Complainants Affirm Legal Principles behind Allegation of Ethics Violations by Justices

The Constitutional Court Ethics Council’s (MKMK) hearing to examine 10 reports of alleged violations of code of ethics and conduct by constitutional justices, Thursday (11/2/2023). Photo by MKRI/Bayu.

JAKARTA (MKRI) — The Complainants of alleged violations of the code of ethics and conduct by constitutional justices attended a hearing held by the Constitutional Court Ethics Council (Majelis Kehormatan Mahkamah Konstitusi or MKMK) on Thursday, November 2, 2023. They testified before Jimly Asshiddiqie (MKMK chair), along with Wahiduddin Adams (MKMK secretary), and Bintan Saragih (MKMK member).

In the first session, the Complainants were Madani Youth Association for report No. 7/MKMK/L/ARLTP/10/2023; Indonesian Legal Aid and Human Rights Association (PBHI) for report No. 8/MKMK/L/ARLTP/10/2023; Tim Advokasi Peduli Hukum Indonesia (TAPHI) for report No. 9/MKMK/L/ARLTP/10/2023; the student executive body of Nahdlatul Ulama University Indonesia (BEM Unusia) for report No. 19/MKMK/L/ARLTP/10/2023; and the Alamsyah Hanafiah advocate office for report No. 20/MKMK/L/ARLTP/10/2023.

Administrative Requirements

The Indonesian Legal Aid and Human Rights Association (PBHI) reported Chief Justice Anwar Usman, Justice Manahan M.P. Sitompul, Justice Enny Nurbaningsih, Justice Daniel Yusmic P. Foekh, and Justice M. Guntur Hamzah. PBHI’s legal counsel Julius Ibrani explained that the report was an effort to protect the Constitutional Court, including the justices. He explained that the Reported (Chief Anwar Usman) had discussed the case before it was decided and disclosed to the public, resulting in a negative public attitude towards the case and the Constitutional court’s decision. There was allegation of conflict of interest that could have impacted the examination of case No. 90/PUU-XXI/2023. He also mentioned that said case that had been withdrawn at an unusual time.

“As far as we know, the Court does not do correspondence at the weekend or on national holidays. Moreover, no decision was made on whether the withdrawal was indeed granted. This is a violation of administrative requirements that had an impact on the examination. We refer to [the Constitutional Court Regulation/PMK] No. 2 of 2021. This has created quite a chaotic perception,” explained Julius, who attended the hearing online from Malaysia.

No Equality

Meanwhile, Madani Youth Association reported Chief Justice Anwar Usman and Constitutional Justices M. Guntur Hamzah and Manahan M.P. Sitompul. Legal counsel Furqan Jurdi stated that the Complainant felt their constitutional right to fair legal guarantee and equal opportunity in government had been violated. The constitutional justices, who are state officials, the three Reported parties allegedly distorted Decision No. 90/PUU-XXI/2023 in part with the addition of the phrase “has occupied/is occupying an office elected through a general election, including the election of heads of regions.”

“Besides not within the Court’s jurisdiction, an addition to the phrase was not agreed upon by the majority of the justices. Previously, in cases No. 29, 51, 55/PUU-XXI/2023, it was agreed that the [issue] in the article was an open legal policy. However, [petitions] No. 90, 91/PUU-XXI/2023 were granted by only three justices, i.e. the Reported Parties I, II, and III, while other justices had concurring opinions and four other justices had dissenting opinions. This fact shows that [the examination of those cases] does not reflect equality and resulted in very odd decisions,” said Furqan.

Meanwhile, Tim Advokasi Peduli Hukum Indonesia (TAPHI) through legal counsel Johan Imanuel, BEM of Unusia through legal counsels Tegar Afriansyah dan Isfazia Ulhaq, and Alamsyah Hanafiah reported alleged ethics violations by Chief Justice Anwar Usman. TAPHI’s legal counsel said the Reported had allegedly violated code of ethics through Decision No. 90/PUU-XXI/2023, especially the addition of words to Article 169 letter q of the Election Law, which should only have been within the jurisdiction of the House and the Government.

Public Comment

In the second session, the MKMK summoned the following Complainants: People’s Advocacy for Nusantara (ARUN) for report No. 4/MKMK/L/ARLTP/10/2023 and Ahmad Fatoni for report No. 5/MKMK/L/ARLTP/10/2023 against Deputy Chief Justice Saldi Isra; Cipta Karya Keadilan legal aid institute for report No. 6/MKMK/L/ARLTP/10/2023 against Constitutional Justice Arief Hidayat and Deputy Chief Justice of the Constitutional Court Saldi Isra; Advokat Pengawal Konstitusi for report No. 6/MKMK/L/ARLTP/10/2023, Advokat Pengawal Konstitusi for report No. 15/MKMK/L/ARLTP/10/2023, and LISAN Advocates for report No. 17/MKMK/L/ARLTP/10/2023 against Constitutional Justice Arief Hidayat.

Through legal counsel R. Elang Maulana, Advokat Pengawal Konstitusi alleged that the Reported had made extrajudicial comments while delivering a dissenting opinion for Decision No. 90/PUU-XXI/2023.  “The Reported have committed a violation on confidentiality, relating to information that should not be disclosed. The alleged violation is giving a public comment on a case that has been decided,” Elang explained.

Exception of Information Disclosure

Ahmad Fatoni mentioned in his report that the dynamics in the justice deliberation meetings (RPH) are the Court’s privacy. Based on Article 17 of Law No. 14 of 2008 on Public Information Openness, such matters are exempted from disclosure and should not be disclosed outside the Constitutional Court.

“The Reported have made a mistake by wrongly expressed their concerns in the dissenting opinions, which was also read during the decision pronouncement, which is open to the public. They should have been obliged to keep the information and dynamics of the justice deliberation meetings confidential,” said Fatoni.

In line with this exception of public disclosure, ARUN’s legal counsel Bob Hasan also argued that the expressions in the dissenting opinions for case No. 90/PUU-XXI/2023 had disclosed confidential information that should not have been expressed at the public hearing. “It constituted disclosing confidential information. A dissenting opinion is part of legal reasoning, but [for that particular case] it was more akin to venting. Therefore, we leave it to the MKMK [to decide this issue] according to statutory provisions. We don’t want the Court to be devastated by this incident,” he emphasized in the second session of the Court’s hearing, which started at 13:30 WIB in the panel courtroom on the 4th floor of the Court’s second building.

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 

Complainants Reveal Reasons and Evidence of Alleged Ethics Violations by Justices 

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.

Thursday, November 02, 2023 | 15:30 WIB 196