Chief Justice Anwar Usman reading out his concurring opinion at the ruling hearing 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.
Tuesday, June 21, 2022 | 11:28 WIB
JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) declared Article 87 letter a of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court unconstitutional and not legally binding in the Decision No. 96/PUU-XVIII/2020 on Monday, June 20, 2022 in the plenary courtroom. The petition was filed by Priyanto, an advocate.
“[The Court] adjudicated, grants the Petitioner’s petition in part; declares 87 letter a of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court (State Gazette of the Republic of Indonesia of 2020 No. 216, Supplement to the State Gazette of the Republic of Indonesia No. 6554) in violation of the 1945 Constitution of the Republic of Indonesia and not legally binding,” said Chief Justice Anwar Usman reading out the verdict.
In its legal considerations, the Court declared the amendment to the minimum age from 47 to 55 for constitutional justices as the legislators’ policy. Such a choice is not prohibited nor is it unconstitutional, as is not the elimination of the periods of the constitutional justices’ term of office. The elimination, in fact, brought positive implications by reinforcing the constitutional justices’ independence and impartiality in carrying out their duties, functions, and authorities.
However, such amendment could affect other parties relating to the filling of the vacancy of constitutional justices. “Therefore, in order for the new regulation to be applied well without harming anyone who has complied with it and without harming anyone who has complied with the old law, there needs to be a transitional provision,” said Deputy Chief Justice Aswanto reading out the Court’s legal considerations.
The Court understands that Article 87 letter b of the Constitutional Court Law is a “bridge/connection” norm in order to enforce the provision of Article 15 of the Constitutional Court Law, which amends Article 15 of Law No. 8 of 2011. From a systematic interpretation point of view, it can also be said that Article 87 letter b is a “bridge” that transforms old concepts into new ones. The old concept is the period of the justices’ term of office, while the new concept is the absence thereof. Such a fundamental change ultimately has implications on the sitting constitutional justices.
The Court believes legislators’ will is higher than that of the House, the president, or the Supreme Court partially or individually. Such a position must be in line with the basic idea of constitutionalism, where the 1945 Constitution is the highest legal source or the main legal basis for all legal policies in Indonesia.
“In the recruitment of constitutional justices, the three institutions—the House, the president, and the Supreme Court—are given mandate to fill the vacancies of constitutional justices by selecting/endorsing three constitutional justice each,” Justice Aswanto added.
In its decisions to date, the Court has maintained its stance that determining the age limit for constitutional justices is an open legal policy by legislators as long as it reflects the best legal policy with the least impact on all affected parties based on the principle maximum minimorum (the absolute minimum).
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Constitutionality of Term of Office of Chief and Deputy Chief Justices
Article 87 letter a of the Constitutional Court Law regulates the term of office of the chief justice and the deputy chief justice. It reads, “The constitutional justices who currently serve as the Chief Justice and the Deputy Chief Justice of the Constitutional Court shall continue to serve as the Chief Justice and the Deputy Chief Justice of the Constitutional Court until their term of office ends based on the provisions of this Law.”
The enactment of the new provision raised a legal issue regarding the positions of sitting chief justice and the deputy chief justice based on Law No. 8 of 2011. Legislators responded to the issue by making a transitional provision in the form of Article 87 letter a of the Constitutional Court Law, which basically stipulates that the chief justice and the deputy chief justice elected based on Law No. 8 of 2011 who are currently in office will “hold office until their terms end based on the provisions of this law.”
However, the Court asserted, this provision created ambiguity in the use of the phrase “term of office” in two contexts: the term of office as a constitutional justice and that as chief justice and deputy chief justice. The absence of confirmation of the meaning of “term of office” in Article 87 letter a of Law No. 7 of 2020 has created legal uncertainty and is therefore unconstitutional.
Apart from the ambiguity, Article 87 letter a of Law No. 7 of 2020 is not in accordance with the mandate of Article 24C paragraph (4) of the 1945 Constitution, which clearly states that the chief justice and deputy chief justice are chosen among and by the constitutional justices. Therefore, they cannot hold office directly without going through an election process among and by the constitutional justices.
“Thus, the selection process of chief justice and deputy chief justice of the Constitutional Court must be returned to the main essence of the mandate of Article 24C paragraph (4) of the 1945 Constitution,” said Constitutional Justice Enny Nurbaningsih reading out the legal considerations of the decision.
The Court is of the opinion that the Petitioners’ argument regarding Article 87 letter a of the Constitutional Court Law was legally grounded. In other words, it no longer has binding legal force since the decision was pronounced. However, in order not to cause administrative problems/impacts, the sitting chief justice and deputy chief justice of the Constitutional Court remains in their positions until they are elected, as mandated by Article 24C paragraph (4) of the 1945 Constitution.
“Therefore, within a maximum of 9 (nine) months after this decision is pronounced, the election of the chief justice and deputy chief justice of the Constitutional Court must be carried out,” Justice Enny said.
