Professor of Constitutional Law Explains the Oddities of the Constitutional Court Decision related to Age Limit for President/ Vice President Candidates

Prof. Dr. Muchamad Ali Safa’at, S.H., M.H., – Professor of Constitutional Law at UB

After the Constitutional Court read out several decisions on requests for judicial review regarding the constitutionality of Article 169 letter q of Law no. 7 of 2017 concerning General Elections which regulates the minimum age limits for presidential and vice presidential candidates, various opinions emerged from the public who also provided assessments of these decisions. There are people who are for and against the Constitutional Court’s decision, especially case number 90/PUU-XXI/2023.

Not a few people made various comments regarding the Constitutional Court’s decision which was read out on Monday (16/10/2023). Of the various decisions that have been read out, there is one case decision that has given rise to various public comments, namely the Constitutional Court Decision Number 90/PUU-XXI/2023 which decision granted part of the petition by stating the constitutionality of the age of presidential/vice presidential candidates which was previously set at “a minimum of 40 ( forty years).

Constitutional Court Decision Number 90/PUU-XXI/2023 states that the age of “at least 40 (forty) years” is contrary to the 1945 Constitution of the Republic of Indonesia and has no binding legal force, as long as it is not interpreted as “at least 40 (forty) years of age or ever /is holding a position elected through general elections including regional head elections.”

Prof. Dr. Muchamad Ali Safa’at, S.H., M.H., as Professor of Constitutional Law, Faculty of Law, Brawijaya University (HTN UB) also assessed that there were a number of irregularities in several MK decisions which tested the constitutionality of Article 169 letter q of the Election Law. He considered that the case that had been decided by the Constitutional Court was a final and last decision, so that no other legal remedies could be taken. According to him, there are four irregularities in the Constitutional Court’s decision assessing the constitutionality of the age limit for president/ vice president, especially in Constitutional Court Decision Number 90/PUU-XXI/2023.

First, MK Decision Number 90/PUU-XXI/2023 according to Prof. Ali has added norms that should not be in accordance with the initial concept of the Constitutional Court Decision, namely testing existing norms to be judged constitutional or unconstitutional. Meanwhile, in this decision the Constitutional Court granted the case’s request to add new norms that did not previously exist.

“Actually, academically, this (MK Decision Number 90/PUU-XXI/2023) is not in accordance with the initial concept of the existence of the Constitutional Court, which function is to test existing norms. Meanwhile, the request is to increase the norms. If you test existing norms, then the alternative is to test (whether) the norms are constitutional or not. This means that if what is being tested is the age requirement of 40 years, then the age of 40 years must be decided whether it is in accordance with the constitution or not in accordance with the constitution,” said Prof. Ali.

“Actually, in the Constitutional Court’s decision, 40 years is constitutional, but it turns out that new conditions were later added, so that what was tested was not 40 years. “Why is 40 years constitutional because that has also been confirmed in the Constitutional Court Decision which was decided on Monday,” he added.

Second, according to him, the Constitutional Court’s decision cannot be separated from the political atmosphere because this decision is currently entering the presidential and vice presidential nomination stage. Interestingly, the Constitutional Court’s decision also clearly states that there are parties who will benefit from the Constitutional Court’s decision, namely Gibran Rakabuming, who is the son of President Jokowi and the nephew of the Chief Justice of the Constitutional Court, Anwar Usman.

“MK Decision Number 90/PUU-XXI/2023 cannot be separated from the political context, because this decision is related to the deadline for registering president and vice president candidates. So the analysis is clear about who benefits from this decision. One of the clear beneficiaries (mentioned by name) in the decision, for example, is Gibran as the son of President Jokowi, so it is feared that the view will emerge that this is one of the president’s agendas to approve Gibran as a vice presidential candidate. “If the position of Chief Justice of the Constitutional Court has a family relationship with the president, this will raise problems, because judges cannot be related to the case being handled,” he stressed.

Third, according to Prof. Ali said that the Constitutional Court Decision Number 90/PUU-XXI/2023 was not decided unanimously because there were dissenting opinions and concurring opinions between panel of judges. There were several judges who stated that even though it was granted, it was rejected, and even that it should not be accepted.

“The opinions of the panel of judges vary, so if we read them not from a legal perspective then there is the question of which opinion should be followed? Meanwhile, from a legal perspective, the majority judge’s opinion must be followed,” explained Prof. Ali.

Fourth, according to Prof. Ali has a number of other strange things a, mainly the considerations of several judges expressed in dissenting opinions and concurring opinions, which is not common in a number of Constitutional Court decisions. For example, the dissenting opinion delivered by Prof. Arief Hidayat and Prof. Saldi Isra is concerned with the process of forming a decision, the trial process, the progress of the case, and even when the case was mixed up.

“The interesting thing is that some of them can be called oddities or irregularities which were put together by the constitutional judges themselves through dissenting opinions. Arif Hidayat, where it shows several things that are actually unusual, irregular, in the decision making process, in the trial process, in the progress of the case, starting from cases that were mixed up, the case itself was carried out without listening to information from the government and DPR as the Law creators, even though this is actually possible from judicial review cases. but when it results in the applicant’s case being granted, what’s more, the matter gets public attention because the trial process is carried out in a retributive and concurrent manner. (Even) the majority of judges themselves stated that this was a different issue,” he said.

Prof. Ali also responded to the issue of open legal policy in the Constitutional Court’s decision, which in theory could change. However, according to him, changes to the Constitutional Court’s decision should ideally not be changed in a very short time. He described that changes to the Constitutional Court’s decisions could change due to changing developments in society, changes in theory, or changes in arguments that could cancel or invalidate previous arguments.

“Theoretically, court decisions can change (including the Constitutional Court’s decision), but of course changes occur when conditions are different,” said Prof. Ali.

“(The change in the Constitutional Court’s decision) occurred when there was a stronger argument to cancel the previous argument and because the development of society is an evolutionary development. Secondly, we cannot change the argument in a short time, the argument must be built on changes in theory and so on, because the changes will definitely occur over a long period of time,” he stressed.

Prof. Ali emphasized that changes to the substance of the decision were normal, but usually occurred over a very long period of time. If, for example, this happens within a short period of time, questions arise, mainly related to alleged intervention from interested parties.

“What could have changed so quickly? This then indicates that there is intervention or other specific interests. And if you say whether it is reasonable, yes (of course) it is not reasonable because it is contrary or different from the customs of the judiciary where changes can occur but it takes quite a long time. Why? Because it was said that there is a change in society, there is a change in the theoretical framework and so on,” he said. (Endri/FH PR/OKY/UB PR/ Trans. Iir)