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Recusal at the Constitutional Court of Indonesia

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Recusal at the Constitutional Court of Indonesia ISSN 2455-4782 RECUSAL AT THE CONSTITUTIONAL COURT OF INDONESIA Authored by: Syamsudin Noer* * PhD Candidate at Brawijaya University, Indonesia ______________________________________________________________________________ ACKNOWLEDGMENT This paper was supervised by Luthfi Widagdo Eddyono, researcher at Indonesian Constitutional Court. Author thanks Mr. Luthfi, who provided insight and expertise that greatly assisted the author in his research, although Mr. Luthfi may not agree with all of the conclusions of this paper. 182 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7 ISSN 2455-4782 ABSTRACT This article will search about recusal regulations for judges in Indonesia. I found that there are no rules about the recusal at the Constitutional Court of Indonesia meanwhile in other courts there were clear regulations. However, in reality, there are some practices concerning recusal at the Constitutional Court. This paper provides a recommendation of how the recusal is able in due to the request of the constitutional justice seekers, or to be submitted by the constitutional judges who clearly have a direct or indirect conflict of interest in the case. Keyword: Recusal, Constitutional Judges, Indonesian Constitutional Court. 183 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7 ISSN 2455-4782 INTRODUCTION The constitutional judges have a very important position in any democratic state based on law (constitutional democracy) or a democratic legal state (democratic rule of law, or democratische rechtsstaat).1 According to Article 24C 1945 Constitution, the Indonesian Constitutional Court has the authority to adjudicate at the first and final instance, the judgment of which is final, to review laws against the Constitution, to judge on authority disputes of state institutions whose authorities are granted by the Constitution, to judge on the dissolution of a political party, and to judge on discussions regarding the result of a general election. The Indonesian Constitutional Court also shall render a judgment on the petition of the People’s Representative Council regarding an alleged violation by the President and/or the Vice President according to the Constitution. The constitutional judge is a morality enforcer used in the field of justice which is the principal function of the branch of judicial power. In the hands of judges, the final decision and justice create in the dynamics of state. The decision of the Constitutional judges is a state decision. The judge decided on the basis of the state power mandated to him. The final judgment of the judge is not only to respect to the rights and duties of citizens but also with respect to the right to life and all human rights.2 Although there are no rules about the recusal in the Constitutional Court Law. However, in practices, there is a precedent of recusal at the Constitutional Court. The recusal is due to the request of the justice seekers, or to be submitted by the constitutional judges who clearly have a direct or indirect conflict of interest in the case. 1 Jimly Asshiddiqie, “Pengangkatan dan Pemberhentian Hakim Indonesia”, on Susi Dwi Harijanti (Ed.), Negara Hukum yang Berkeadilan–Kumpulan Pemikiran dalam Rangka Purnabakti Prof. Dr. H. Bagir Manan, S.H., M.CL., Cet. 1., (Bandung: PSKN FH UNPAD, 2011), p. 610. 2 Ibid. 184 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7 ISSN 2455-4782 A. Research Question How is the regulation and precedent of recusal in the Constitutional Court of the Republic of Indonesia? B. Research Methodology This research is a normative legal research or literature study. The material used is the primary legal material, among others, a set of legislation starting from the 1945 Constitution, the Law, the Constitutional Court Decision, the Government Regulation and other regulations. Secondary law materials include handbooks, magazines, journals, newspapers, and scientific works. All data obtained through legal materials analyzed with qualitative analysis that produces a descriptive-analytical data. RESULT AND DISCUSSION As the view of recusal, the object of this paper as well as the research, should not be understood as the right to choose the judge or justice seekers or the party who has the initiative to file a case at the Constitutional Court. This right must be interpreted as the right to grant the judges which have the independence and impartiality of cases advanced to the panel of judges, in which the panel of judges as if from the outset has no direct or indirect interest in the case. On the contrary, if the view of the recusal, it is seen that this condition is the right to vote for a judge (appropriate), then the judicial institution suffered a great