Petitioner Zico Leonard Djagardo Simanjuntak attending the preliminary hearing of the judicial review of the Constitutional Court Law virtually, Monday (11/7/2022). Photo by MKRI/Ifa.
Monday, November 7, 2022 | 13:37 WIB
JAKARTA—The Constitutional Court (MK) held a preliminary hearing for the judicial review of Article 10 paragraph (1) letter a of Law No. 24 of 2003 on the Constitutional Court as well as Article 57 points 1 and 2 and Article 87 letter b of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court Monday, November 7, 2022 in the plenary courtroom. The petition No. 103/PUU-XX/2022 was filed by Zico Leonard Djagardo Simanjuntak, an advocate.
At the hearing, the Petitioner conveyed a provisional petition, which he believes is urgent as it relates to the constitutional justices’ independence. The longer the case drags on, he asserted, the political pressure by the House of Representatives (DPR) would lead to legal instability. Not to mention, it stressed that it would not take back its recall of Constitutional Justice Aswanto. Thus, he asserted, it is important that the House’s move be adjudicated by the judiciary, in casu the Constitutional Court. The provisional petition should be a priority and urges the Court to order the suspension of all actions aimed at replacing sitting constitutional justices through procedure outside of Article 23 of the Constitutional Court Law.
“Therefore, it is a critical and urgent matter where the a quo case has been going on for over a month,” he said.
The Petitioner claimed Article 87 letter b of the Constitutional Court Law, which had been reinterpreted, had chipped away at the Constitutional Court’s freedom and independence. Thus, as a final interpreter of the Constitution, and for the sake of checks and balances, the Court must enforce justice.
The Petitioner alleged that the House had openly expressed its wish to replace Constitutional Justice Aswanto with Guntur Hamzah for a political reason, since Justice Aswanto was seen as not committed to the House. This, he claimed, shows political intervention in the judiciary. “It is called a ‘pure’ theory of law, because it only describes the law and attempts to eliminate from the object of this description everything that is not strictly law: Its aim is to free the science of law from alien elements. This is the methodological basis of the theory.”
He believes the House’s act in interpreting the letter of confirmation was used to intervene with constitutional justices, thus chipping away at the Constitutional Court’s freedom and independence. The House believes itself to not be bound by the legal considerations in the Constitutional Court’s decision, so it interpreted the letter of confirmation as an opportunity to replace constitutional justices arbitrarily. This, the Petitioner believes, would establish a bad precedent where the institutions nominating constitutional justices (the Supreme Court, the president, and the House) would believe they could replace any constitutional justices any time they want since they believe that constitutional justices are their “representation.”
In the provisional petitum, the Petitioner also stressed that a decree authorizing such action is not permissible. He argued that it has a strong background that is non nobis solum, sed omnibus (not for us alone, but for everyone), since the Court’s independence as a guardian of constitutional rights is at stake.
Meanwhile, in the petitum on the subject matter, the Petitioner requested that the Court declare Article 10 paragraph (1) letter a of Law No. 24 of 2003 unconstitutional and not legally binding if not interpreted to include constitutional complaints; the declare the word ‘verdict’ in Article 57 points 1 and 2 of Law No. 7 of 2020 conditionally unconstitutional and not legally binding if not interpreted to be valid along with its legal considerations; declare Article 87 letter b of Law No. 7 of 2020 conditionally unconstitutional and not legally binding if interpreted outside of that referred to by the legal considerations of the Constitutional Court Decision No. 96/PUU-XVIII/2020 paragraph [3.22] page 130, in that sitting constitutional justices continues their tenures without any periods, thus cannot be replaced or dismissed outside of the provision of Article 23 of the Constitutional Court Law.
Justices’ Advice
In response, Constitutional Justice Manahan M. P. Sitompul advised the Petitioner to strengthen the petition by citing other laws to reinforce the Court’s authority. “Perhaps the Lawmaking Law or also the Judicial Law. You also did not mention the [Constitutional Court Regulation] No. 2 of 2021,” he advised.
Next, Constitutional Justice Wahiduddin Adams advised the Petitioner to elaborate his constitutional impairment. “Please review the constitutional rights again. It was left out. The articles that should be referred to on constitutional rights are unclear, when you have indeed cited the Court’s jurisprudence on constitutional impairment. In the revision, please show the harmed constitutional rights, such as the right to a job in Article 28D paragraph (2) in relation to the Petitioner’s profession as an advocate,” he advised.
Meanwhile, Constitutional Justice Arief Hidayat also urged the Petitioner to strengthen his legal standing. “Your legal standing is very weak, especially in relation to Article 87 on the age limit, retirement age, and tenure of constitutional justices. This is age-related and regarding the justice education, you are still far from [meeting] the requirements set in this law. You also must be able to explain the correlation between [your] constitutional impairment and Article 87,” Justice Arief explained.
Before concluding the session, he announced that the revised petition should be filed by Monday, November 21, 2022 at 10:00 WIB.
Writer : Utami Argawati
Editor : Nur R.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 11/8/2022 11:01 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, November 07, 2022 | 13:37 WIB 354