The Petitioners’ legal counsel Fredrik Jacob Pinakunary conveying the subject matter of a judicial review petition against Law No. 24 of 2003 on the Constitutional Court, Tuesday (12/5/2023). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) held a material judicial review hearing of Law No. 24 of 2003 on the Constitutional Court. The petition was submitted in the aftermath of the Court’s Decision No. 90/PUU-XXI/2023 in which it interpreted Article 169 letter q of the Election Law on the minimum age for presidential and vice-presidential candidates.

The Petitioners of case No. 151/PUU-XXI/2023 are fisherman Sugeng Nugroho, entrepreneur Teguh Prihandoko, and graduate law student Azeem Marhendra (Petitioners I-III). They gave power of attorney to advocates of Tim Advokasi Pejuang Penegak Konstitusi (Advocacy Team for the Constitution or Petisi).

“The petition comes from Decision No. 90/PUU-XXI/2023 that became a much-discussed topic so, as citizens, the Petitioners made a decision and took action by filing the petition,” said legal counsel Fedrik Jacob Pinakunary.

In their petitum, the Petitioners considered Article 10 paragraph (1) and Article 28 paragraph (1) of the Constitutional Court Law contrary to Article 28D paragraph (1) of the 1945 Constitution. They believe they have an interest to monitor the hearing process and deserve legal fair decisions that are free from problems that threaten the independence, impartiality, and integrity of constitutional justices.

The Article 10 paragraph (1) of the Constitutional Court Law reads, “The Constitutional Court holds jurisdiction of first and final instance, whose decisions shall be final: a. To review a law against the 1945 Constitution of the Republic of Indonesia; b. To resolve disputes of jurisdiction between state institutions whose competencies are defined by the 1945 Constitution of the Republic of Indonesia; c. To pass decisions on the dissolution of political parties; and d. To resolve disputes involving the results of the general elections.”

Article 28 paragraph (1) of the Constitutional Court Law reads, “The Constitutional Court shall review, adjudicate, and render a decision in a plenary hearing of the Constitutional Court attended by 9 (nine) constitutional justices, except under special circumstances with 7 (seven) constitutional justices, chaired by the chief justice of the Constitutional Court, may be in attendance.”

The Petitioners argued that the two provisions are ambiguous, multi-interpretive, and have proven to make the Constitutional Court not impartial, neutral, clearly taking sides when handing down Decision No. 90/PUU-XXI/2023. This is related to the participation of Constitutional Justice Anwar Usman, who served as chief justice at the time, in examining, adjudicating, and deciding cases on the minimum age limit for presidential and vice-presidential candidates.

The Petitioners said he had a conflict of interest because he was the uncle of President Joko Widodo’s eldest son, Gibran Rakabuming Raka. After the decision, Gibran started his bid for vice president alongside presidential candidate Prabowo Subianto.

The Petitioners asserted that if it can be proven that the decision was a result of ethics violations, there had been a formal flaw in the decision-making process. If left legally binding, generally applicable (erga omnes), and executed, the Constitutional Court would be perpetuating practices that are not in line with the Constitution.

In their petitum, the Petitioners request the Court to declare the Article 10 paragraph (1) of the Constitutional Court Law unconstitutional and not legally binding if not interpreted as “as long as there is no violations of ethics and/or decency determined or decided by the Ethics Council of the Constitutional Court or any institution authorized by laws and regulations.”

In addition, they request the Court to declare the Article 28 paragraph (1) of the Constitutional Court Law unconstitutional and not legally binding if not interpreted as “and the constitutional justices who hear and decide in the plenary hearing as intended absolutely do not have any conflict of interest, including potential conflicts of interest with the case being adjudicated, heard, and decided.”

They also request the Court to declare Decision No. 90/PUU-XXI/2023 invalid, not legally binding, and non-executable.

Justices’ Advice

In response, Constitutional Justice Wahiduddin Adams asked the Petitioners to read Decision No. 141/PUU-XXI/2023 on Article 169 letter q of the Election Law as interpreted in Decision No. 90/PUU-XXI/2023. He argued that the arguments in the a quo petition have been answered in Decision No. 141/PUU-XXI/2023.

“The things argued in this petition, we have responded in [Decision] 141/PUU-XXI/2023,” he said.

Meanwhile, Constitutional Justice M. Guntur Hamzah asked the Petitioners to consider or re-summarize the petitum. He reminded them that this petition challenges a norm, not about a concrete case, so if it is granted, the norm might fall apart.

“If the petition is granted, will this not create a problem, because this norm applies to all, erga omnes. So, please find a formula that if this is granted then it applies erga omnes, there is no problem,” he said.

Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh (panel chair) said that Article 10 paragraph (1) of the Constitutional Court Law is an affirmation of Article 24C paragraph (1) of the 1945 Constitution. Thus, if the Constitutional Court amends Article 10 paragraph (1) of the Constitutional Court Law, it would indirectly be amending the 1945 Constitution.

“So review it again, because this article is exactly the same as Article 24C paragraph (1) on to the Constitutional Court’s authority,” he said.

Justice Foekh informed the Petitioners that they should submit the revised petition no later than December 19, 2023 at 09:00 WIB. The next hearing will be determined by the Court and the Petitioners will be informed.

Author       : Mimi Kartika
Editor        : Lulu Anjarsari P.
PR            : M. Halim
Translator  : Nyi Mas Laras Nur Inten Kemalasari/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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