Legal counsel Nawaz Syarif at the material judicial review hearing of the Prosecution Law, Thursday (2/29/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — Prospective attorney general who is a political party member can resign since appointed as an attorney general. A five-year grace period after resignation from political party management before appointment as an attorney general is ample time to decide various political interest and party intervention in the attorney general.

Such is the Constitutional Court’s legal considerations for the material judicial review petition of the requirement for attorney general candidate in the Prosecution Law by Jovi Andrea Bachtiar. The ruling hearing on Article 20 of Law No. 16 of 2004 on the Prosecution Office as amended by Law No. 11 of 2021 on the Prosecution Office on Thursday, February 29, 2024 in the plenary courtroom.

For the petition No. 6/PUU-XXII/2024, Deputy Chief Justice Saldi Isra elaborated clearly that a political party executive has a strong attachment to the party since they may choose to be more involved in the party’s activities. This, he said, differs from party members who only serve as a “means’ to achieve political objectives. Therefore, the requirement of five-year party non-involvement prior to appointment as an attorney general is sufficient since, based on legal reasoning, party executives could potentially have conflicts of interest after their appointment as an attorney general if such restriction did not exist.

“The Court is of the opinion that the Petitioner’s argument that Article 20 of the Prosecution Law is unconstitutional and not legally binding is justified. However, the grace period of at least 5 (five) years for a prospective attorney general after resigning or being dismissed cannot be granted by the Court since there are differences in responsibilities, functions, and authority between party executives and members, which shows levels of attachment to the party,” Justice Saldi said at the hearing chaired by Chief Justice Suhartoyo.

Causing Injustice

The Court also could not grant the request that the requirement be attached to Article 20 letter a of the Prosecution Law since the added requirement that the Petitioner intended was inappropriate to apply on citizens or to be added as a new norm. however, the Court basically asserted that the article had led to injustice and unequal treatment before law. However, since the Court’s ruling was not the same as the Petitioner’s petitum, the Petitioner’s arguments were legally grounded in part.

“[The Court] grants the Petitioner’s petition in part; declare Article 20 of Law No. 11 of 2021 on the Amendment to Law No. 16 of 2004 on the Prosecution Office of the Republic of Indonesia conditionally unconstitutional and not legally binding if not interpreted as ‘In order to be appointed an Attorney General, one shall fulfill requirements as referred to in Article 20 letters a through f including the requirement of not being the executive member of any political party unless having resigned for at least 5 (five) years before being appointed as attorney general,’” Chief Justice Suhartoyo reading the verdict.

Criteria for Party Executives

Constitutional Justice Arsul Sani had a concurring opinion on the ruling, while Constitutional Justices Anwar Usman and Daniel Yusmic P. Foekh had dissenting opinions. In his opinion, Justice Arsul stated that it had not been identified whether the constitutionality of prospective attorney general from political parties apply only to party executives or party members who are appointed attorney general. Therefore, the absence of restriction still allows the Court to set the restriction only to party members.

In addition, he added, the Court should assert that party executives should have resigned for at least five years before appointed as attorney general by the president. This needs to be elaborated specifically to avoid multiple interpretations that could lead to legal uncertainty, if any party member who no longer actively participate in party matters is appointed attorney general. Therefore, it is important that the Court define the category of party executives in question.

Also read:

Court Asked to Ban Political Party Members to Be Attorney General

Petitioner of Prosecution Law Revises Legal Standing

At the preliminary hearing on February 1, the Petitioner asserted that Article 20 of the Prosecution Law was in violation of Article 1 paragraph (3), Article 2 paragraph (1), and Article 27 paragraph (1) of the 1945 Constitution. He stressed that the active participation of law enforcers in politics by being members of political parties would harm the prosecution service’s independence, especially in the eradication of criminal acts of corruption. This, he added, was because the attorney general’s political affiliation could lead to political contracts and pressure from their political colleagues. Not to mention, there is currently no fit-and-proper-test in the process of appointment and dismissal of the attorney general as a checks-and-balances mechanism. As such, the attorney general can be dismissed if considered defiant by their political colleagues. Therefore, in his petitum, the Petitioner requested that the Court add the requirement “g. Currently not a member of any political party or has not been a political party member for at least 5 (five) years by dismissal or resignation” to Article 20 of the Prosecution Law.

Author       : Sri Pujianti
Editor        : Lulu Anjarsari P.
PR            : Raisa Ayuditha
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.

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