Chief Justice Anwar Usman reading out the verdict at the judicial review hearing of Law No. 19 of 2019 on the Corruption Eradication Commission, Thursday (5/25/2023). Photo by Humas MK/Ifa.
JAKARTA (MKRI) — The Constitutional Court (MK) granted the entire judicial review petition of Law No. 19 of 2019 on the Second Amendment to Law No. 30 of 2002 on the Corruption Eradication Commission (KPK Law) filed by KPK deputy chairman Nurul Ghufron. The ruling hearing for Decision No. 112/PUU-XX/2022 took place on Thursday, May 25, 2023.
“[The Court] adjudicated, grants the Petitioner’s petition in its entirety,” said Chief Justice Anwar Usman reading out the verdict alongside the other eight constitutional justices.
In the verdict, the Court also declared in Article 29 letter e of the KPK Law, which reads, “Is at least 50 (fifty) years old and at most 65 (sixty-five) years old during the year of selection,” unconstitutional and not legally binding conditionally if not interpreted as “Is at least 50 (fifty) years old or have experience as a KPK leader, and at most 65 (sixty-five) years old during the year of selection.”
It also declared Article 34 of the KPK Law, previously read, “The Commissioners of the KPK shall hold office for a term of 4 (four) years and may be re-appointed for one term,” unconstitutional and not legally binding conditionally if not interpreted as “The Commissioners of the KPK shall hold office for a term of 5 (five) years and may be re-appointed for one term.”
The Petitioner is the KPK deputy chairman who was appointed after meeting qualifications based on Law No. 30 of 2002 (first KPK Law). However, the enactment of Article 29 letter (e) of the KPK Law had reduced the Petitioner’s constitutional rights. It originally required that a KPK leader be at least 40 years old and 65 years old at most. After the amendment, the age limit is at least 50 years and 65 years at most, thus restricting the Petitioner, who is not yet 50 years old, from seeking appointment for the second term. This, he argued, was contradictory to Article 34 of Law No. 30 of 2002.
Also read:
Nurul Ghufron Challenges Provision on Age Limit of KPK Leaders
Nurul Ghufron Revises Petition against Provision on Age Limit of KPK Leaders
Age Requirement for KPK Leaders an Administrative Code
Govt: Age Requirement for KPK Leaders Necessary
Expert: Tenure of KPK Commissioners against Legal Ideal
Provisions on Age Limit Needs Rational Reasons
Expert: Change of KPK Leaders’ Age Limit Against Legal Certainty
In its legal considerations, delivered by Constitutional Justice M. Guntur Hamzah, the Court asserted that the four-year tenure of KPK leaders was discriminatory if compared to other commissions and independent institutions with constitutional importance. In addition, based on the principles of benefit and efficiency, a five-year tenure is much more beneficial and efficient. Regardless of the fact that KPK leaders are still in office, the Court also used this reason to rule whether interim KPK leaders were necessary in Decision No. 5/PUU-IX/2011.
Arrangement of KPK Leaders’ Tenure
On the other hand, Justice Guntur continued, although the regulation of KPK leaders’ tenure is the legislatures’ legal policy, the principle of open legal policy can be overridden if it is contrary to morality, rationality, and causes intolerable injustice, is an abuse of authority (detournement de pouvoir), or is carried out arbitrarily (willekeur) and exceeds the authority of the legislatures, and/or is contrary to the 1945 Constitution. The Court stated this in its considerations of and asserted that the a quo case cannot be left to the hands of the legislatures. Moreover, in the a quo case it is apparent that there was injustice where equal treatment should apply in accordance with the principle of justice.
The different tenure of KPK leaders from that of leaders/members of commissions or independent institutions, especially those of constitutional importance, has violated the principles of justice, rationality, reasonable reasoning, and is discriminatory, thus is contrary to Article 280 paragraph (1) of the 1945 Constitution. Therefore, according to the Court, the KPK leaders’ tenure should be made equal with that of independent commissions and institutions included that have constitutional importance, i.e. five years so as to fulfill the principles of justice and equality.
“Taking into account the tenure of the current KPK leaders, which will end on December 20, 2023 or approximately in six months, then without intending to judge the concrete case, it is important for the Court to immediately decide the a quo case to provide legal certainty and equitable benefits,” Justice Guntur stressed.
KPK Leaders Recruitment
Apart from that, in other legal considerations delivered by Constitutional Justice Arief Hidayat, the Court emphasized that the KPK, which was established with the aim of increasing the effectiveness and results of efforts to eradicate criminal acts of corruption, needs to have its independence be guaranteed from interference while carrying out its duties and authorities. Therefore, in an effort to protect the independence of the KPK as an institution authorized to eradicate extraordinary crimes, it is necessary to guarantee fair treatment of the KPK, one of which is related to the tenure of KPK leaders as per Article 34 of Law No. 30 of 2002.
The tenure of KPK leaders following Article 34 of Law No. 30 of 2002—four years with a one-time reelection—causing the president and the House of Representatives (DPR) to be able to evaluate the KPK twice in one period or five years in casu in 2019-2024, especially in recruiting KPK leaders. In this case, the KPK had different treatment than that for other independent state institutions that have constitutional importance, which have a five-year tenure and are only evaluated once during the president and the House’s tenure.
The Court asserted that the two-time evaluation could not only threaten the commission’s independence since the president and the House could recruit KPK leaders twice during their tenure, but also create a psychological burden and conflict of interest for KPK leaders who seek reelection.
As such, based on the aforementioned legal considerations, the Petitioner’s argument that Article 34 of Law No. 30 of 2002 was unconstitutional and not legally binding if interpreted that the KPK leaders who are recruited simultaneously or interim leaders who are appointed to replace those discharged while in service for five years and can be reelected once was legally grounded.
Meanwhile, Justice Arief Hidayat added, the reformulation of this tenure also impacted the tenure of the KPK supervisory board. Article 37A of Law No. 19 of 2019 reads, “Members of the Supervisory Board as referred to in paragraph (2) shall hold office for 4 (four) years and can be reelected for the same position only once.” In order to maintain consistency and harmony in the arrangement of the KPK leaders’ tenure, according to logical reasoning it shall apply for the supervisory board.
Dissenting and Concurring Opinions
Deputy Chief Justice Saldi Isra had a concurring opinion on Article 29 letter (e) of Law No. 19 of 2019 while four justices—Constitutional Justices Suhartoyo, Wahiduddin Adams, Saldi Isra, and Enny Nurbaningsih—had dissenting opinion on Article 34 of Law No. 30 of 2002.
“The determination of minimum and maximum age requirements for public officials is the sole discretion of the legislatures, unless the policy choice clearly violates morality, rationality, and intolerable injustice,” Justice Saldi said of his concurring opinion.
Meanwhile, Constitutional Justice Enny Nurbaningsih asserted that the tenure of several commissions or institutions are not uniform—four years for KPK leaders; four years for members of the Information Commission; five years for KPPU (Commission for the Supervision of Business Competition) members; five years for members of Komnas HAM (National Commission on Human Rights); five years for Judicial Commission members; and three years for the chairperson, vice chairperson, and members of the central and regional Indonesian Broadcasting Commission (KPI).
“The non-uniformity of the tenures of state commissions in Indonesia cannot be interpreted to have caused inequality, injustice, legal uncertainty, and discrimination, as well as public doubt about the position and independence of the KPK in the Indonesian constitutional structure, as argued by the Petitioner,” Justice Enny explained.
Author : Utami Argawati
Editor : Nur R.
PR : Raisa Ayudhita
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.
Thursday, May 25, 2023 | 19:30 WIB 238