MK Ruling Was Expected
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Since early December, many have expected the Constitutional Court (MK) to issue a ruling that would declare the Corruption Eradication Commission (KPK) as part of the executive branch of government, in line with chatter among lawmakers regarding the presence of lobbying and deals made in darkened rooms.
The allegations turned out to be true. On Thursday (8/2/2018) afternoon, as I was stuck in a traffic jam heading to Halim Perdanakusuma Airport amid heavy rainfall, my two cell phones rang incessantly. I received an onslaught of texts and WhatsApp messages, as well as people calling me.
Many of the messages that I received wished to inform me on the matter and to ask if I had any opinion on it. I was told that, “through Ruling No 36/PUU-XV/2017 and Ruling No 40/PUU-XV/2017, the Constitutional Court rules that the Corruption Eradication Commission [KPK] is subject to the House inquiry right as it is part of the executive [branch].”
The question is, “What is your response on this ruling that is in contrast with your opinion?”
Those who called me gave similar information and questions. The first part of my response to all of them was the same: “Don’t be surprised as I have been convinced since early December that the ruling will be like this. At the time, there were rumors that eventually lead the discussion to the MK Ethics Council.”
I then split my next response into three parts: on the ruling’s position and implementation, on the content of the ruling itself on the House’ special committee on the KPK inquiry that has completed its sessions.
On the ruling’s position and implementation, I affirm that all Constitutional Court rulings are constitutionally final and binding for everyone. This is what we must accept if we wish to practice law properly. Indeed, as I will write at the end of this opinion piece, there is a problematic note specific to the ruling on the “executive-ication” of the KPK.
Lobbying between House and MK leadership
Since early December, I have strongly alleged that the Constitutional Court would reject the judicial review request on the constitutionality of Article 79 Point (3) of Law No. 42/2014 on Legislative Institutions against the 1945 Constitution. The court would surely rule that the KPK was part of the executive branch of government and is subject to the House’s inquiries.
My allegations first arose when I heard rumors of lobbying between important figures within the House and Constitutional Court. Furthermore, at the time, there was suddenly a statement that the House’s special committee on the KPK inquiry would extend its working period as it awaited the Constitutional Court’s ruling. The rumors were confirmed by statements from lawmakers about lobbying between the two state institutions on an exchange between the Constitutional Court ruling and the House supporting the reappointment of Constitutional Court justices.
I did not publicly express my allegations at the time as it might have backfired and be used to attack me with accusations of contempt of court. Furthermore, at the time, the rumors from lawmakers had not yet shown any signs that it would lead to the Constitutional Court’s ethics council. Nevertheless, despite my silence, I have expressed my personal thoughts to several activists: “The judicial review request will be rejected.”
I was of the opinion that we cannot obstruct Constitutional Court justices in making any ruling “in the name of conviction of justice,” despite our allegations of scheming in line with news reports. What we can legally do is to withdraw cases currently being processed by the Constitutional Court due to allegations that the institution is morally and ethically problematic.
Former KPK chairman Busyro Muqoddas and other petitioners ended up dropping their case, but the Constitutional Court still made its ruling as not all petitioners had withdrawn. The move by Busyro and others KPK officials was enough as a moral blow to all who still have morals.
The big question is whether the decisions of the House’s special committee on the KPK inquiry are now final and binding. This is another separate issue as I and many others have always deemed that the establishment and work of the special committee is juridically illegal because of at least three things.
First, the special committee began its questioning of various parties in June 2017, despite having only obtained its official approval of establishment on July 4, 2017.
Second, the special committee only comprised members from six of the House’s 10 factions. As time went by, reports emerged that only four factions remained as two others – the Golkar Party and the NasDem Party – withdrew. Article 201 Point (2) of Law No. 17/2014 stipulates that special committees must comprise all House factions.
Third, the special committee was established before the Constitutional Court ruled that the KPK was part of the executive branch of government. At the time, there were at least three Constitutional Court rulings stating that the KPK was not part of the executive, namely Ruling No. 012-016-019/PUU-IV/2006, Ruling No. 05/PUU-IX/2011 and Ruling No. 049/PUU-XI/2013. In line with Law No. 24/2003 on the Constitutional Court as amended by Law No. 8/2011, Constitutional Court rulings are implemented prospectively and not retroactively. Constitutional Court Rulings No. 36/PUU-XV/2017 and No. 40/PUU-XV/2017 issued in February 2018 could not be implemented retroactively on the House’s special committee that was established in June 2017.
Conflicting
I have another problematic note regarding this latest Constitutional Court ruling: its contents conflict with several previous court rulings that said the KPK was not part of the executive branch. All Constitutional Court rulings are equal in that they are all final and binding.
Moh Mahfud MD
The question is, which one of these conflicting rulings – all of which are final and binding – prevail? The answer should not be simplified by saying that the latest ruling nullifies all previous rulings in line with the principle of lex posteriori derogat legi priori (A legal rule arising after a conflicting legal rule).
The principle applies in creating abstract rules, such as laws, and not in making court rulings for concrete cases. Once a court ruling is final and binding, for the sake of legal certainty and to prevent ne bis in idem (not twice in the same thing)¸ the earliest ruling issued must prevail.
Moh Mahfud MD
Constitutional Court chairman 2008-2013
