Constitutional Justice Daniel Yusmic P. Foekh reading out the Court’s legal consideration at the ruling hearing of the judicial review of Law No. 39 of 1999 on Human Rights, Monday (6/20/2022). Photo by Humas MK/Ifa.
Tuesday, June 21, 2022 | 09:20 WIB
JAKARTA, Public Relations—The provision on the number of the members of the National Commission on Human Rights (Komnas HAM) in Law No. 39 of 1999 on Human Rights was declared conditionally unconstitutional by the Constitutional Court (MK). The ruling was declared in Decision No. 30/PUU-XX/2022 filed by Achmad Kholidin, a law lecturer of the Jakarta Muhammadiyah University, and Tasya Nabila, an activist affiliated with the nongovernmental organization (NGO) Lentera HAM.
“[The Court] grants the Petitioners’ petition in part; declares the word ‘comprises’ in Article 83 paragraph (1) of Law No. 39 of 1999 on Human Rights (State Gazette of the Republic of Indonesia of 1999 No. 165, Supplement to the State Gazette of the Republic of Indonesia No. 3886) in violation of the 1945 Constitution and not legally binding insofar as not interpreted as ‘comprises a maximum of,’” said Chief Justice Anwar Usman at the ruling hearing on Monday, June 20, 2022 in the plenary courtroom.
Meanwhile, in the legal considerations read out by Constitutional Justice Daniel Yusmic P. Foekh, the Court asserted that the stipulation of the increased number of Komnas HAM members in the Human Rights Law—from 25 to 35—was a reflection of the efforts to face the increasing demands of the protection of human rights in the Reform era. The addition was often related to the territory and population of Indonesia, which required more members to mitigate the human rights issues. However, the question was the word ‘comprises’ despite the fact that the number of Komnas HAM members never reaching 35. In 2002-2007, the commission had 23 members, and only 11 members in 2007-2012.
Based on those facts, Justice Foekh said, the fact that the number of Komnas HAM members never reaching 35 meant that the stipulation of the word ‘comprises’ was not legally certain, since it should have been imperative that the number was met. However, the fact that it was never met but was justified in practice has indeed led to legal uncertainty.
The Court asserted that in order to provide fair legal certainty, Article 83 paragraph (1) of the Human Rights Law must not be imperative but facultative, meaning that in the event that the norm cannot be met, it would not result in a violation. However, the determination of the number of Komnas HAM members is an open legal policy of the legislators, which must provide legal certainty.
“In order to provide legal certainty, the word ‘comprises’ in Article 83 paragraph (1) of the Human Rights Law shall be interpreted as ‘comprises a maximum of’. Therefore, if in practice the Komnas HAM only comprises 7 or 9 members as the Petitioners requested, it would not violate the norm of the law. Thus, the Court is of the opinion that the Petitioners’ argument relating to the word ‘comprises’ was legally grounded in part,” Justice Foekh stressed.
Also read: Komnas Ham Selection Process Questioned
Open Legal Policy
The Court also considered the constitutionality of the election and dismissal of Komnas HAM members by the House of Representatives (DPR) that does not involve the president, which the Petitioners argued had harmed the presidential system in Indonesia. According to the Court, the fact that the arrangement focuses on the House and disregards the role of the executive cannot be separated from the history of the establishment of Komnas HAM. Justice Foekh revealed that the Court understand the legislators’ choice to give the House the authority to elect Komnas HAM members because the House represents the people and, as such, the election for Komnas HAM members is left in the hand of the people’s representatives.
Regardless of the Petitioners’ argument that the Komnas HAM member election system cannot balance the powers of the House and the president, Justice Foekh said, the Court believes the method of selecting Komnas HAM members is an open legal policy by the legislators. The Constitution does not regulate the system and procedure for selecting members of state commissions, thus grants the legislators the freedom to regulate them, according to the dynamics of the state development and people’s social life.
“It was realized that this discretion would change from time to time so legislators can make effective and efficient policy choices. This policy choice becomes an open legal policy, which is the domain of legislators as long as the choices made do not exceed the authority of legislators, do not constitute an abuse of authority, and do not actually conflict with the 1945 Constitution, and have rationality that can be accounted for,” Justice Foekh said.
Also read: Petitioners of Provision on Komnas Ham Selection Process Revise Petition
Prioritizing Amendment to Human Rights Law
Justice Foekh added that although the Court declared Article 85 paragraph (1), Article 86, and Article 87 paragraph (2) letter d of the Human Rights Law constitutional, it considered the importance of monitoring and reviewing the Human Rights Law pursuant to Article 95A of Law No. 12 of 2011 on Lawmaking, which stipulates that monitoring and review of the implementation of a law is carried out by the House, the Government, and the DPD (Regional Representatives Council), the results of which can be a proposal in the preparation of the Prolegnas (National Legislation Program). The Court also emphasized that legislators can prioritize the amendment of the Human Rights Law.
“Thus, the regulation on the rational number of Komnas HAM members and the procedure for selecting, appointing, and dismissing them, which is an open legal policy by legislators, can be material for the amendment,” Justice Foekh said.
In addition, the Court also emphasized that in determining the policy to amend the Human Rights Law, it is necessary to pay attention to the selection/recruitment of the members of the Komnas HAM that is in accordance with democratic justice values developing in society, the development of political dynamics of the state administration, and it could adapt the models/processes in other countries by taking into account the distinctiveness of Komnas HAM, which is different from commissions in other countries. The policy must consider potential violations or abuse in the implementation, so that the goal of improving human rights protection for Indonesian citizens can be achieved and the commission can carry out its duties and functions effectively and efficiently.
At the preliminary hearing, the Petitioners had previously asserted that Article 83 paragraph (1) had led to legal uncertainty due to multiple interpretations of the clause “The National Commission on Human Rights comprises 35 (thirty-five) members.” They asserted the provision was unconstitutional and not legally binding if not interpreted to mean “The National Commission on Human Rights comprises nine members selected by the House of Representatives and certified by a presidential decree.”
However, in practice, the Petitioners were hindered by the a quo article while, according to the 1945 Constitution, citizens have equal opportunities in government and equal recognition before the law in participating in the election of the chair and/or members of Komnas HAM.
The Petitioners believed Article 83 paragraph (1) is related to the articles they challenged and they had made various efforts to encourage transparent, honest, and fair election process, which has been hampered by the a quo article. On this basis, the Petitioners claimed they had suffered constitutional impairment as a result of the Law.
Consequently, the Petitioners requested that the Constitutional Court grant the petition and declare Article 83 paragraph (1), Article 85 paragraph (1), Article 86, and Article 87 paragraph (2) letter d of the Human Rights Law unconstitutional and not legally binding.
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/21/2022 11:31 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 | 09:20 WIB 213