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Dissenting and Concurring Opinion
Constitutional Justices Arief Hidayat and Manahan M. P. Sitompul provided a concurring opinion on Article 87 letter a, while Chief Justice Anwar Usman and Constitutional Justice Manahan M. P. Sitompul provided a dissenting opinion on Article 87 letter b.
Constitutional Justice Arief Hidayat said that Article 87 letter a of the Constitutional Court Law regulated the extension of the sitting chief/deputy chief justice until the end of their terms in five years, thus not harming them, instead it even benefit them because they their positions were extended automatically. However, the norm was in violation of Article 24C paragraph (4) of the 1945 Constitution, which reads, “The Chief Justice and Deputy Chief Justice of the Constitutional Court shall be elected among and by the constitutional justices.”
“Therefore, the extension of the term of office of the chief/deputy chief justice of the Constitutional Court cannot automatically apply in accordance with the norms of the a quo Law because the constitutional norm clearly stipulates that the chief/deputy chief justice be elected among and by the constitutional justices so it cannot be extended directly by the provisions of the a quo Law. The direct extension by the a quo Law during the term of office of the chief/deputy chief justice has negated the role and authority of constitutional justices in the election of the chief/deputy chief justice of the Constitutional Court. That way, the chief/deputy chief justice whose term of office ends after the a quo Law is enacted can continue his/her term as chief/deputy chief justice of the Constitutional Court as long as an election has taken place among and by the constitutional justices,” Justice Arief said.
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Justice Arief also said that Article 87 letter b of the Constitutional Court Law meant that any constitutional justice impacted and is ineligible due to the a quo Law, either because of age or because their term has ended, is deemed to have fulfilled the requirements and remains in office as a constitutional justice until 70 years old as long as their term of office does not extend beyond 15 years. Article 87 letter b reads, “The constitutional justices who currently serve at the time this Law is promulgated shall be deemed to have fulfilled the requirements according to this Law and shall complete their term of service until the age of 70 (seventy) years, as long as the entire term of service does not exceed 15 (fifteen) years.”
“This provision is contrary to a constitutional norm—Article 24C paragraph (3), which reads, ‘The Constitutional Court shall have nine members of constitutional justices stipulated by the President, the members are proposed by the Supreme Court, three members by the House of Representatives, and three members by the President.’ This is because Article 87 letter b a quo has negated the role and authority of the three proposing institutions—the Supreme Court (MA), the House of Representatives (DPR), and the Presiden—in determining constitutional justices until they are 70 years old as long as their term of office does not exceed 15 years,” Justice Arief said.
Therefore, he added, in order not to negate the role and authority of those institutions, the constitutional justices who do not meet these requirements needs a confirmation from the proposing institution to be able to continue their term of office as constitutional justices as stipulated in the a quo provision. When the proposing institution gives confirmation at the request of the Court, it may take a stance to: (1) Approve that the constitutional justices concerned continue his/her term of office in accordance with the provisions of the a quo Law; or (2) Refuse the extension because he/she does not meet the requirements of the provisions of the a quo Law. However, basically, the principle adopted by the transitional provisions is to protect those affected as due to regulatory changes. This applies as long as it does not conflict with the 1945 Constitution as the supreme law of the land.
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Constitutional Justice Anwar Usman provided a concurring opinion that the Court should make a decision based on at least two things. First, the principles or methods for the formation of good laws and regulations. Second, the principles of fair legal certainty and equality before the law for the enactment of a norm.
He believed that in lawmaking, norms complement one other. Not one norm in lawmaking may negate other norms. Should one does, it must not be made in accordance with the lawmaking provisions. Likewise, the transitional provisions of a law do not have a function to negate a norm in the main provisions of said law, but only to maintain the transition of the enactment of a law so that it can apply in accordance with the needs and continuity, since the enactment of the old law to the new law.
“Thus, it is clear that the transitional provisions must not negate the main provisions that have clearly and in detail regulated the enforcement of a formulation of norms,” he said.
In addition, he added, the implementation of the principles of fair legal certainty and equality before the law to the implementation of a norm, must be applied simultaneously in the judicial review of Article 87 letter b of the Constitutional Court Law. If the transitional provisions in the a quo Law were still enforced, then it is clear that contradictio interminis, or conflicts between norms in a law, would result in legal uncertainty. In addition, it can bring other negative impacts, such as constitutional losses for citizens, including the Petitioner.
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At the hearing, the Court also pronounced the Decision No. 100/PUU-XVIII/2020 on the judicial review of the Constitutional Court Law, which was petitioned by several researchers and lecturers—R Violla Reinida Hafidz, M. Ihsan Maulana, Rahmah Mutiara, Korneles Materay, Beni Kurnia Ilahi, Giri Ahmad Taufik, and Putra Perdana Ahmad Saifulloh. The Court rejected the petition in its entirety. The ruling also has concurring and dissenting opinions from the constitutional justices.
Writer : Utami Argawati
Editor : Nur R.
PR : Fitri Yuliana
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/22/2022 18:39 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.
Tuesday, June 21, 2022 | 11:28 WIB 187