Enforcement of the Code of Ethics for Constitutional Judges Questioned in Constitutional Court Decision NUMBER 90/PUU-XXI/2023
Prof. Denny made a report to the Honorary Council of the Constitutional Court (MKMK) on 27 August 2023, but there was no response until the constitution decided on 16 October 2023 to accept some of the requests in the review of Law Number 7 of 2017 concerning General Elections Article 169 letter (q ) against Article 28 D of the 1945 Constitution which means that the age of presidential candidates is no longer limited to 40 years of age but rather every executive position such as governor, mayor, as well as every position elected through general elections and regional head elections can nominate to be a presidential candidate. Decision Number 90/PUU-XXI/2023 reads “be at least 40 (forty) years old or have/are currently holding positions elected through general elections including regional head elections. “So Article 169 letter q of Law Number 7 of 2017 concerning General Elections in full states that you must be at least 40 (forty) years old or have/are currently holding positions elected through general elections, including regional head elections…”
There are different reasons (Dissenting Opinion) from the four constitutional judges, namely, Wahiddudin Adams, Saldi Isra, Arief Hidayat, and Suhartoyo which are still the same as the previous decision regarding the request for the age of the vice presidential candidate. In fact, the decisions made by the Constitutional Court, apart from decision 90/PUU-XXI/2023, seem to dismiss all statements from the decision.
Constitutional Justice Wahiddun Adams seemed to give a signal in his view that “the independence of judicial power is carried out in the form of “freedom not to do something” (The Don’ts; judicial restraint) which is relatively more difficult to do in human terms, because humans naturally tend to more interested in doing something rather than refraining from doing something.” This is a signal that to maintain the dignity of constitutional judges, the code of ethics should be enforced.
Constitutional Justice Saldi Isra also said in his Dissentin Opinion “The Court changed its stance and attitude in just a moment. Previously, in the Constitutional Court Decision Number 29-51-55/PUU-XXI/2023, the Court explicitly, directly and firmly stated that the age norm in Article 169 letter q of Law 7/2017 is within the authority of the legislators to change it. In fact, whether we realize it or not, these three decisions have closed the space for other actions other than those carried out by legislators. Has the Court ever changed its stance? There has been, but never this fast, where changes occur in a matter of days. Such changes do not simply override the previous decision, but are based on very strong arguments after obtaining important facts that have changed in society. The question is, what important facts have changed in society so that the Court changed its stance from the Constitutional Court Decision Number 29-51-55/PUU-XXI/2023 with a ruling of rejection so that it changed to a ruling of granting in the a quo Decision?”
Constitutional judge Arief Hidayat experienced irregularities which he conveyed in his dissenting Opinion “1. “The trial scheduling seemed to take a long time, 2. discussions at the judge’s deliberation meeting, 3. Case Number 90/PUU-XXI/2023 and case number 91/PUU-XXI/2023 were withdrawn but continued,” the irregularities raised by Arief Hidayat should also have been resolved. more attention from the supervision of constitutional judges, namely MKMK.
Constitutional Justice Suhartoyo even stated in his Dissenting Opinion “in Case Number 29/PUU-XXI/2023 and Case Number 51/PUU-XXI/2023 where I did not grant legal standing to the Petitioners on the grounds that the Petitioners were not legal subjects “who have a direct interest in running for president and vice president, so it is not relevant for the Petitioner to request to interpret the norms of Article 169 letter q of Law 7/2017 for the benefit of other parties, as in full in the petitum of his petition.”
The dissenting Opinion’s decision is as if the constitutional judges are giving us a signal that they are being held hostage by the law, the supervision of the constitutional judges who are supposed to protect them is weak. The conflict of interest has been clearly stated by the constitutional judges who gave a dissenting opinion, but they can only say that there is strangeness, confusion and mystery. The Honorary Council of the Constitutional Court should be able to attend, but unfortunately because its members are still temporary, it is slow in handling the enforcement of the code of ethics for constitutional judges even though the legal basis is clear.