setback, because any justice seekers who litigate in the Constitutional Court, may choose judges, this condition will lead to intervention on the principles of independence and impartiality of judges in examining, hearing, and deciding cases, consequently the election of judges should make the judge must think how not to disappoint his constituents by justifying and granting what is his petition. The regulation of recusal, of which are regulated in legislation starting from Article 17 paragraph (1) of Law 48/2009 concerning Judicial Power that the Trial Party has the recusal to disobey the judge to hear the case. Then Article 17 Paragraph (2) is declared the recusal of repudiation as referred in paragraph (1) is the right of a person who is tried to file an objection which is 185 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7 ISSN 2455-4782 accompanied by reason against a judge who has tried his case. Article 17 Paragraph (3), there it is rules that a judge shall withdraw from the court if there is any relationship between blood and femininity up to the third degree, or the relationship of husband or wife despite divorce, whether in relation to the chairman, one member judge, prosecutor, advocate, or clerk. Continued in Article 17 paragraph (4) in the Judicial Power Law that the chairman of the assembly, member judges, prosecutors, or clerks shall be required to withdraw from the court if the family ties up to a third degree, or the husband or wife relationship, tried or advocated. Article 17 paragraph (5) a quo that a judge or clerk shall be required to resign if both have direct or indirect interests,3 either on their own initiative or on the request of justice seekers. Such provision is reinforced in the Court's Implementation Handbook on Duties and Administrative Courts, resignation as a judge, in which a judge is not requested by an interested party to resign from a case in the case of a judge personally having a direct or indirect interest in the case. While Article 17 Paragraph (6) of the Judicial Power Law states that in the event of violation of the provision as referred to in paragraph (5), the verdict is declared invalid and to the judge or the clerk concerned shall be liable to administrative or criminal sanctions in accordance with the provisions of legislation apply. The provisions of the recusal to disable in the Judicial Authority Law are closed in Article 17 paragraph (7), namely the case as referred to in paragraph (5) and (6) shall be reviewed again with a different set of judges.4 Other provisions on the recusal of disobedience are also stipulated in Article 41 paragraph (1) of Law 14/1985 as amended by Law 3/2009 regarding the Supreme Court declaring that a judge shall withdraw from a trial if there is a family relationship of blood to the third degree or relationship of husband or wife even though it has been divorced by one of the member judges or clerks in the same Assembly intended Article 40 paragraph (1).5 3 Mahkamah Agung RI, Buku Pedoman Pelaksaan Tugas dan Administrasi Pengadilan Buku II, Edisi Revisi, Cetakan ke-5, (Jakarta: Mahkamah Agung RI, 2004), p. 114. 4 In the Elucidation of Article 17 paragraph (7) stated, "Different" in this provision is means a panel of judges which is not bound by the provisions of paragraph (5). 5 Article 40 paragraph (1) of the Supreme Court Law, in which the Supreme Court examines and interferes with at least 3 (three) Judges. The explanation: If the Assembly convenes with more than 3 (three) Judges the number should always be odd. 186 | P a g e JOURNAL ON CONTEMPORARY ISSUES OF LAW [JCIL] VOLUME 4 ISSUE 7 ISSN 2455-4782 Article 41 Paragraph (2) of the Supreme Court Law, a judge or clerk shall be required to withdraw from the trial if the family is connected to the blood of a third or third relationship or husband or wife despite having been divorced by the Public Prosecutor, Military Defender, Defendant, Legal Counsel, Defendant or Plaintiff. Then in Article 41 Paragraph (3) it is stated that the family relationship as referred to in paragraph (1) and paragraph (2) shall also apply between the Supreme Court and/or Registrar of the Supreme Court with the Judge and/or Registrar of the Court of First Instance and the Judge and/or Clerk of the Court Level of Appeal, which has adjudicated the same case. In Article 41 paragraph (4), if a Judge who decides cases in the first instance or level of appeal, then has become Supreme Court Justice, then the Supreme Court is prohibited from examining the same case. On Article 41 paragraph (5), the judge or clerk as referred to in paragraph (1), paragraph (2), paragraph (3), and paragraph (4) shall be replaced, and if not replaced or not resign while the case has been terminated, then the verdict is void and the case shall be immediately tried again with another assembly of the Assembly.
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