Can The Constitutional Court's Decision Be Canceled? Here's What Experts Say

Illustration of the Constitutional Court (MK). (VOI)

YOGYAKARTA Many people have questioned whether the Constitutional Court's decision can be canceled if it is proven that there has been an ethical violation committed by the Chairman of the Constitutional Mahkama (MK) Anwar Usman in making the Decision 90/PUU-XXI/2023.

As is known, the Honorary Council of the Constitutional Court or the Constitutional Court had previously received as many as 21 reports of alleged violations of the ethics of the Constitutional Court judge. The report relates to the Constitutional Court's decision to allow regional heads to run as presidential and vice presidential candidates even though they are not even 40 years old.

Receiving the report, the Constitutional Court is looking for alleged violations of the code of ethics that will be read out today. Then, if it is proven that there is an ethical violation, can the decision of 90/PUU-XXI/2023 be canceled?

Regarding the cancellation of the Constitutional Court's Decision, the Constitutional Guard Advocate (APK) explained that the MKMK led by Jimly Asshiddiqie did not have the right to cancel the Constitutional Court's decision, including the Constitutional Court's decision Number 90/PUU-XXI/2023 concerning the requirements for the presidential and vice presidential age limit.

APK Coordinator Raden Elang Mulyana explained that the regulation was contained in the Constitutional Court Regulation No. 1 of 2023 concerning the Honorary Court of the Constitutional Court. Article 3 Paragraph 2 explains that the Constitutional Court only has the authority to examine and decide alleged ethical violations and behavior of constitutional judges.

"Strictly speaking, the Honorary Council of the Constitutional Court does not have the authority to amend or cancel the decision of the Constitutional Court of the Republic of Indonesia Number 90/PUU-XXI-2023 dated October 16," Elang explained in a written statement, Saturday, November 4.

In addition, Elang also emphasized that the Constitutional Court's decision was final and binding after it was read.

"In a legal sense, it has legal certainty and cannot be disallowed by any institution," he explained again.

Elang also mentioned that the Constitutional Court's decision which regulates the requirements for the age limit for presidential and vice-presidential candidates must also be carried out immediately in order to provide legal certainty.

Cancellation of the Constitutional Court's decision cannot be carried out by the Constitutional Court. Elang said that the MKMK did not have legal reasons that could be the basis for the amendment or implementing the verdict. The Constitutional Court can only decide the guilt against constitutional judges ethically, as previously done to the Chief Justice of the Constitutional Court Akil Mochtar and former Justice of the Constitutional Court Patrialis Akbar.

Similar things were also explained by the Coordinating Minister for Political, Legal and Security Affairs Mahfud MD in a broadcast uploaded on Najwa Shihab's YouTube channel on 19 Okt 2023. In the show, Najwa Shihab, who acted as a moderator, asked Mahfud MD regarding the Constitutional Court's decision regarding the requirements for the minimum age limit for vice president at least 40 years or had experience being a regional head.

In his explanation, Mahfud MD said that theoretically the Constitutional Court should not decide the problem of the presidential and vice presidential age requirements because the Constitutional Court is a negative legislator.

"But once it is decided, there is also a argument that every Constitutional Court decision, whether you like it or not, is binding. The final," said Mahfud MD, quoted on Tuesday, November 7.

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