Constitutional law professor Bagir Manan as the Petitioners’ expert testifying virtually at the judicial review of Law No. 7 of 2020 on the Constitutional Court, Thursday (11/18/2021). Photo by Humas MK/Panji.
Thursday, November 18, 2021 | 16:04 WIB
JAKARTA, Public Relations—The constitutional justices must review the provision on the tenure of constitutional justices, chief constitutional justice, and deputy chief constitutional justice in Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court (MK) formally, constitutional law professor Bagir Manan stressed in his testimony as an expert for the for the Petitioners of case No. 100/PUU-XVIII/2020 at a hearing on Thursday afternoon, November 18, 2021.
He reasoned that the material judicial review of the Petitioners’ petitions would lead to a conflict of interest among the constitutional justices. In contrast, in the formal judicial review, they would not review the content of the norm, but whether the lawmaking process was in line with the existing procedure.
“The formal judicial review only concerns the formation of the norm, whether it complies with lawmaking provisions or not. As it does not concern the content [of the norm], there wouldn’t be any conflict of interest with the justices’ duty to examine, adjudicate, and decide on the formal judicial review petitions. This is in contrast with the material judicial review, where in examining, adjudicating, and deciding on the content [of the norm] there could be conflict of interest among the justices or the Court,” he said at the hearing, which also examined No. 90/PUU-XVIII/2020, No. 96/PUU-XVIII/2020
Manan said that in a formal judicial review of these petitions, the constitutional justices would not need to apply the principle nemo judex in causa sua [“no one should be a judge in their own cause”].
“Aside from those, can the principle nemo judex in causa sua not be in terms of general principles of good legislation? Negligence, let alone deliberately override of these principles, may lead to unconstitutional contents of a law,” said the Chief Justice of the Supreme Court of 2001-2008.
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Following Rules
The argument regarding the discreet discussion of the Constitutional Court bill, Manan said that if the legislatures had followed existing procedure, the petitions would not have been filed. However, the legislatures prioritized the object and disregarded the existing lawmaking procedure.
“In this case, I’d like to quote Jonathan Herring in his book Legal Ethics. He believes that one of the keys to ethics is following the rules, be it normative rules, the principles of good lawmaking, or the principles of good governance. Simply put, following the rules is a form of upholding ethics in the state,” he stressed at the hearing chaired by Deputy Chief Justice Aswanto.
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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.
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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.
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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 11/19/2021 11:11 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.
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