Judicial review hearing of Article 23 paragraphs (1) and (2), Article 27A paragraph (2) of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court, Thursday (2/16/2023). Photo by MKRI/Panji.
Thursday, February 16, 2023 | 16:05 WIB
JAKARTA (MKRI) — Advocate Zico Leonard Djagardo has filed a judicial review petition of Article 23 paragraphs (1) and (2) and Article 27A paragraph (2) of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court. The preliminary hearing for case No. 17/PUU-XXI/2023 took place in the Constitutional Court’s plenary courtroom on Thursday, February 16, 2023.
“This case is a repeat of (Decision No. 103/PUU-XX/2022) on the dismissal of Constitutional Justice Aswanto,” the Petitioner said before Constitutional Justices Daniel Yusmic P. Foekh (panel chair), Wahiduddin Adams, and Suhartoyo.
Article 23 paragraph (1) of the Constitutional Court Law reads, “The constitutional justice shall be dismissed honorably for the following reasons: a. Death; b. Resignation at one’s own request submitted to the Chief Justice of the Constitutional Court; c. Aged 70 (seventy); d. Omitted; or e. Physical or mental illness in a continuous manner for 3 (three) months so as to be unable to perform his/her duties as evidenced by a physician’s statement.”
Article 23 paragraph (2) reads, “The constitutional justice shall be dismissed dishonorably if: a. Sentenced to imprisonment under a court decision having permanent legal power for committing any crime subject to imprisonment; b. Commits any misconduct; c. Fails to attend a hearing that is his/her duty and obligation 5 (five) times consecutively without any valid reason; d. Breaches the oath of office; e. Deliberately hinders the Constitutional Court in passing a decision within the period as referred to in Article 7B paragraph (4) of the 1945 Constitution of the Republic of Indonesia; f. Breaches the prohibition on double job as referred to in Article 17; g. No longer qualifies as a constitutional justice; and/or h. Breaches the Code of Ethics and the Code of Conduct for Constitutional Justices.”
Article 27A paragraph (2) reads, “In order to enforce the Code of Ethics and the Code of Conduct for Constitutional Justices as referred to in paragraph (1), a Constitutional Court Ethics Council shall be formed, the membership of which shall consist of: a. 1 (one) constitutional justice; b. 1 (one) member of the Judicial Commission; c. 1 (one) academic having a background in law; d. Omitted; and e. Omitted.”
In his petition, the Petitioner said that as a litigant, he needs the constitutional justices’ independence in handing down rulings. So, the House of Representatives’ (DPR) interference by replacing a constitutional justice that they had previously endorsed has violated his constitutional right to justice through the independent judiciary. The Constitutional Court’s independence, he asserted, has been undermined by the House’s dismissal of one of the constitutional justices.
He revealed his surprise when watching the recording of the ruling hearing for case No. 103/PUU-XX/2022 and reading both the decision and the hearing’s transcript and finding a stark difference between the verdict and the decision file and transcript uploaded on the Court’s website.
“How can there be a significant difference of substance between the decision read out and the decision file and the hearing transcript, where the words ‘therefore’ became ‘in the future’? I believe this is a very clear intention and not just a typo, because the meaning of the words changed is very significant. This is the first time in the history of Indonesian law that a pronounced decision is different from the decision [file]. This has never happened in any court in Indonesia, only in the Constitutional Court,” he explained.
He was certain that this was intended for the benefit of certain parties. He is also trying to find out who the perpetrators are by bringing this case to authorities through legal action.
“The Petitioner is planning to take legal action even to the end of the earth, and to take all legal avenues in the criminal justice system, state administrative court, and Constitutional Court. An investigation must be done to find out the perpetrators. One of the Petitioner’s efforts are to re-file the case,” he added.
In the provisional petitum, he requested that the Court recuse Constitutional Justices Arief Hidayat and M. Guntur Hamzah and Chief Registrar Muhidin from the case.
In the petitum of the subject, he requested that the Court declare Article 23 paragraph (1) of the Constitutional Court Law unconstitutional and not legally binding conditionally if not interpreted “including the recall by the nominating institution on the ground of dislike for annulling the nominating institution’s products,” Article 23 paragraph (2) unconstitutional and not legally binding conditionally if not interpreted “including changing the substance of a decision that has been read out in a hearing that is open to public,” Article 27A paragraph (2) unconstitutional and not legally binding conditionally if the Constitutional Court Ethics Council is not be formed within 1 month after the a quo case was decided, the phrase “1 (one) constitutional justice” in Article 27A paragraph (2) unconstitutional and not legally binding conditionally if not interpreted “1 (one) former constitutional justice,” or declare the phrase “1 (one) constitutional justice” in Article 27A paragraph (2) unconstitutional and not legally binding conditionally if not interpreted that “a constitutional justice who becomes a member of the Ethics Council is not the one being petitioned or is allegedly involved in the case petitioned to the Ethics Council.”
Justices’ Advice
Constitutional Justice Suhartoyo said that the case was a repeat of case No. 103/PUU-XX/2022 and advised that the Petitioner give a different background, especially on his legal standing and the articles that have allegedly harmed his constitutional rights.
“In this position, what is the Petitioner’s status so you can argue constitutional impairment? If the background is the dismissal [of a constitutional justice] due to making any change to the decision or any reason, please explain whether it is a disgraceful act or not, because the article petitioned has a broad meaning,” he said.
He also asked the Petitioner to pay attention to the petitum for arguing the unconstitutionality of Article 23 paragraph (1) and to make a clear argument. He advised that the Petitioner mention the requirements for an Ethics Council from among the constitutional justices, since the formation of the Ethics Council is mandated by Law.
“The Petitioner needs to study the [Constitutional Court Regulation] on the Constitutional Court Ethics Council, where the member from a sitting constitutional justice will be periodical and would not [be required of] academics and public figures. So, they will not be permanently attached to the other members. Elaborate the posita and petitum regarding this,” he said.
Next, Constitutional Justice Wahiduddin Adams highlighted the Petitioner’s legal standing and advised him to make an argument against Article 27A paragraph (2). He also asked the Petitioner to submit evidence.
“Provide evidence based on existing facts. There is something missing in the subject in the petitum, where the request for [a ruling stating the norms] conditionally constitutional means the creation of new norms, which is not the Court’s jurisdiction. The rulings that are expected must be elaborated,” he explained.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh urged the Petitioner to study the revised Lawmaking Law. He said the Petitioner would not automatically have legal standing to file the petition. He advised the Petitioner to focus on his constitutional right to file the case.
“On the recusal of several justices in the Petitioner’s provisional petitum, before the case is decided, the Petitioner should pay attention to ongoing legal process and comply with the procedure,” he said.
Before adjourning the session, Justice Foekh announced that the revised petition must be submitted by Wednesday, March 1 at 09:00 WIB. The schedule for the next hearing will be announced by the Court’s Registrar’s Office.
Writer : Sri Pujianti
Editor : Nur R.
PR : Tiara Agustina
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 2/17/2023 15:51 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.
Thursday, February 16, 2023 | 16:05 WIB 416