Constitutional Justice Enny Nurbaningsih reading out the Constitutional Court’s legal considerations at the ruling hearing of the formal and material judicial review of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court, Monday (6/20/2022). Photo by Humas MK/Ifa.
Monday, June 20, 2022 | 23:56 WIB
JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) ruled to reject the formal judicial review petition of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court filed by Allan Fatchan Gani Wardhana, a law faculty lecturer and head of the Center for Legal and Constitutional Studies of the Islamic University of Indonesia (UII). It also ruled the material judicial review petition inadmissible.
“[The Court] adjudicated the formal judicial review [to] reject the Petitioner’s petition in its entirety, [and] the material judicial review [to] declare the Petitioner’s petition inadmissible,” said Chief Justice Anwar Usman at the ruling hearing for Decision No. 90/PUU-XVIII/2020, which took place virtually from the Constitutional Court on Monday, June 20, 2022.
In its legal considerations, the Court asserted that the Petitioner could not explain clearly the causality between both the perceived potential and factual losses and the articles in the Constitutional Court Law that the Petitioner challenged. Moreover, what the Petitioner had described in relation to his legal standing were not relating to the impairment of his constitutional rights, further proving that there was no relevance between the perceived impairment and the articles in question.
“In addition to these considerations, the Court is of the opinion that the Petitioner as an individual Indonesian citizen who works as a teacher with the a master’s degree in law has not fulfilled the requirements to become a constitutional justice because one of [them] is a doctoral degree. The Court is of the opinion that the Petitioner had no legal standing in filing a material judicial review petition of Law No. 7 of 2020 a quo,” said Constitutional Justice Enny Nurbaningsih reading out the legal considerations of the decision.
She further explained that the Petitioner argued that the formal lawmaking process of the Constitutional Court Law had violated the principle of openness and was contrary to lawmaking provisions, particularly with regard to the lack of public participation as well as the closed and hasty discussion. Based on the legal facts revealed in the hearings, the Court asserted, in particular the House and president’s statement, it turns out that the bill for the Second Amendment to Law No. 24 of 2003 had been included in the 2015-2019 Prolegnas (National Legislative Program) and the Prolegnas priority list of 2019.
In addition, Justice Enny added, regardless whether the articles requested for a material review were unconstitutional, the Court believes the procedure for amending the a quo Law, which is based on the open cumulative list, is a follow-up to several decisions of the Constitutional Court, thus the argument on the amendment procedure for Law No. 7 of 2020 was no longer relevant. However, it was important for the Court to emphasize that if proposed bills were included in the open cumulative list, they can actually be stipulated into law at any time and the number is not limited as long as they meet the criteria as referred to in Article 23 paragraph (1) of Law No. 12 of 2011.
Because the amendment to the Constitutional Court Law was a follow-up on the Constitutional Court decision, Justice Enny said it was no longer relevant to make the bill discussion a prerequisite, including in this case the strict requirement of public participation as stated in the Constitutional Court Decision No. 91/PUU-XVIII/2020 dated November 25, 2021.
“This is meant so that the essence of the amendment would fully adopt the substance of the Constitutional Court decision. In this case, if the amendment was made similar to a bill of law outside the open cumulative list, it could potentially judge and even negate the Constitutional Court decision,” she added.
The Court is of the opinion that the Petitioner had the legal standing to file for a formal review, but not for a material review. Meanwhile, the subject matter of the petition in the formal review was not legally grounded. Therefore, the subject matter of the petition and other matters in the material review were not considered further.
Also read: Provision on Age of Constitutional Justices Challenged
Concurring and Dissenting Opinions
There were a dissenting opinion and a concurring opinion by Constitutional Justices Wahiduddin Adams and Suhartoyo, as well as a dissenting opinion by Constitutional Justice Saldi Isra.
Constitutional Justice Wahiduddin Adams presented different reasoning and opinion in relation to the formal review. He concluded that the formation of the Constitutional Court Law indeed strongly indicated that it had been carried out in haste. Moreover, after clear and in-depth examinations of each stage of the formation of the Constitutional Court Law, various evidence presented, as well as the evidence revealed in the hearings, Justice Wahiduddin believes that the formation of the Constitutional Court Law did have shortcomings and might not have been urgent. However, he added, there were also several substantive and fundamental changes that were beneficial in ensuring constitutional supremacy and increasing the independence and impartiality of the Court.
