Complainants Reveal Reasons and Evidence of Alleged Ethics Violations by Justices

Another hearing by the MKMK to examine reports of alleged violations of codes of ethics and conduct by constitutional justices on Wednesday (11/1/2023). Photo by MKRI/Bayu

JAKARTA (MKRI) — The Constitutional Court Ethics Council (Majelis Kehormatan Mahkamah Konstitusi or MKMK) held another hearing to examine reports of alleged violations of codes of ethics and conduct by constitutional justices on Wednesday, November 1, 2023, in the panel courtroom on the 4th floor of the Court’s second building.

This report examination hearing was divided into two sessions. The first was held at 09:00 WIB; the second session took place at 13:30 WIB. In the first session, the MKMK summoned the Complainants: Nusantara Advocates Movement (Perekat Nusantara) for the Report No. 2/MKMK/L/ARLTP/10/2023 and the Independent Election Monitoring Committee (KIPP) in the Report No. 16/MKMK/L/ARLTP/10/2023. They reported Chief Justice Anwar Usman. The MKMK also summoned Tumpak Nainggolan for the Report No. 18/MKMK/L/ARLTP/10/2023 against all nine constitutional justices.

Perekat Nusantara’s legal counsel Petrus Selestinus stated that his client had submitted the revisions to their report which had been conveyed at the clarification meeting on Thursday, October 26. He further conveyed the legal reasons for the report of alleged violation of code of ethics by Chief Justice Anwar Usman. He said that in the judicial review case of Article 169 letter q of the Election Law, the chief justice had been the brother-in-law of the President of the Republic of Indonesia while the Petitioner of Case No. 90/PUU-XXI/2023 had attempted to ensure that Gibran Rakabuming Raka, the chief justice’s nephew, can participate in the presidential election.

“In this regard, the Complainant believes that the Reported has violated the principles of independence or impartiality and integrity in the code of ethics and conduct for constitutional justices. Therefore, Perekat Nusantara requests the MKMK to decide to impose severe sanctions of dishonorable dismissal. This is because the Constitutional Court has violated the Constitution and, as an actor of judicial power, is no longer free and independent. Therefore, we trust that the MKMK will grant Perekat Nusantara’s petition in order to return public trust to the Constitutional Court,” he said.

Intervention against Election Organizer

The Independent Election Monitoring Committee (KIPP) through Kaka Suminta asserted that the Complainant has interests and moral obligations related to the election. He alleged that in Case No. 90/PUU-XXI/2023, there had been intervention against election organizers and the electoral process. This is evident from the chaos within the General Elections Commission’s (KPU) implementation of KPU Regulation (PKPU) No. 19 of 2023 on the nomination of participants in the presidential election. Although the norms have not yet changed, candidates who violate the PKPU have been registered.

“In this case, we have legal standing and in Cases No. 29, 51, 55/PUU-XXI/2023 we represented independent institutions and were a Relevant Party," said Suminta before Jimly Asshiddiqie (MKMK chair), Justice Wahiduddin Adams, and Bintan Saragih.

Posita-Petitum Contradict

Tumpak Nainggolan, who conveyed his report online from Cianjur, West Java Province, argued for his legal standing with concern over Decision No. 90/PUU-XXI/2023. He said that according to Law No. 10 of 2016 on Regional Elections (Pilkada Law), there is no mention of “regional head election” or “regional heads.” Moreover, he said, based on Law No. 7 of 2017 on General Elections, there is no mention of “regional heads” for the election of governor/regent/mayor. He alleged the legal reasoning for Decision No. 90/PUU-XXI/2023 as a legal analysis only by the chief justice. He alleged that the posita and petitum of that particular petition, which was granted in part, were obscure.

“Therefore, there is no clause that explicitly states that the consideration in question is unconstitutional. It only mentions ‘conditionally unconstitutional.’ What does this refer to? I believe the [petition’s] petitum and posita contradicted one another. This is related to the Court’s chief justice’s integrity in making a hasty decision,” Nainggolan said.

