COURT RULING THAT CANNOT BE CORRECTED
(a note on Constitutional Court Decision no.90/PUU-XXI/2023)
By: Tripeni Irianto Putro
The 1945 Constitution of the Republic of Indonesia in article 24 emphasizes that judicial power is an independent power to administer justice to uphold law and justice. Furthermore, in the Law on Judicial Power no. 48 of 2009 states that judicial power is exercised by a Supreme Court and subordinate judicial bodies in the general court, religious court, military court, state administrative court, and by a Constitutional Court. So, the Constitutional Court is one of the actors of judicial power as is the Supreme Court.
Based on article 24 e paragraph (1) and paragraph (2) of the 1945 Constitution of the Republic of Indonesia, the Constitutional Court has the authority to examine laws against the 1945 Constitution of the Republic of Indonesia, deciding disputes over the authority of state institutions whose authority is granted by the Republic of Indonesia Constitution. in 1945, deciding on the dissolution of political parties, deciding disputes over general election results, and giving a decision on the opinion of the DPR that the President and/or Vice President are suspected of having committed legal violations in the form of treason against the state, corruption, bribery, other serious crimes, or disgraceful acts, and/or no longer fulfill the requirements as president and/or vice president as intended in the 1945 Constitution of the Republic of Indonesia.
From the provisions of article 24 of the 1945 Constitution, it can be seen that the Constitutional Court has enormous authority. The authority to adjudicate and decide on strategic disputes, the impact of which will be felt by all Indonesian people from Sabang to Merauke, and will greatly influence the order of national and state life. . One of them that has recently attracted public attention is the dispute regarding the age limit requirements for presidential and vice presidential candidates before the registration of presidential and vice presidential candidates in the 2024 elections which is being handled by the Constitutional Court.
In this dispute, the Plaintiff felt that the minimum age requirement of 40 years for presidential and vice-presidential candidates as regulated in Election Law no. 7 of 2017 is contrary to the 1945 Constitution, because there are many young people who are not yet 40 years old, but who are eligible to be nominated and cannot take part in the contest. And regarding this lawsuit, precisely before the deadline for registration of presidential and vice presidential candidates, several parties have been shocked by the decision of the Constitutional Court on October 16, 2023 in case no. 90/PUU-XXI/2023 regarding the minimum age limit provisions for presidential and vice presidential candidates in Law no. 7 of 2017 concerning Elections. The Constitutional Court granted the lawsuit on the grounds that the minimum age requirements for presidential and vice-presidential candidates regulated in the Election Law were in conflict with the 1945 Constitution. The decision also stated that presidential and vice-presidential candidates who had ever been elected through elections, either as DPR/DPD, Governor or Mayor can run for office, even though they are not yet 40 years old.
There are parties who object to the decision of the Constitutional Court, including the political parties that will nominate their presidential and vice presidential candidates in the 2024 election contest. Also objecting are legal experts and political experts who believe that the decision taken by the Constitutional Court is full of conflicts of interest. . Furthermore, legal and political experts even consider that the Constitutional Court’s decision regarding the age limit requirements for presidential and vice-presidential candidates shows how the Constitutional Court was greatly influenced by the intervention of the government in power and even the intervention of the Chief Justice of the Constitutional Court at that time, who was suspected to be a close relative of one The vice presidential candidate who is predicted to join in the contestation. Many legal experts and political experts suspect that the implications of the Constitutional Court’s decision could have an impact on the uncertainty of our ongoing democracy.
As a result of the confusion over the Constitutional Court’s decision, parties who felt that the Constitutional Court’s decision was full of conflicts of interest, urged that an Honorary Council of the Constitutional Court be formed to cancel the decision. However, the considerations of the MK Honorary Council (MKMK) in hearing violations of the code of ethics and behavior of constitutional judges, did not provide the slightest assessment of decision no. 90/PUU-XXI/2023 regarding the age requirements for presidential and vice-presidential candidates to be legally disabled. On the other hand, the MK Honorary Council emphasized that the decision in question remains legally valid and has a final and binding nature. The assessment of whether a decision is valid or not due to a violation of the code of ethics cannot be applied to assess decisions in judicial review cases at the Constitutional Court. The problem now is where else can a party who is dissatisfied with the decision submit an objection?
