Constitutional Justice Daniel Yusmic P. Foekh reading out the Court’s legal considerations at the ruling hearing for the judicial review of Law No. 7 of 2020 on the Constitutional Court, Thursday (3/30/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) declared the judicial review petition of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court inadmissible. The petition was filed by advocate Zico Leonard Djagardo Simanjuntak. The ruling hearing for Decision No. 17/PUU-XXI/2023 was presided over by Chief Justice Anwar Usman and the other eight constitutional justices on Thursday, March 30, 2023 in the plenary courtroom.  

“[The Court] adjudicated; declare the Petitioner’s petition inadmissible,” said Chief Justice Anwar Usman reading out the verdict.

In its legal considerations read out by Constitutional Justice Daniel Yusmic P. Foekh, the Court asserted that the Petitioner had intended to state that dismissal “by the nominating institution due to annulling or revoking legal products made by the nominating institution” should not have been a ground for honorable discharge as regulated in Article 23 paragraph (1) of the Constitutional Court Law.

The Court believes that Article 23 specifically regulates the dismissal of constitutional justices while Article 23 paragraph (1) regulates the grounds for honorable discharge and paragraph and (2) for dishonorable discharge. “If the Petitioner’s reasoning were followed, Article 23 paragraph (1) of the Constitutional Court Law would have five reasons for the honorable discharge of constitutional justices (which is formulated in letters a, b, c, d, and e) and the reason (that the Petitioner requested) that is not categorized as honorable discharge. This means that Article 23 paragraph (1) of the Constitutional Court Law would contain two conflicting categories, i.e. honorable discharge, which the Petitioner deemed constitutional, and dishonorable discharge, which he deemed unconstitutional,” Justice Foekh explained.

Moreover, the combination of two such categories could potentially lead to contradiction, causing the article no longer comprehensible, not to mention applicable, and thus disadvantageous for the Petitioner and the community since the regulation on honorable discharge of constitutional justices can no longer be applied.

Such addition of meaning, Justice Foekh said, would only be legally possible on norms that are close in context with the new meaning and only if it would not make the entire meaning obscure. The Court believes that the new meaning that the Petitioner proposed as a condition to the unconstitutionality of Article 23 paragraph (1) of the Constitutional Court Law was not close in context and would even make its entire meaning obscure. In other words, the article regulates grounds for honorable discharge but the Petitioner’s petitum contain a prohibiting norm, thus causing contradiction (contradictio in terminis).

The Court saw the Petitioner’s petitum as a two-stage interpretation: first, giving an additional meaning to Article 23 paragraph (1) as grounds for dismissal; second, declaring the added meaning unconstitutional. The Court believes it would hinder the understanding of the article. Such formulation would only be legally comprehensible if it were separated from the article, such as in another paragraph or another article, which is a positive legislator act that the Court cannot implement.

“Whereas based on the legal considerations as elaborated in the above paragraph, the Court believes that the Petitioner’s petition was obscure and thus cannot be examined and/or considered further,” Justice Foekh said.

Also read:

Constitutional Justice’s Dismissal and Change to Constitutional Court Decision Questioned

Advocate Affirms Provisional Petition in Case against Constitutional Court Law

At the preliminary hearing on Thursday, February 16, Petitioner Zico Leonard Djagardo Simanjuntak said that as a litigant, he would need 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. 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.

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. Meanwhile, in the petitum on the subject matter, 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.”

Author       : Utami Argawati
Editor        : Nur R.
PR            : Tiara Agustina
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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