Two Petitions on Constitutional Court Law Rejected
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Chief Justice Suhartoyo delivering the verdicts at a ruling hearing for the judicial review of Law No. 7 of 2020 on the Constitutional Court, Wednesday (1/31/2024). Photo by MKRI/Ifa.


Chief Justice Suhartoyo delivering a verdict at a ruling hearing for the judicial review of Law No. 7 of 2020 on the Constitutional Court, Wednesday (1/31/2024). Photo by MKRI/Ifa.

JAKARTA (MKRI) — Two material judicial review petitions of Law No. 7 of 2020 on the Constitutional Court by Rega Felix was rejected by the Constitutional Court (MK). The Decisions No. 152/PUU-XXI/2023 and 153/PUU-XXI/2023 were delivered on Wednesday, January 31, 2024 in the plenary courtroom. “[The Court] adjudicated: to reject the Petitioner’s petition in its entirety,” said Chief Justice Suhartoyo delivering the verdict alongside the other constitutional justices

In case No. 152/PUU-XXI/2023, the Petitioner challenges Article 54 of the Constitutional Court Law. He stated that he had had actual constitutional loss relating to the case. 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, he alleged.

In response to the petition, the constitutional justices argued that not all cases petitioned for review require (plenary) examination hearings. Constitutional Justice Enny Nurbaningsih, who delivered the Court’s legal opinions, said that the decision to apply or not to apply Article 54 of the Constitutional Court Law was adjusted to the needs of the case being examined, including the three parameters the Petitioner requested. Because each case has different characteristics and needs, the word “may” in Article 54 of the Constitutional Court Law allows the Court the freedom—according to the justices’ decisions made in a deliberative meeting of justices. In this case, if upon assessment they deem the petition and evidence “clear enough”, the Court without hesitation would decide the case in question without the need for (plenary) examination hearings.

“This is part of the application of the principles of simple, swift, and cost-effective justice. Therefore, in some cases submitted to the Court, it is not entirely necessary to conduct examination hearings, including to hear the parties as referred to in Article 54 of the Constitutional Court Law,” she said.

Based on the legal considerations above, Justice Enny said the word “may” in the interpretation of the law is commonplace, as is the case in Article 54 of the Constitutional Court Law. In this regard, the justices’ assessment in using the word “may” to decide the application of Article 54 of the Constitutional Court Law cannot be equated with the discretion exercised by state officials as argued by the Petitioner.

“Thus, the Petitioner’s argument to change the word ‘may’ to ‘must’ in the a quo provision is considered as something that can narrow the justices’ freedom in determining the parties to be heard in the (plenary). Examination hearings. Moreover, if the word ‘may’ is interpreted as ‘must,’ including for the three parameters argued by the Petitioner, this will force the Court to always examine cases in (plenary) examination hearings,” Justice Enny emphasized.

Also read:

Constitutionality of Constitutional Justices’ Age Limit Challenged

Petitioner Revises Petition on Constitutional Justices’ Age Limit

Constitutional Age Limit

Meanwhile, in case No. 153/PUU-XXI/2023, the Petitioner challenged Article 15 paragraph (2) letter d, Article 23 paragraph (1) letter d, and Article 26 paragraph (1) letter b of the Constitutional Court Law. He argued that he had 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 holds a law degree, especially in constitutional law, and works as an advocate, thus meeting the requirements for a constitutional justice. However, because the minimum age requirement has often been changed to be higher without clear rationale—currently 55 years—it had caused him constitutional harm.

In its legal opinions, delivered by Constitutional Justice M. Guntur Hamzah, the Court stated that the Petitioner had given a reason why his petition differed from the petition No. 81/PUU-XXI/2023, but essentially similarly challenged the minimum age for constitutional justices that have been amended several times. Because of it, the Petitioner, who aspires to become a constitutional justice, felt there was uncertainty on when he would meet the age requirement to apply for a candidacy. The Court, however, emphasized that it stands by its stance as is shown in the aforementioned quote of legal opinion that any changes in relation to the requirements for constitutional justices—especially minimum age, retirement age, and term of office—law amendments are generally reasonable since there is a demand that the law always keeps up with the times as long as it does not threaten judicial independence as is stipulated in Article 24 paragraph (1) of the 1945 Constitution.

“In the event that there is a change to the Constitutional Court Law, the change applies to prospective constitutional justices to be proposed by the proposing institutions as has been emphasized and considered in the Constitutional Court Decision No. 81/PUU-XXI/2023,” Justice Guntur read.

In his petitum, the Petitioner proposed an additional alternative requirement “or has received a recommendation from at least 2 (two) professors of constitutional law and state administration” if the minimum age remains at fifty-five years of age. After examining the petition, the Court found that the Petitioner had not explained clearer criteria for the professors to be granted the authority to give recommendation to the proposing institutions.

The Court also stated that the requirement of minimum age for constitutional justices cannot be compared with the requirement of two recommendations from professors. In addition, there is no fundamental basis for the argument. Therefore, the Court stressed, it is inappropriate to compare the alternative requirement of recommendations and the age requirement. The unclear criteria for professors and its irrelevance as an alternative requirement, the Court argued, means the alternative requirement was irrelevant to consider.

“Therefore, the Petitioner’s argument on the judicial review of Article 15 paragraph (2) letter d of Law No. 7 of 2020 is unconstitutional if not interpreted as ‘is 55 (fifty-five) years old at the minimum or has received a recommendation from at least 2 (two) professors of constitutional law and state administration’ is legally groundless,” Justice Guntur concluded.

Author       : Fauzan Febriyan/L. A. P.
Editor        : Lulu Anjarsari P.
PR            : Tiara Agustina
Translator  : 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.


Wednesday, January 31, 2024 | 14:52 WIB 57