Constitutional Justice Manahan M. P. Sitompul reading out the Court’s legal considerations at the ruling hearing of Law No. 7 of 2020 on the Constitutional Court, Monday (6/20/2022). Photo by Humas MK/Ifa.
Tuesday, June 21, 2022 | 12:15 WIB
JAKARTA, Public Relations— The Constitutional Court (MK) ruled the supervision of constitutional justices by the Judicial Commission unconstitutional because it was deemed to have hindered the Constitutional Court from exercising its independence and impartiality as a judicial institution, the Court asserted in its legal considerations in case No. 56/PUU-XX/2022 filed by Ignatius Supriyadi, an advocate. In its ruling, the Court granted in part the judicial review petition of Article 27A paragraph (2) letter b of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court.
“[The Court] adjudicated, grants the Petitioner’s petition in part; declares Article 27A paragraph (2) letter b 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 insofar as the phrase ‘1 (one) member of the Judicial Commission’ not be interpreted as ‘1 (one) public figure who has high integrity and understand the law and the Constitution and is not a member of any political party,’” said plenary chair Chief Justice Anwar Usman alongside the other constitutional justices at the ruling hearing on Monday, June 20, 2022.
In its legal considerations read out by Constitutional Justice Manahan M. P. Sitompul, the Court was of the opinion that the provision on one of the Constitutional Court Honor Council’s members being from the Judicial Commission, as referred to in Article 27A paragraph (2) letter b, was not in line with the Court’s considerations in one of its previous decisions.
“… because in the considerations of the aforementioned decision, the Court has emphasized that [it] has independent power, so in exercising its judicial authorities [it] cannot be overseen by another state institution,” Justice Manahan said at the virtual ruling hearing in the plenary courtroom.
In other words, he added, the Court believed supervision over constitutional justices by the Judicial Commission was unconstitutional since it had led the Court to have been hindered from exercising its independence and impartiality as a judicial institution. If a member of the Honor Council was from the Judicial Commission and supervising the constitutional justices, it would mean that the constitutional justices were under the Judicial Commission’s supervision when the Court’s founding based on the 1945 Constitution is to ensure that the 1945 Constitution be implemented well, including in the relations between state institutions, so that it could perform its duties independently without any interference.
Based on the above considerations, the Court asserted that the membership of the Honor Council should no longer involve the Judicial Commission. However, in order to avoid vacancy in the membership before legislators amend it, the Court could find a replacement among community figures who has high integrity and understand the law and the Constitution and is not a member of any political party in order to help ensure the neutrality and independence of the Ethics Council.
“Thus, with such a change in composition, the Court can continue drafting the Constitutional Court Regulation on the Constitutional Court Honor Council that the Court has been drafting as mandated by Article 27A paragraph (7) of the a quo, which stipulates that the structure, organization, as well as session procedure of the Constitutional Court Honor Council be regulated in a Constitutional Court Regulation,” Justice Manahan said.
“Considering that based on all the abovementioned legal considerations, the Court is of the opinion that the Petitioner’s argument was legally valid in part. Meanwhile, other issues were not further considered because they were deemed irrelevant,” Justice Manahan stressed.
Dissenting Opinion
Constitutional Justice Saldi Isra has a dissenting opinion on the a quo decision. He believes the petition should be rejected.
He asserted that the constitutionality of the membership of a Judicial Commission member in the Constitutional Court Honor Council (MKMK) actually depended on how the Honor Council was formed. If it was formed as a permanent council to supervise constitutional justices, the position of a Judicial Commission member within it would be unconstitutional because it would not be in line with the Constitutional Court Decision No. 005/PUU-IV/2006 dated August 23, 2006. “Based on the legal considerations in the decision, constitutional justices are not included in the definition of judges whose ethical behavior shall be supervised by the Judicial Commission,” he said.
However, Justice Saldi added, if the Honor Council was ad hoc, meaning temporary, essentially to follow up on reports on allegations of serious violations by constitutional justices by summoning and examining the reported justice and asking for information from relevant parties and then giving penalty or ordering rehabilitation, the position of a Judicial Commission member within the council would not contradict that decision. As such, so far nobody has raised any concern due to the council’s ad hoc position.
Importance of Ethics Council
In his opinion, Justice Saldi also emphasized the importance of the Ethics Council (Dewan Etik) as part of institutional reinforcement, which the Ministry of Law and Human Rights asserted in an academic paper on the Constitutional Court bill in 2017 through the National Legal Development Agency (BPHN). He asserted that the council would improve public trust in the Constitutional Court. Before the new Constitutional Court Law was enacted, the Ethics Council serves to maintain the honor and dignity of constitutional justices. It was initiated by the Constitutional Court to help it collect, manage, and review reports and/or information on alleged violations by constitutional justices.
Justice Saldi also revealed that prior to the council’s formation, every report on alleged violations by constitutional justices had been submitted directly to the chief justice of the Constitutional Court, who would then assess whether it should be followed up or not. This indicated that the chief justice’s subjectivity could appear when assessing each incoming report.
“Therefore, the Ethics Council or any other similar instruments that are permanent can actually prevent conflicts of interest and, at the same time, avoid subjective judgments. Filing a [report] of alleged violations by a sitting constitutional justice, even if through a justice deliberation meeting (RPH), especially with regard to oneself or other justices, would lead to awkwardness or embarrassment among fellow constitutional justices. In this case, by establishing an Ethics Council, hopefully a neutral and more objective attitude will emerge in examining and assessing any findings or reports it receives,” Justice Saldi said.
If such instruments would not be established in the future, he added, the best alternative would be making the Constitutional Court Ethics Council permanent with authorities and duties to oversee constitutional justices, which would replace those the Honor Council performed. Such a permanent council would bar any member of the Judicial Commission.
However, if the option taken was to position the Honor Council in the Ethic Council’s position before the new Constitutional Court was enacted, the Judicial Commission member’s inclusion would be unconstitutional. This means that that interpreting the Judicial Commission membership in the council without any explanation whether the council would be permanent or ad hoc is not justified.
“Not to mention, the one Honor Council member from among the sitting constitutional justices would potentially lead to problems and new issues in upholding the code of ethics and code of conduct of constitutional justices. The absence of a clear, comprehensive explanation on the permanence of the Honor Council as referred to in Article 27A paragraph (2) letter b of Law No. 7 of 2020 potentially destroys the true meaning of the enforcement of the code of ethics and code of conduct of constitutional justices,” Justice Saldi stressed.
Writer : Nano Tresna Arfana
Editor : Lulu Anjarsari P.
PR : M. Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/23/2022 11:06 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 | 12:15 WIB 195