Constitutional Court building on Jalan Medan Merdeka Barat, Jakarta, Monday (13/3/32023).
JAKARTA, KOMPAS – Constitutional judge Guntur Hamzah was found guilty of violating the principle of integrity because he changed the Constitutional Court’s decision regarding Aswanto’s dismissal as a constitutional judge. The Honorary Council of the Constitutional Court also issued a written warning, because Guntur was proven to have crossed out the phrase “Thus” and changed it to “In the future”, causing the decision to change its meaning. However, the decision was considered far from public expectations.
“The alleged judge (Guntur) was proven to have violated the Code of Ethics and Conduct of Constitutional Judges as stated in Sapla Kasa Hutema, in this case part of the application of the principle of integrity. Imposing a written warning sanction to the alleged judge (Guntur),” said Chairman of the Honorary Council of the Constitutional Court (MK) I Gede Dewa Palguna in a plenary session for pronouncing the decision related to the case of changing the Constitutional Court’s decision number 103/PUU-XX/2022 at the MK Building, Jakarta, Monday (20/3/2023).
In its considerations, the MK Honorary Council considered that Guntur as a constitutional judge—even though he had just been appointed—had the right to propose changing the phrase in the 103/2022 decision. “This means that legally, if the act is approved by other judges, at least the judge who drafted the decision, then the decision is valid. Even though he doesn’t take part in the 103/2022 case breaker, he has the authority,” said Palguna.
It’s just that, according to the Honor Council, the approval of other judges on the proposed change from Guntur never happened. In fact, the proposal was only asked for approval from Arief. However, there is still time to seek permission from other judges before changes are made.
The eighth trial of the judicial review of Law (UU) Number 7 of 2020 concerning the Third Amendment to Law Number 24 of 2003 concerning the Constitutional Court was held in the courtroom on the 2nd floor, Constitutional Court, Gambir, Central Jakarta, Wednesday (1/3/2023).
The change in the phrase “Thus,…” to “In the future,…” has an impact on the 103/2022 decision. According to the Honorary Council, by replacing the phrase “in the future” the coherence in the decision disappears, even contradicts one another (a contradiction in terms). It also gave rise to the impression in the community that the act of dismissing constitutional judge Aswanto was valid, only that in the future such action may not be carried out again. In fact, what is meant is precisely that dismissal in such a manner, whenever it is carried out, is illegal.
The MK Honorary Council also disagreed with Guntur’s argument that the proposal to change the phrase was inspired by the judges’ deliberative meeting (RPH) November 23, 2022 or a few hours before the verdict was announced.
From the evidence of audio recordings and RPH minutes, the Honorary Council found that constitutional judge Suhartoyo said “forward”. However, this forward statement was made in the context that the DPR’s dismissal of Aswanto was not in accordance with Article 23 of the Constitutional Court Law, so it was invalid. Therefore, in the future, the eight constitutional justices need to be protected from similar methods going forward.
The only thing that makes the most sense is the motive related to the question whether the change in the phrase will affect the validity of the Presidential Decree appointing the alleged judges as constitutional judges? If that is the motive then such a motive is futile
Even though the change in phrases in the 103/2022 decision was proven, the Honorary Council did not find enough evidence regarding the motive for deleting the word “Thus,”
“However, even if there is a quad non motive, according to reasonable reasoning, the only thing that makes the most sense is the motive related to the question of whether the change in the phrase will affect the validity of the Presidential Decree appointing judges suspected of being constitutional judges? If that is the motive then such a motive is futile. This is because the Constitutional Court’s decision applies forward or prospectively, not retrospectively or backwards,” said Palguna.
The MK Honorary Council also clarified the allegation of collusion in the case as accused by Zico Leonard Djagardo Simanjuntak. Zico is the applicant for judicial review 103/2022 who first raised the question of changing the decision to the MK. The alleged conspiracy was indicated, among other things, by a change in phrases in the minutes of the trial pronouncing the decision.
However, the findings of the Honorary Council from the statement of the Head of the Trial and Case Service Subdivision show that the minutes of the hearing pronouncing the decision were carried out by taking part in direct legal considerations from the decision that had already been pronounced. This is done to avoid discrepancies between what is stated in the minutes and the corrected decision document.
Illustration. The Constitutional Court held a hearing to improve the case for reviewing the State Capital Law submitted by six students of the Faculty of Law, University of Lampung, Wednesday (13/7/2022). The trial was chaired by Constitutional Justice Arief Hidayat
Before imposing sanctions, the Honorary Council of the Constitutional Court considers aggravating and mitigating factors. As for mitigating matters, including those concerned open from the start so as to facilitate the process of examining cases, and the practice of deleting/altering decisions has become a common practice in the Constitutional Court as long as it is not carried out secretly and obtains approval from other judges.