Indeed, in the explanation of article 10 of Law no. 8 of 2011 concerning amendments to Law no. 24 of 2003 concerning the Constitutional Court, states in paragraph (1) that the Constitutional Court’s decision is final, that is, the Constitutional Court’s decision immediately acquires permanent legal force from the moment it is pronounced, and no legal action can be taken. The final nature of the Constitutional Court’s decision in this Law also includes binding legal force (final and binding).
The words “no legal action can be taken” in the explanation of article 10 of the Law on the Constitutional Court seem to want to emphasize that every decision taken by a constitutional judge must always be correct and correct so that it cannot be corrected again. Of course, this statement or assertion is too naive when viewed from a justice perspective. There may be some legal experts who are of the opinion that a decision that is final and binding is a decision that has more legal certainty value, because the decision can be implemented immediately. However, from a justice perspective, does such a decision fulfill a true sense of justice? What if the parties who are dissatisfied with the Constitutional Court’s decision still want to appeal to a higher institution?
We actually have a judicial institution whose decisions directly have permanent legal force, namely the Tax Court. Law no. 14 of 2002 concerning the Tax Court, determines that the Tax Court’s decision is a final decision that has permanent legal force. However, for parties who are not satisfied with the decision, it is still possible to take legal action, namely submitting a judicial review to the Supreme Court. So there are still institutions that correct it, whether the decision is correct or not.
Other judicial institutions, such as the General Court and State Administrative Court, even provide multilevel legal remedies for parties who are dissatisfied with court decisions, starting from filing appeals, cassation, even to reviewing court decisions that have permanent legal force.
Reflecting on the availability of institutions that handle legal remedies in the courts mentioned above, the existence of a legal remedy institution in the Constitutional Court is a necessity. This view of the importance of the availability of legal remedies for decisions handed down by a judge, was also conveyed by Retno Wulan Sutantio in her book “Civil Procedural Law in Theory and Practice”, she is a lecturer who also served as Supreme Judge at the Republic of Indonesia Supreme Court, who stated that judges are ordinary people, who can make mistakes and make mistakes in handing down decisions.
Indeed, even though there are more members of the panel of judges at the Constitutional Court who examine a case than other courts, as Article 28 paragraph (1) of the Constitutional Court Law states, that the Constitutional Court examines, hears and decides cases through a plenary session of the Constitutional Court with 9 (nine) constitutional judges led by the Chief Justice of the Constitutional Court, but this cannot guarantee that the decisions are truly correct and fair. Constitutional justices are not “Judge Bao”, a judge in legendary Chinese society who is considered a demigod, and is seen as the most fair in giving decisions on every case submitted to him. A constitutional judge is still an ordinary human being, who can make mistakes. Even though we know that the requirements to become a constitutional judge are not easy, he must have integrity and a personality that is beyond reproach, be fair, and also be a statesman who understands the constitution and state administration.
Learning from the decision of the Constitutional Court no.90/PUU-XXI/2023 regarding the minimum age limit for presidential and vice presidential candidates which has shocked the public ahead of the 2024 elections, where parties who are not satisfied with the decision cannot do anything, because of the mechanism The law does not allow the Constitutional Court’s decision to be submitted to a higher court’s legal action to be corrected, so it is time to think about having some kind of review institution, so that the final and binding decision can be corrected or tried again. So at the very least, the review decision will make the Constitutional Court’s decision more verifiable, and parties who were previously dissatisfied with the Constitutional Court’s decision will be more inclined to accept it.
Considering that up to now, the Constitutional Court has not in fact provided any legal remedies regarding its decision products, it seems that political will is needed from the law makers, namely the Government together with the DPR, to immediately look for concrete steps. And one of the steps that can be taken is to revise the Constitutional Court Law and include an article regarding the institution that has the authority to correct MK decisions that are final and binding. With the existence of an institution that has the authority to correct and re-adjudicate the Constitutional Court’s decisions, it is hoped that the Constitutional Court will produce decisions that not only provide legal certainty, but also provide a sense of justice for the judiciary. Hopefully.
