Court Rejects Petition on Judicial Commission Law by Ad Hoc Judge Candidate

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Chief Justice Anwar Usman reading out the ruling for the judicial review of Law No. 18 of 2011 on the Judicial Commission, Wednesday (11/24/2021). Photo by Humas MK/Ilham W.M.

Wednesday, November 24, 2021 | 19:42 WIB

JAKARTA, Public Relations—The Constitutional Court (MK) ruled to a judicial review petition of Law No. 18 of 2011 on the Amendment to Law No. 22 of 2004 on the Judicial Commission. It was filed by Burhanudin, a lecturer who had entered the selection of ad hoc judges of the Court of Criminal Acts of Corruption in 2016, who challenges Article 13 letter a of the Judicial Commission Law.

“[The Court] rejects the Petitioner’s petition in its entirety,” said Chief Constitutional Justice Anwar Usman reading out the verdict for case No. 92/PUU-XVIII/2020 at a virtual ruling hearing on Wednesday, November 24, 2021.

Reading out the Court’s considerations, Constitutional Justice Saldi Isra said the Court believes that the legislatures do not discriminate against supreme justices and ad hoc judges in the Supreme Court (MA) in terms of recruitment. It is their legal policy to fulfill the legal needs in society to provide protection, guarantee, and fair legal certainty.

He added that the authority to recruit ad hoc judges in the Supreme Court concerns the effort to maintain and uphold the honor, dignity, and conduct of judges for upholding law and justice. This is because ad hoc judges in the Supreme Court are expected to contribute to improving the quality of decisions in the Supreme Court through their expertise.

As such, Justice Saldi added, the judges’ independence and impartiality are required to realize independent judiciary. As such, the selection of ad hoc judges in the Supreme Court by the Judicial Commission must be professional and objective. The Court holds that this selection is necessary as long as the Supreme Court requests it.

Constitutionally, Justice Saldi continued, the 1945 Constitution has determined that the supreme justices are the highest positions in the Supreme Court proposed by the Judicial Commission. Referring to the legal politics of the creation of the Judicial Commission Law, especially as ad hoc judges are judges in the Supreme Court, their selection by the Judicial Commission is justified as per Article 24 paragraph (1) of the 1945 Constitution. In addition, the selection process by an independent body designed by the Constitution does not violate the recognition, guarantee, protection, fair legal certainty, and equal treatment before the law as stipulated in Article 28D paragraph (1) of the 1945 Constitution.

Based on those legal considerations, the Court deem the Petitioner’s entire arguments legally groundless.

Also read:

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Govt, Supreme Court, Judicial Commission Respond to Judicial Commission’s Authority in Selecting Ad Hoc Judges

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The Court also quoted the legal considerations of a previous decision on the Judicial Commission’s authority, such as that in paragraphs [3.9] and [3.10] of Decision No. 43/PUU-XIII/2015, which considers that the phrase ‘other authorities’ in Article 24B paragraph (1) of the 1945 Constitution serves only in maintaining and upholding the honor, decency, dignity, and conduct of judges and cannot be expanded with any other interpretation. However, the legal considerations were meant to limit the Judicial Commission’s authority in the selection of judge candidates in the courts under the Supreme Court, especially in the courts of first instance, not in the selection of supreme justices. In addition, the 1945 Constitution does not authorized legislatures to expand the Judicial Commission’s authorities.

Also read:

House: Ad Hoc Judges in Supreme Court in Equal Position as Supreme Justices

Zainal Arifin Mochtar: Role of Judicial Commission to Nominate Supreme Justice Candidates

Ni’matul Huda: Legislators Can Arrange Recruitment of Supreme Court’s Ad Hoc Judges

Benny K. Harman Talks Debates on Ad Hoc Judges During Discussions of Judicial Commission Bill 

At the preliminary hearing, counsel Zainal Arifin Hoesein said the Petitioner felt disadvantaged by Article 13 letter a of the Judicial Commission Law, especially the phrase “and ad hoc judges.” The provision equates ad hoc judges and Supreme Court justices, which is a violation of 24B paragraph (1) of the 1945 Constitution.

The Petitioner believed ad hoc judges in the Supreme Court were not equal to supreme justices in terms of status, functions, and authorities. Ad hoc judges, especially in the anti-corruption court, used to be selected by the Supreme Court following the Anti-Corruption Court Law, before the provision in the Judicial Commission Law came into effect. The older law had given ad hoc judge candidates a legal certainty to enter the selection following their qualifications.

The Petitioner believed the anti-corruption court was under the Supreme Court as a special court under the general court, which was established to help the Corruption Eradication Commission (KPK) eradicate corruption in the country. Therefore, ad hoc judges are inseparable from the authorities of the Supreme Court as stipulated in the 1945 Constitution and the Judicial Powers Law.

However, Article 13 letter a of the a quo law is an indication that the legislators have expanded the Judicial Commission’s authority from proposing supreme justices to also proposing ad hoc justices in the Supreme Court. in Therefore, equating the selection of supreme justices to that of ad hoc justices, while both have structural and status differences, is a violation of the values of justice.

In addition, based on the provision of Article 24B paragraph (1) of the 1945 Constitution and the Constitutional Court Decisions No. 005/PUU-IV/2006 on August 23, 2006 and No. 43/PUUXIII/2015 on October 7, 2015, Article 13 letter a of Law No. 18 of 2011 on the Amendment to Law No. 22 of 2004 on the Judicial Commission has been declared unconstitutional. Therefore, the Petitioner requested that the Constitutional Court declare Article 13 letter a of the Judicial Commission Law contrary to Article 24B paragraph (1) of the 1945 Constitution and not legally binding.   

Writer        : Utami Argawati
Editor        : Nur R.
PR            : Andhini S.F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 11/25/2021 16:17 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.