi suprema lex esto (“the welfare of the people should be the supreme law”) can only function when it is attached to certain people. However, no one is perfect and abuse of power is very likely when the focus is not for the community but for personal gain.
“To eliminate that opportunity, law or rules are made so that the subjective interests of the holders of power are minimized and the objective interests are more dominant,” he said.
Personal Gain
Andang said power is limited by law to avoid abuse and that such limitation is regulated in detail. However, since the law is formulated through language and could be interpreted in different ways, supporting regulations are needed to ensure objectivity. Objectivity is important so that the law can be accepted by the implementers—the people.
Andang explained that procedural law, or the norm that regulates process, is a supporting regulation for the common good (bonum commune or salus populi). As such, an objective procedure that involves implementers of the law is conditio sine qua or absolutely necessary.
“It can be concluded in simple terms that the objectivity any law passed with motivation of personal gain should be doubted. At least, the potential of the reduction of general welfare as the objective of the law, both primary and secondary law, is visible,” he said.
The potential, Andang added, is more obvious where public participation in lawmaking process is overlooked, especially with regard to modern laws. The modern law is the result of compromise of various interests and of the idea of justice. Although the compromise minimizes the ideals of the law, law and justice is still upheld. This is why the participation of all elements of society in lawmaking is required.
Andang also stressed that justice is essentially the appreciation and acknowledgment of the existence of individuals or groups. When it is lacking, meaning that public participation is minimal, a law would have less value.
Many people, he said, are aware of the strong correlation between the law, judges, and wisdom—originating from the Arabic hakama. In simple terms, the law provides guarantee of justice, which means general welfare, when guarded by judges who possess wisdom. In this case, wisdom in judges means insight of meaning, content, and steps or process toward mutual welfare.
“The law is a means. It means that in a judge, the capacity to distance themselves from their interests for common interests is necessary. In addition, the wisdom in relation to general welfare concerns more than that explicitly contained in the words of law. Therefore, the logic is simple,” Andang explained.
Constitutional Court Bill
Witness Muhammad Ichsan from the Indonesian Parliamentary Center (IPC) also said at the hearing that the IPC has been observing the House’s performance since 2015 by compiling documents available in official channels, resulting in reports of routine monitoring.
He said the IPC has collected documents from the 2019-2020 sessions as well as those from the first sessions of 2020-2021. They had findings based on their latest monitoring of the level II discussion of the plenary session on September 1, 2020—held to make a decision on the bill on the third amendment to Law No. 24 of 2003 on the Constitutional Court. “We found several documents such as minutes of sessions and reports from factions. However, SILEG that I mentioned earlier could not be accessed and we didn’t find any bill [of the a quo law] as well as the final draft of the academic text that was brought to the plenary session. Meanwhile, we found its republication on the House’s official YouTube channel,” he said.
Ichsan then talked about the findings from those House sessions. The IPC has collected several briefs on the House Commission III and the House’s legislation body that is related to the bill.
“Out of the total 141 briefs that we managed to collect from the House’s website, we didn’t find any meetings where the public or experts relevant to the bill on the third amendment to Law No. 24 of 2003 on the Constitutional Court were invited,” he revealed.
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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.
Writer : Utami Argawati
Editor : Nur R.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/15/2021 10:28 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Thursday, October 14, 2021 | 20:20 WIB 337