Sudjito, I Dewa Gede Palguna, and Enny Nurbaningsih (left to right) at the ruling hearing of the Constitutional Court’s Ethics Council, Monday (3/20/2023) at a panel courtroom. Photo by MKRI/Panji.

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Monday, March 20, 2023 | 19:14 WIB

JAKARTA (MKRI) — Majelis Kehormatan Mahkamah Konstitusi (MKMK) or the Constitutional Court’s Ethics Council ruled Constitutional Justice M. Guntur Hamzah as having committed a violation of the constitutional justices’ code of ethics and conduct within Sapta Karsa Hutama, the seven principles or code of conduct for constitutional justices, which is the implementation of the principle of integrity. The council served the new justice a written warning. The ruling No. 1/MKMK/T/02/2023 was read out by MKMK chairman and member I Dewa Gede Palguna (public figure), Enny Nurbaningsih (sitting constitutional justice), and Sudjito (academic) at a hearing on Monday, March 20, 2023 in a panel courtroom.

In the council’s conclusions, read out by Palguna, it revealed that the phrase “therefore” (dengan demikian) had been changed to “in the future” (ke depan) in the Court’s opinion in Decision No. 103/PUU-XX/2022. The discrepancy was found between the version of the opinion read out at the ruling hearing on November 23, 2022 and the copy later uploaded to the Court’s website, signed by the nine constitutional justices. Justice M. Guntur Hamzah admitted that he had proposed a revision to the opinion.

“The suspected justice has a legal right to [propose such a revision], which has been common practice in the Constitutional Court [that could take place] as long as it receives approval from the other ruling justices, or at least the drafters, despite the lack of a standard operational procedure for it,” Palguna asserted.

The change, he added, had created incoherency in the Court’s opinion, where it affirmed its opinion in Decision No. 96/PUU-XVIII/2020. He emphasized that no conspiracy had taken place to change the transcript of Decision No. 103/PUU-XX/2022. What had really taken place, he said, was that transcripts of examination hearings were prepared in a different way than those of ruling hearings.

“Relating to different phrasing in the legal considerations in Decision No. 103/PUU-XX/2022 dated November 23, 2022 between what was read out at the ruling hearing on November 23, 2022 and what was available on the Court’s website and the copy signed by nine constitutional justices, what is in effect is that read out, that is, the decision whose legal consideration in paragraph [3.13.3] page 51 reads ‘Therefore,’” Palguna explained.

Also read: Court Forms MKMK to Investigate Change to Decision

Aggravating Factors

The MKMK revealed several aggravating and mitigating factors for the ethics breach. It cited the fact that the change to the Court’s opinion had taken place amidst public uproar on the dismissal of Constitutional Justice Aswanto and the suspected justice’s appointment as replacement as aggravating factors.

“Inevitably, the suspected justice’s action was seen by the public as an effort to save himself from allegation of the invalidity of his appointment as a constitutional justice,” Palguna said.

Another aggravating factor is that although the suspected justice had the right to propose a revision, he must have held back since he did not participate in ruling over the case. “Not to mention, when the case was decided, the suspected justice was not yet a constitutional justice,” Palguna added.

The suspected justice should have asked about the procedure for such revision to a decision that would be pronounced. “Regardless of the fact that this practice is still commonplace, it cannot be said that a procedure does not exist [for it]. [Following procedure] would have prevented any prejudice against the suspected justice on an alleged breach,” Palguna said.

Also read: MKMK Sworn in to Investigate Change to Decision

Mitigating Factors

Among the mitigating factors, Palguna said, is that such a revision was commonplace in the Court as long as it was not done in secret and if it received the other justices’, at least the drafters’, approval.

“The absence of an SOP for this common practice, like it or not, should be accepted as a mitigating factor for the suspected justice,” he added.

The council viewed the Court’s slow response to the impact of the justice’s action as another mitigating factor because several other justices had been aware of the change, as admitted by the suspected justice.

“The chief registrar was also notified so that [the change] be discussed in a justice deliberation meeting (RPH), but the meeting in question never took place on the ground of technical-psychological reason. If the Constitutional Court had responded to the incident, for example, through removing the phrase in contention, the issue would not have continued and required the formation of an ethics council,” Palguna emphasized.

The council stressed that the suspected justice’s right to propose a revision had not justified the action. “In this case, the suspected justice has been proven to have committed a violation of the principle of integrity in the Sapta Karsa Utama,” Palguna added.

Also read: MKMK Starts Investigation into Constitutional Justices

MKMK’s Recommendations

In its ruling, the MKMK also gave recommendations, such as the need for an SOP on any change to the final copy of the decision to read out at a ruling hearing and on the preparation of transcripts of both ruling hearings and examination hearings.

“A permanent ethics council should be formed immediately, taking into account and thoroughly considering the credibility and integrity of the appointed figures, who can build public trust in the Constitutional Court,” Palguna explained.

The council recommended that the constitutional justices Decision No. 103/PUU-XX/2022 for the sake of legal certainty by “returning the phrase ‘therefore’ to the decision in question.”

Its last recommendation is that the chief registrar be kept under supervision by authorized officials following statutory regulations, taking into account appropriateness and proportionality.

The council’s ruling hearing was the final phase of the investigation into discrepancy between Decision No. 103/PUU-XX/2022 and the transcript uploaded onto the Court’s website versus that read out at the public hearing on November 23, 2022, i.e. the last paragraph of page 51 of the decision, where the phrase “therefore” was changed to “in the future.”

On the finding, the MKMK had held plenary preliminary hearing, follow-up hearings, and meetings to hear testimonies, including from the nine constitutional justices, five experts. These closed hearings and meetings took place on February 9 to March 14.

Author       : Lulu Anjarsari P.
Editor        : Lulu Anjarsari P.
Translator  : Yuniar Widiastuti (NL)

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.

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