Even Arief Hidayat, in his dissenting Opinion, said that this happened because the decision at the Judge’s Deliberation Meeting was attended by Anwar Usman, where the previous decision Anwar Usman did not follow “…. The Deputy Chairman at that time said that the chairman’s absence was due to avoiding potential conflicts of interest (conflict of interest) because the legal issue that was decided was closely related to the minimum age requirement to become a Presidential Candidate and Vice Presidential Candidate where the Chairman’s relatives could potentially be proposed in the 2024 Presidential Election contestation…. The Chairperson said that his absence from the discussion and decision-making forum on Case Number 29/PUU-XXI/2023, Case Number 51/PUU-XXI/2023 and Case Number 55/PUU-XXI/2023 was due to health reasons and not to avoid a conflict of interest. (conflict of interest) as stated by the Deputy Chair at the previous RPH.”
In fact, in accordance with the Code of Ethics and Behavior of Constitutional Judges of the Republic of Indonesia (Sapta Karsa Hutama) PMK Number 09/PMK/2006 in applying the principle of partiality point 5 states that:
“Constitutional judges unless the quorum is not fulfilled to conduct a trial, must resign from examining a case if the judge cannot or is deemed unable to act impartially for the reasons below: a. The constitutional judge clearly had prejudice against one of the parties; and/or b. The constitutional judge or his family members have a direct interest in the decision.” The MKMK, whose members are temporary and whose composition is one active constitutional judge, should uphold the principle of impartiality, if there is no awareness of constitutional judges. The code of ethics must be enforced in accordance with Article 5 Paragraph (3) of Law Number 48 of 2009 concerning judicial power which confirms that “Judges and constitutional justices are obliged to comply with the Code of Ethics and Code of Conduct for Judges”.
The Dissenting Opinion delivered by several constitutional judges explained the mystery of how this decision was born. Constitutional judges’ decisions are final and binding, so where will the people look for justice when the highest justice is tarnished by office holders. Prof. Denny’s reporting can reflect the problem of the code of ethics, the enforcement of which and the internal authority for ethical supervision have justified Prof. Denny’s submission. Jimly stated that enforcing ethics internally would be difficult because there is the principle of “ewuh – Pekeuwuh” or feeling embarrassed.
If investigated further, it becomes normal that the decisions of constitutional judges appear to be inconsistent and even violate the principle of impartiality because Law number 7 of 2020 concerning the Constitutional Court changes the authority of the ethics council that supervises constitutional judges to become the Honorary Council of the Constitutional Court which is not accompanied by procedural regulations until month February 2023. Supervision of constitutional judges has become urgent with the inconsistent decisions of the Constitutional Court, even violations committed by judges seem to have no response from the MKMK. Because the enactment of Law No. 7 of 2020 changed the authority of the ethics council by the MKMK on a temporary basis, making enforcement of the code of ethics difficult to realize, even now the MKMK decision after the law. No. 20 of 20222 there is only one. Even though Prof.’s report. Denny was carried out long before this decision was born, however, because the MKMK is temporary with a very large composition of the MKMK, there is a conflict of interest because it consists of one active constitutional judge, one community figure, one person with a legal background. In fact, apart from that, the PMK related to MKMK proceedings was made by the Constitutional Court itself with Constitutional Court Regulation Number 1 of 2023 concerning the Honorary Council of the Constitutional Court. We indeed do not accept the weakening of ethical code enforcement that occurs at the Constitutional Court, because this can damage the dignity of constitutional judges, but we cannot deny that this weakening occurred starting from the birth of Law No. 7 of 2020, followed by the review of the Constitutional Court’s decision Number 56/PUU-XX /2022 means that the composition of the MKMK, which previously consisted of one KY person, has been changed to one public figure, even though one active constitutional judge is still retained, and one member has a legal background. Supervision of Constitutional Judges is only supervised by the internal Constitutional Court without any supervision from the Judicial Commission because of Decision Number 005/PUU-IV/2006.
This clearly caused the Constitutional Court’s decision to be reckless, and the report made to the MKMK was not responded to quickly, which resulted in the decision being final and binding. Where the decision is high there will be a conflict of interest. This was very clear, even stated by the constitutional judge who gave a dissenting opinion which showed very clearly that there were many violations in the issuance of Decision 90/PUU-XXI/2023. They are held hostage by the politics of the law. No.7 of 2020 concerning the Third Amendment to Law Number 24 of 2003 concerning the Constitutional Court. Law Number 7 of 2020 weakens the supervision of Constitutional judges by including the composition of Constitutional Judges who are active in the MKMK and are temporary, and from decision 90/PUU-XXI/2023 the dissetting opinion describes the problems in enforcing the code of ethics which are held hostage by Law Number 7 of 2020. 2020.
