Constitutional Justice Daniel Yusmic P. Foekh reading out Decision No. 131/PUU-XX/2023, Thursday (12/21/2023). Photo by MKRI.
JAKARTA (MKRI) — The Constitutional Court (MK) rejected the entire material judicial review petition of Article 15 paragraph (2) of Law No. 7 of 2020 on the Third Amendment to Law No. 24 of 2003 on the Constitutional Court for case No. 131/PUU-XXI/2023. Petitioner Mochammad Adhi Tiawarman stated that the provision on prospective constitutional justices as stipulated in the norm being challenged was unconstitutional. However, the Court argued that if additional requirement not to have kinship by marriage up to the third degree with the president or DPR (House of Representatives) members, which the Petitioner wished for, is the authority of the legislatures.
“On the argument of the a quo Petitioner, the Court considered that in relation to the requirements for becoming a constitutional justice, the Court has always been of the opinion that [in addition to] it being the authority of the legislatures, it is also not unconstitutional and not against the principles of open legal policy,” said Constitutional Justice Daniel Yusmic P. Foekh, who read out the Court’s opinion at the ruling hearing on Thursday, December 21, 2023.
Therefore, the Petitioner’s wish that Article 15 paragraph (2) of the Constitutional Court Law mandate constitutional justices to “not have any consanguinity or kinship by marriage up to the third degree with the president and/or DPR members” is inseparable from other qualifications that constitutional justice candidates must fulfill cumulatively, as intended by Article 15 paragraph (2) letters a through h of the Constitutional Court Law. Thus, Justice Foekh continued, if said requirement is deemed important enough to be added, it is entirely within the legislatures’ authority. Furthermore, the Petitioner’s request has been accommodated under Article 17 paragraphs (1), (2), (3), (4), and (5) of Law No. 48 of 2009.
“Thus, based on all the legal considerations, Article 17 paragraphs (1), (2), (3), (4), (5), (6), and (7) of Law No. 48 of 2009 as well as Article 15 paragraph (2) of the Constitutional Court Law do not violate recognition, guarantees, protection, and fair legal certainty as guaranteed by Article 28D paragraph (1) of the 1945 Constitution, which is argued by the Petitioner,” said Justice Foekh.
Right to Object
In addition to the above consideration, the Court also held that related to the Petitioner’s question of Article 17 paragraphs (1) and (2) of Law No. 48 of 2009 on constitutional justices who have such relationships with the president and/or DPR members, the right to object can be enforced for the Petitioner in a judicial review case. The Court also held that, as stated in Decision No. 141/PUU-XXI/2023 and reaffirmed in previous legal considerations in the a quo decision, Article 17 paragraphs (1), (2), (3), (4), and (5) of Law No. 48 of 2009 can be applied to the procedural law in the Constitutional Court, but this does not mean that the Petitioner’s right to object in a judicial review case can be immediately applied.
This is because, when closely examined, Article 17 paragraphs (1) and (2) of Law No. 48 of 2009 are provisions that stipulates that the party being tried has the right to object to the justice who hears the case, and the right to object is the right of a person being tried to file an objection accompanied by reasons against the judge who is trying the case. As a result, the addressee meant in the right to object in Article 17 paragraphs (1) and (2) of Law No. 48 of 2009 is addressed at the judge who hears the case in question, rather than at the material or object that is the substance of the judicial review petition against the 1945 Constitution,” said Justice Foekh.
Thus, he continued, the legal considerations outlined above have answered the Petitioner’s argument regarding his desire to exercise his right to object if any of the constitutional justices has any such kinship with the president and/or House members. Furthermore, three of the nine constitutional justices were nominated by the President, three by the House, and three by the Supreme Court, which. There is potential conflict of interest that is not dissimilar to the concerns the Petitioner raised.
Erga Omnes
Furthermore, in the context of judicial review of laws, the Court has consistently emphasized its stance that its authority is to analyze the abstract norm of a law against the 1945 Constitution, with decisions that are erga omnes. As a result, its decisions apply not only to the Petitioner, but also generally to the community and state institutions. This is in contrast to the Supreme Court’s rulings and the judicial atmosphere created by it, which evaluates instances that are concrete and individualized, such that its decisions only apply to select persons closely tied to the cases.
As such, the Petitioner’s right to object a court hearing must assess whether his objection to the justice hearing his case is strongly tied to the justice’s interest in the case. If he exercises a right to object a constitutional justice who has consanguinity or kinship by marriage up to the third degree with the president and/or House members in the context of a judicial review case, he must consider that the constitutional justice in question is examining abstract norms that are unrelated to concrete events experienced by the Petitioner relating to the statutory norms petitioned for review.
The Court rejected the petition in its entirety. “The Court rejects the entire petition by the Petitioner,” said Chief Justice Suhartoyo reading out the verdict in the plenary courtroom.
Also read:
Petitioners Wish Prospective Justices Have No Kinship with President, House Members
Petition on Kinship between Prospective Constitutional Justices and President/House Revised
In the petition, the Petitioner argued that his constitutional rights had been specifically and actually or at least potentially harmed by the enforcement of Article 15 paragraph (2) of the Constitutional Court Law. He argued that it was clearly in violation of Article 17 paragraph (4) of Law No. 48 of 2009, which regulated that the chief justice and associate justices shall recuse themselves from a case where there is kinship by marriage in the first, second, and third degrees with the litigating party. He felt that he would not get guarantee, protection, and fair legal certainty if the petition as adjudicated by constitutional justices who had such kinship with those parties in casu any such kinship with the president and/or House members.
Therefore, in the petitum, the Petitioner requested that the Court grant the petition by declaring Article 15 paragraph (2) of the Constitutional Court Law conditionally constitutional and legally binding if interpreted as “In order to be appointed a constitutional justice, aside from meeting the requirements as referred to in paragraph (1), a prospective constitutional justice shall meet the requirements: i. not have any kinship by marriage in the first, second, and third degrees with the president and/or DPR members.”
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 21, 2023 | 16:19 WIB 164