MK Chairman: Infringement Rights Against Constitutional Judges Used During Decision Making

JAKARTA - Chairman of the Constitutional Court (MK) Suhartoyo said that the right to disobey the constitutional judge would be used when making decisions, while during the trial, all judges must be present unless they were prevented by a clear reason.

Suhartoyo's statement was made in response to a request from the applicant for case number 260/PUU-XXIII/2025 regarding the testing of the Military Justice Law. In this case, the applicants asked Constitutional Judge Adies Kadir not to be included.

"Later we will discuss it in the judges' meeting, but the lawyers must also understand that the right to refuse will be used when the judges will determine or make a decision. During the trial process, the judges must not miss the trial," he said in the MK Plenary Session Room, Jakarta, Thursday, quoted by Antara.

Suhartoyo said that if in the end the right to be ignored is used without a fundamental reason, the Court will actually make a presumption of guilt.

During the trial, the applicant's lawyer, Irvan Saputra, said that his party had sent a letter to the Constitutional Court on February 10, 2026. The letter was about the request for a right to refuse so that Constitutional Judge Adies Kadir did not participate in the case of his client.

According to Irvan, this request is in line with the mandate of Article 17 paragraph (1) and paragraph (5) of Law Number 48 of 2009 concerning the Judiciary.

Both articles provide that the parties to the trial have the right to refuse the judge who tried the case and the judge must resign from the trial if he has an interest in the case under investigation, either on his own initiative or at the request of the parties.

"We hope that Your Excellency the Chairman will consider our request for a right of appeal because it is important that we convey that this trial is objective and fair," said Irvan.

Adies Kadir is a constitutional judge proposed by the House of Representatives of the Republic of Indonesia to replace Arief Hidayat who retired on February 3, 2026. Adies began sitting as a Constitutional Court judge on Friday (6/2). On the same day, he was reported to the MK Honor Council because his nomination was considered inappropriate.

Meanwhile, Case No. 260/PUU-XXIII/2025 was filed by Lenny Damanik and Eva Meliani Br. Pasaribu. They tested Article 9 paragraph 1, Article 43 paragraph (3), and Article 127 of Law Number 31 of 1997 concerning Military Justice.

Lenny is the mother of Michael Hitson Sitanggang (15), a victim of abuse who was killed by Sertu Reza Pahlivi in May 2024; while Eva Pasaribu is the daughter of Rico Sempurna Pasaribu, a journalist who was killed along with his wife, children, and grandchildren because his house was burned after reporting on a gambling business allegedly run by a TNI soldier with the initials Koptu HB.

Lenny and Eva questioned the dominance of military judicial jurisdiction over general courts. In their petition, the applicants said that there had been a difference in the legal position of TNI members with other citizens.

They reasoned that when committing a criminal offense, citizens who are not TNI soldiers are tried in a general court, while TNI members are tried in a military court even though the criminal offense committed is both a general criminal offense.

"The criminal offense violated is the same, namely a general criminal offense, but the jurisdiction of the court that has the authority to try is different, the procedure is different, and the verdict is also very different," the applicants said, quoted from their application file.

Article 9, paragraph 1, is the heart of the Military Justice Law which stipulates that the military court has the authority to try criminal acts committed by soldiers.

The applicants specifically questioned the phrase "criminal offense". According to them, the phrase opens up a wide opportunity for interpretation of the military court's authority.

This condition, according to the applicants, causes the military court to not only be able to try soldiers who commit military crimes and military disciplinary violations, but also to try general crimes such as corruption, traffic, and narcotics.

Therefore, Lenny and Eva asked the Constitutional Court to change the phrase "criminal act" in Article 9 paragraph 1 of the Military Justice Law into "military criminal act".

In addition, they asked that Article 43 paragraph (3) and Article 127, which contain provisions for when there is a difference of opinion on a matter to be continued in a military court or a general court, be declared not to have binding legal force so that it no longer applies.