Panel chairman Constitutional Justice Saldi Isra opening the material judicial review hearing of the Judicial Commission Law, Monday (23/11/2020) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—The material judicial review hearing of Law No. 18 of 2011 on the Amendment to Law No. 22 of 2004 on the Judicial Commission was held again by the Constitutional Court (MK) virtually on Monday, November 23, 2020. The petition of case No. 92/PUU-XVIII/2020 was filed by Burhanudin, a lecturer who entered the selection of ad hocjudges of the Court of Criminal Acts of Corruption in 2016. He challenges Article 13 letter a of the Judicial Commission Law.
At this petition revision hearing, attorney Zainal Arifin Hoesein said the Petitioner had changed the touchstones to 24B paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution, and elaborated Article 13 letter a of the Judicial Commission Law as well as the touchstones. He had also elaborated his constitutional impairment in relation to the phrase “and ad hoc judges” in Article 13 letter a of the Judicial Commission Law, which is related to the authority of the Judicial Commission in the selection of ad hoc judge candidates in the Supreme Court.
He believes that pursuant the Judicial Commission doesn’t have a constitutional authority to select ad hoc judges. Article 24B paragraph (1) of the 1945 Constitution limits the Judicial Commission’s authority to only nominating Supreme Court justices, not other judges, including ad hoc judges. Therefore, the Petitioner’s constitutional right to legal protection and fair legal certainty as regulated in Article 28D paragraph (1) of the 1945 Constitution has been violated by the phrase “and ad hoc judges” in Article 13 letter a of the Judicial Commission Law.
Zainal said the Petitioner had also followed the justices’ advice and focused on the contradiction between the phrase “and ad hoc judges” in Article 13 letter a of the Judicial Commission Law and Article 24B paragraph (1) of the 1945 Constitution. He not only focuses on ad hoc judges of the anti-corruption court, but ad hoc judges in general. He believes the phrase “and ad hoc judges” in the a quo law is clearly against Article 24B paragraph (1) of the 1945 Constitution, especially as the Judicial Commission’s authority had been decided by the Constitutional Court in Decisions No. 005/PUU-IV/2006 and No. 43/PUU-XIII/2015.
Also read: Judicial Commission’s Authority to Nominate Ad Hoc Judges Challenged
The Petitioner felt to have harmed by Article 13 letter a of the Judicial Commission Law along the phrase “and ad hoc judges.” He believes the provision in the a quo law, which equates ad hoc judges with supreme justices, is a constitutional violation of Article 24B paragraph (1) of the 1945 Constitution.
Through attorney Zainal Arifin Hoesein, at the preliminary hearing the Petitioner said ad hoc judges in the Supreme Court are not equal to supreme justices in terms of status, functions, and authorities. Ad hoc judges, especially in the anti-corruption court, used to be selected by the Supreme Court following the Anti-Corruption Court Law, before the provision in the Judicial Commission Law came into effect. The older law had given ad hoc judge candidates a legal certainty to enter the selection following their qualifications.
The Petitioner believes the anti-corruption court is under the Supreme Court as a special court under the general court, which was established to help the Corruption Eradication Commission (KPK) eradicate corruption in the country. Therefore, ad hoc judges are inseparable from the authorities of the Supreme Court as stipulated in the 1945 Constitution and the Judicial Powers Law.
However, Article 13 letter a of the a quo law is an indication that the legislature has expanded the Judicial Commission’s authority from proposing supreme justices to also proposing ad hoc justices in the Supreme Court. in Therefore, equating the selection of supreme justices to that of ad hoc justices, while both have structural and status differences, is a violation of the values of justice.
In addition, based on the provision of Article 24B paragraph (1) of the 1945 Constitution and the Constitutional Court Decisions No. 005/PUU-IV/2006 on August 23, 2006 and No. 43/PUUXIII/2015 on October 7, 2015, Article 13 letter a of Law No. 18 of 2011 on the Amendment to Law No. 22 of 2004 on the Judicial Commission has been declared unconstitutional. Therefore, the Petitioner requested that the Constitutional Court declare Article 13 letter a of the Judicial Commission Law contrary to Article 24B paragraph (1) of the 1945 Constitution and not legally binding.
Writer: Utami Argawati
Editor: Nur R.
PR: Andhini S. F.
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 11/24/2020 18:00 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.