Petitioner Rega Felix delivering the subject matter of the petition at the preliminary hearing of the judicial review of the Constitutional Court Law, Thursday (12/7/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Rega Felix, and advocate, challenges Law No. 7 of 2020 on the Constitutional Court for two cases: No. 152/PUU-XXI/2023 and 153/PUU-XXI/2023. In the two petitions, he questions Article 15 paragraph (2) letter d, Article 23 paragraph (1) letter d, and Article 54. The hearing for both cases took place on Thursday, December 7, 2023 in the plenary courtroom.
In case No.153/PUU-XXI/2023, the Petitioner argued that he has constitutional rights and equal opportunity to become a justice as stipulated in Article 27 paragraph (3), Article 28D paragraphs (1) and (3), and Article 24C paragraph (5) of the 1945 Constitution because he is an alumnus of a Law Faculty, especially constitutional law, who works as an advocate, thus meeting the requirements for a constitutional justice. However, because the minimum age requirement is often changed to be higher without clear rationale, currently 55 years, it has caused him constitutional harm.
“Whereas the Constitutional Court Law has regulated the minimum degree of maturity and experiences, namely a doctoral degree and a minimum experience of 15 years of work, but why did the age limit of 55 years appear without any rationality? The hope is that there is an alternative norm that allows [me] to become a constitutional justice when [I have] fulfilled the minimum degree of maturity and experiences,” the Petitioner said.
Furthermore, he said, in the past, a constitutional justice was inaugurated under the age of 55. The legislatures must be able to explain why. If the argument is that statesmanship does not appear until someone is 55 years old, there must be proof of constitutional justices under 55 years old who are not statesmen. As a result, constitutional justices who were still 47 and 42 years old must be regarded as unfit statesmen who lacked integrity.
“If the fact is that constitutional justices aged 47 and 42 years have produced landmark decisions that become precedents, it becomes a moral issue why the previous generation is treated differently than the current generation, which led to the legislatures believing that one can only be a statesman at the age of 55. The legislatures must demonstrate that, as of Law No. 7 of 2020, constitutional justices with integrity as statesmen cannot be only 42. If they believed this, it would cause major moral concerns. If they are unable to explain this, there is legal justification to declare that the policy of the minimum age of constitutional justice at 55 is unconstitutional,” he stressed.
After proving this, the Petitioner said, he intended to propose an alternative norm by referring to Article 24C paragraph (5) of the 1945 Constitution, which requires constitutional justices to be statesmen who understand the Constitution and constitutional law. This requirement is not found in any other position, thus the Court would effectively interpret Article 24C paragraph (5) of the 1945 Constitution.
“It can be said that Article 15 paragraph (2) letter d of the Constitutional Court Law has violated intolerable morality and rationality. Therefore, the Court can provide alternative norm in line with the petitum, which will be read out later. In addition, if this is granted, it will have an impact on the difference of the tenures of constitutional justices appointed at the age of 55 and under 55. Therefore, the Petitioner also request that Article 23 paragraph (1) letter d of the Constitutional Court Law, which had been previously abolished, be reinstated as ‘having ended their term of office after carrying out the entire 15 (fifteen) year term of office,”’ the Petitioner stressed.
Inquiry Right Challenged
For the case No. 152/PUU-XXI/2023, the Petitioner challenges Article 54 of the Constitutional Court Law, which reads, “The Constitutional Court may request the People’s Consultative Assembly (MPR), the House of Representatives (DPR), the Regional Representatives Council (DPD), and/or the President for information and/or minutes of meetings pertaining to the petitions being examined.” He revealed that he often litigates at the Court but is not sure of the meaning of the word “may” in Article 54 of the Constitutional Court Law because often the Court overrides it simply because the petition is considered clear. He would like an explanation from the legislatures on the case because they had not responded to his inquiry. The absence of clear parameters in interpreting the word “may” in Article 54 of the Constitutional Court Law has caused him a constitutional loss.