Conflict of Interest

In the second session, the MKMK heard the testimonies of the Advocacy Team for Elections (TAPP) and  Gugum Ridho Putra et al. for Report No. 3/MKMK/L/ARLTP/10/2023; the legal aid institute Barisan Relawan Jalan Perubahan, Roynal Christian Pasaribu, and R. Jourda for Report No. 10/MKMK/L/ARLTP/10/2023 against Chief Justice Anwar Usman; and Marthen Y. Siwabessy, Anggie Tanjung, and Ruth Yosephine Tobing for Report No. 12/MKMK/L/ARLTP/10/2023 against Chief Justice Anwar Usman and Constitutional Justices Enny Nurbaningsih, M. Guntur Hamzah, Daniel Yusmic P. Foekh, and Manahan M.P. Sitompul.

The legal counsel of the Advocacy Team for Elections Gugum Ridho Putra stated his client had affirmed the evidence of two alleged violations by the Reported (Chief Justice Anwar Usman). First, his false statement regarding the reason for his absence during the justice deliberation meeting (RPH) for cases No. 29, 51, and 55/PUU-XXI/2023, whose petitions were not granted, and in cases No. 90 and 91/PUU-XXI/2023, whose petitions were partially granted. His involvement in deciding the last two cases reflects his personal interests as there was conflict of interest. Gugum added that the allegation of the chief justice’s false statements was contained in the dissenting opinions of Deputy Chief Justice Saldi Isra and Constitutional Justice Arief Hidayat.

“[The chief justice] once [said that his absence] was to avoid conflicts of interest. However, he later cited his health being the reason. This clearly violated the code of ethics of constitutional justices and violated the principle of integrity. His involvement in examining cases where there was conflict of interest [such as] case 90 where he is an uncle of [prospective vice-presidential candidate] Gibran [Rakabuming Raka] shows an obvious conflict of interest. The Complainant request that a severe ethics sanction of dishonorable dismissal be imposed,” Gugum said.

Prohibition against Public Comments

In addition, legal counsel of the legal aid institute (LBH) Barisan Relawan Jalan Perubahan Roynal Christian Pasaribu alleged that the Reported had violated code of ethics in the Constitutional Court Regulation (PMK) No. 09/PMK/2006 on the implementation of the declaration of code of ethics and conduct for constitutional justices, where constitutional justices are prohibited from making public comments on cases that are being examined, under examination, or have been decided, either by the justices in question or other constitutional justices, except in specific circumstances and only for the purpose of clarifying the decisions.

Pasaribu also stated that constitutional justices, except when resulting in the quorum not being met, must recuse themselves from examining any case if they are unable or deemed unable to be impartial due to certain reasons, including if they or their family members have a direct interest in the decision. In the Complainant’s opinion, the Reported had committed two violations based on this. The Complainant had included transcripts showing the Reported’s partiality.

“The justice deliberation meeting for cases No. 29, 51, 55, 90, 91 was on September 19, but for cases No. 90 and 91 it was at the end of October. In addition, the Reported also made comments while the cases were being examined by the Court. This is a clear violation of the prohibition in the existing norm, where justices are prohibited from making public comments on cases that will be decided,” Pasaribu explained.

Attempt to Add Phrases

The legal counsel of Advokat Pengawal Konstitusi Marthen Y. Siwabessy said that the five constitutional justices his client had reported had allegedly tried to add phrases to Article 169 letter q of the Election Law. “Although the [opinion] of Justices Enny Nurbaningsih and Daniel Yusmic P. Foekh [favored] the granting [of the petition], there were still additional phrases,” he said

He also claimed that the five constitutional justices had violated their oath of office as justices, where they had pledged to uphold the Constitution. In reality though, he asserted, they had violated the Constitution, both together and personally. This, the he alleged, had resulted in Decision No. 90/PUU-XXI/2023.

Also read:

Constitutional Court Ethics Council Members Inaugurated

MKMK Holds Meeting to Clarify Reports of Alleged Ethics Violations by Justices  

Ethics Council Hears Complainants on Justices’ Alleged Violations 

Author       : Sri Pujianti
Editor        : Nur R.
Translator  : Najwa Afifah Lukman/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.

Wednesday, November 01, 2023 | 18:18 WIB 240