Meanwhile, for the material review of Article 15 paragraph (2) letter d of the Constitutional Court Law, Justice Wahiduddin is of the opinion that “the minimum age is 55 (fifty-five) years” as one of the minimum requirement for constitutional justice candidates is not essentially a matter of normative constitutionality, but is an open legal policy by the legislators as long as its regulation is justified and its argument valid, following the needs of the time, and seriously considers the life and intellectual maturity as well as the diversity of the professional experience of prospective constitutional justices.
“So, since the Petitioner’s argument that the minimum age requirement of 55 years for a constitutional justice candidate is considered not ideal, he should have conveyed his aspiration and argument to the legislators and not to the Constitutional Court on the grounds that there are constitutionality issue of the norm,” Justice Wahiduddin said.
Meanwhile, Justice Suhartoyo asserted, the material in the Constitutional Court Law that was amended was the key things that the legislators followed up on through an open cumulative system due to the Constitutional Court decision.
Therefore, he added, the amendment cannot be separated from the material of the law, as long as it relates to matters relating to the office of constitutional justices. The material for the Petitioner’s petition was closely related to the position of constitutional justices, so the entirety of the amendment to the Constitutional Court Law must be protected from issues aimed at reviewing the constitutionality of said norms.
“Thus, should any parties claim that the amendment to the a quo law was defective [and] not in accordance with what was decided by the Constitutional Court in the follow-up amendment, their opinions/views should be filed to the legislators for correction (legislative review),” he explained.
Meanwhile, Constitutional Justice Saldi Isra is of the opinion that the Court’s verdict or stance, even though factual—for example, regarding the age requirement that has not been met to become a constitutional justice and the absence of a doctoral degree—the Petitioner at least could potentially be harmed by the enactment of the norms.
“Therefore, without having to elaborate on the fulfillment of the requirement for the loss of a constitutional right to be able to file a petition to the Constitutional Court, I believe there is no doubt at all to arrive at the attitude and stance [that] the Petitioner has suffered, or at least could potentially suffer, constitutional impairment so that he had the legal standing to file the a quo petition,” he said.
Justice Saldi explained that the legislators had explained that one must at least be 55 years of age to be considered to have better integrity and personality, vast experience, statesmanship, and mastery of the Constitution and state administration. Academically, the age limit is based on the Constitutional Court decision that is final because constitutional justices have great responsibility to God, society, and the state.
“Within reasonable reasoning, this explanation seems to intend to negate the empirical facts regarding the filling of constitutional justice vacancy that has taken place. Since the Court’s establishment, a number of constitutional justices were appointed when they were under 55 years of age, some even under 50 years of age. For example, Jimly Asshiddiqie was appointed a constitutional justice at the age of 47 and Hamdan Zoelva had not yet reached the age of 48 [when he was appointed]. In fact, I Dewa Gede Palguna was 42 years old when he was first appointed as a constitutional justice. Then, is there anyone who doubted their integrity, virtuosity, fairness, statesmanship, and mastery of the Constitution and state administration even though they were appointed as constitutional justices before reaching the age of 55?” Justice said explained.
Also read: Petitioner of Constitutional Court Law Reinforces Legal Standing
At the preliminary examination hearing on Tuesday, November 10, 2020, the Petitioner asserted 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 violated Article 1 paragraph (3), Article 24 paragraph (1), Article 28D paragraph (1), and Article 28D paragraph (3) of the 1945 Constitution. He asserted that the formal lawmaking process of the newly revised Constitutional Court Law had violated and contradicts the provisions on lawmaking procedure in the Law on the Formation of Laws and Regulations, which implements Article 22A of the 1945 Constitution.
The Petitioner challenged Article 15 paragraph (2) letter d, which raised the age limit for constitutional justices from 47 to 55 years. The Petitioner believed it to not be urgent and was not even mentioned in the academic text for the Constitutional Court bill. He also believed it to be in violation of the Constitutional Court Decision No. 7/PUU-XI/2013, thus the legislators had violated the rights of citizens to recognition, guarantee, protection, and fair legal certainty and equal treatment before the law through the norm.
Writer : Utami Argawati
Editor : Nur R.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/21/2022 15:52 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.
Monday, June 20, 2022 | 23:56 WIB 211