“In fact, this petition is also related to [my] actual case, it’s just that [I am] wondering if [I] become a constitutional justice what exactly are the standard parameters for Article 54 of the Constitutional Court Law to apply. So far there is no standard rule, and it is also impossible to just guess. That’s why [I am] trying to formulate it in this petition,” the Petitioner explained at the hearing chaired by Constitutional Justice Enny Nurbaningsih.
He also explained that he had inquired the legislatures, in this case the House, but had received no response. The House, he argued, is the people’s representative who should answer complaints or problems faced by its people specifically relating to the administration of the state. As a result of the unclear meaning of the word “may” in Article 54 of the Constitutional Court Law, the Petitioner’s case could potentially be decided without a fair legal process, thus would continue to hang while the legislatures be relieved of their responsibility to provide information. Thus, he argued, within logical reasoning, he could potentially have a constitutional loss.
“Something is possible because there is an element of obligation and choice. For example, [I] can become a burger vendor because [I] have an obligation to support [myself], but being a burger vendor is not an obligation because there are options other than that, such as becoming a Bank Indonesia employee or a constitutional justice. However, [I am] obliged to become a burger vendor when there are no other options and if otherwise [I] would not be able to carry out the obligation to support [myself]. With this example, there is a condition where a norm can become mandatory when there is no other option,” the Petitioner explained.
Furthermore, the Petitioner emphasized that Article 54 of the Constitutional Court Law can be read as non-mandatory in the absence of established limits. This is unquestionably in violation of the idea of a fair and open due process of law, as required in Article 28D paragraph (1) of the 1945 Constitution.
“Without a clear parameter of the word ‘may,’ this may happen. In order to protect citizens in obtaining a fair and open due process of law, clear parameters are needed in the implementation of Article 54 of the Constitutional Court Law. Moreover, the dynamics of our state administration show that the testimony of the House and the President, which leaves discretion to the Court, has implications in the expansion of the Constitutional Court’s authority. This shows that the House’s and the President’s statements very substantially influence the Court’s decisions. With clear legal parameters, [I] no longer need to beg the Constitutional Court to implement Article 54 of the Constitutional Court Law,” the Petitioner said.
Justices’ Advice
Responding to Case No. 152/PUU-XXI/2023, Constitutional Justice M. Guntur Hamzah asked the Petitioner to present data related to his previous case, which had proceeded to a plenary hearing but the Petitioner believes had been decided without a fair due process of law.
“It is [stated] in your petition. If you have data, just mention which cases where the House should be heard, while [in yours they were not], which you believe violated the principle of fair due process of law,” Justice Guntur suggested.
The Petitioner intended that the word “may” be mandatory but did not relate it to Law No. 30 of 2014 on Government Administration, Justice Guntur said.
“This is one of the indicators of discretion because of the word ‘may’ in an article. So it can imply yes or no ‘in this context. The Court can listen, or it can be mandatory, as you stated, but it can also be no, and you then set criteria. In Law No. 30 of 2014, the word ‘may’ refers to a discretion, in this case by the Constitutional Court,” he explained.
Meanwhile, Constitutional Justice Daniel Yusmic P. Foekh asked the Petitioner to strengthen the posita in case No.153/PUU-XXI/2023 and elaborate the definition of a statesman.
“Try to strengthen the posita related to the statesman. Does [the word] statesman exist in other countries’ constitutions related to the requirements to become a judge or is it the only one? So the Petitioner wants age not be associated with statesmanship. Can 55 years old be considered more statesmanlike if, for example, the starting age is 42 years old? What is the measure of statesmanship and how is it in other countries?” he asked.
At the end of the hearing, the panel justices gave the Petitioner 14 workdays to revise the petition and to submit it to the Registrar’s Office no later than Wednesday, December 20, 2023 at 09:00 WIB.
Author : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Tiara Agustina
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.
Thursday, December 07, 2023 | 19:36 WIB 213