A revision hearing for the judicial review of the Constitutional Court Law, Thursday (12/21/2023). Photo by MKRI/Bayu

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JAKARTA (MKRI) — The revision hearing for the judicial review of Law No. 24 of 2003 on the Constitutional Court 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—took place on Thursday, December 21, 2023. The panel hearing for case No. 151/PUU-XXI/2023 was presided over by Constitutional Justices Daniel Yusmic P. Foekh (panel chair), M. Guntur Hamzah, and Wahiduddin Adams.

The material judicial review petition was filed by Sugeng Nugroho, Teguh Prihandoko, and Azeem Marhendera Amedi. Through legal counsel Fredrik Jacob Pinakunary, they conveyed the revisions to the petition, including regarding their legal standing.

The Petitioners added Article 24 paragraph (1) of the 1945 Constitution as touchstone, which reads, “Judicial power shall constitute an independent power to administer justice in order to uphold law and justice.”

“In our opinion, Article 10 paragraph (1) of the Constitutional Court Law needs to be amended but we add Article 24 paragraph (1) of the 1945 Constitution as touchstone,” said Pinakunary from one of the Court’s panel courtrooms.

The Petitioner also strengthened their argument by the MKMK’s (Constitutional Court Ethics Council) decision on the dismissal of the chief justice. “Our addition is that this is then reinforced by a decision that proved Constitutional Justice Anwar Usman had legally and convincingly been guilty of violating the code of ethics and conduct of constitutional justices based on the Decision of the Constitutional Court Ethics Council (MKMK) 2/MKMK/L./2023,” he added.

He also emphasized that constitutional justices must internalize their role as guardians of the Constitution, one of the important components in the separation of power based on the principle of checks and balances, so they should understand when to exercise judicial restraint and let political questions be answered through political mechanisms. Due to the open legal nature of the provision being reviewed in Decision No. 90/PUU-XX1/2023, it is appropriate to leave the political question to the political mechanism so that it can be determined based on the will of the people.

Also read: Constitutional Court Law Challenged after Decision on Presidential Tickets’ Age Limit

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 at the preliminary hearing on Wednesday, December 6, 2023.

The Petitioners believe 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 alleged 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.

Author       : Fauzan F.
Editor        : Nur R.
PR            : Muhammad 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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