“There is no standard operating procedure for this common practice, so whether you like it or not, it has to be accepted as a factor that helps reduce the weight of the guilt of the alleged judge’s actions,” he said.
The Honorary Council also blamed the Court’s slow response in handling this case. Based on MKMK’s findings, the case of canceling the decision was known several days after the pronouncement of the 103/2022 decision by a judge and Guntur acknowledged from the start. This has also been notified to the Registrar to be discussed in the RPH but the RPH has never been implemented for reasons that are more psychological in nature. If this was responded to quickly with a response to the phrase verdict, this incident need not be allowed to prolong. In fact, MKMK doesn’t even need to be formed.
Chairman of the Honorary Council of the Constitutional Court (MKMK) I Dewa Gede Palguna at the Office of the Constitutional Court (MK), Gambir, Central Jakarta, Wednesday (1/3/2023).
The thing that is aggravating is that the decision was crossed out in a public atmosphere that has not stopped debating the dismissal of Aswanto and appointing Guntur as his replacement. “Meanwhile, part of the legal considerations for the Constitutional Court’s decision Number 103/PUU-XX/2022 whose phrase was changed is part of the legal considerations that are directly related to the debate so that the actions of the alleged judge, in the eyes of the public, are inevitable if they are perceived as an attempt by the suspected judge to save himself. from the prejudice of the illegitimacy of his appointment as a constitutional judge,” said Palguna.
Recommendation
There are a number of recommendations submitted by the Honorary Council. One of them is important for MK to make standard operating procedures or standar operating procedure (SOP) in the case of constitutional judges wishing to propose changes to the decision being pronounced. Apart from that, the Constitutional Court is also advised to prepare SOPs for the preparation of minutes of hearings both for minutes of ordinary trials and trials for pronouncing decisions which have a different character.
Another recommendation is that the Constitutional Court Regulations regarding the Honorary Council be perfected, particularly the substance and procedures related to findings. Equally important is the need for the Constitutional Court to immediately form a permanent MK Honorary Council, taking into account and taking into account the credibility and integrity of the figures to be appointed in order to build public trust.
“For the sake of legal certainty, the Constitutional Court needs to immediately make a renvoi against the decision of the Constitutional Court Number 103/PUU-XX/2022 dated 23 November 2022, namely by returning the phrase “Thus” into the legal considerations of the decision referred to in Paragraph [3.13.3] page 51,” said Palguna.
The Honorary Council also recommends further coaching for the Registrar of the Constitutional Court by authorized officials.
Responding to the decision, lecturer at the Faculty of Law, Gadjah Mada University, Herlambang P Wiratraman, said that the Honorary Council’s decision was strange and far from the public’s expectations. The MK Honorary Council is considered to have failed to protect the MK’s Marwah. “Obviously it is difficult to accept with common sense, because the consequences of this change are big,” he said.
The invitation gave congratulations after reading the oath of office of Chief Justice of the Constitutional Court (MK) for the 2023-2028 period Anwar Usman and Deputy Chief Justice of the Constitutional Court Saldi Isra at the Constitutional Court Building, Jakarta, Monday (20/3/2023).
With this decision, he admits that he has lost hope for the Constitutional Court. “Recognition and knight’s attitude as a mitigating factor has become a paradox at the institutional level of the Constitutional Court. It is as if the Honorary Council of the Constitutional Court is no longer sensitive to the sense of public justice, but instead relies more on the perpetrators,” he said.
University of Indonesia Law Faculty lecturer Allan FG Wardhana also admitted that he was surprised by the MKMK decision. “It is clearly stated that it violates the principle of integrity. In fact, integrity is an absolute requirement to be a MK judge. GH (Guntur Hamzah) doesn’t meet the requirements,” he said.
He cited Article 24 C of the 1945 Constitution which states that constitutional judges must have integrity and personality that is beyond reproach, be fair, and be statesmen who master the constitution and state administration. With the MKMK decision stating that there was a violation of the principle of integrity in Sapta Karsa Hutama (MK Judge’s Code of Ethics).
Meanwhile, when confirmed, constitutional judge Guntur Hamza admitted that he respects the decision of the Honorary Council of the Constitutional Court. There are several points in the MKMK decision that he noted in the decision, namely that the alleged judge has the authority to submit recommendations for improvement (in the sense that he is still within the limits of his authority, duties and functions of exercising judicial power), has no motive, and there are no regulations regarding procedures. submit proposals for improvement before the verdict is read out.