Constitutional Justice Guntur Hamzah was declared to have violated the principle of integrity. However, the written warning sanction given to Guntur is considered strange and far from public expectations.
SUSANA RITA KUMALASANTI
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JAKARTA, KOMPAS — The Honorary Council of the Constitutional Court (MKMK), on Monday (20/3/2023), gave a written warning sanction on Constitutional Justice Guntur Hamzah because he was proven to violate the principle of integrity in the case of changing the Constitutional Court's (MK) decision Number 103/PUU-XX/2022 related to the dismissal of Constitutional Justice Aswanto. Guntur was proven to cross out the word (phrase) "thus" and change it to "onward" so that the decision changed meaning.
However, MKMK did not find a motive related to the deletion of the word (phrase) in the decision. MKMK also found a number of reasons for excusing Guntur, including the facts that from the beginning he bravely and frankly acknowledged his actions, and the deletion/construction of the decision is a usual practice in the MK as long as it is not carried out secretly, gaining approval from other justices. There is no standard operating procedure.
"The justice was proven to have violated the code of ethics and behavior of constitutional justices as stated in Sapta Karsa Hutama, in this case a part of the application of the principle of integrity. Giving a written warning sanction for the suspected justice," said chairman of MKMK I Dewa Gede Palguna in the pronunciation of the verdict in Jakarta.
Difficult to accept
A lecturer in the School of Law, Gadjah Mada University, Herlambang P Wiratraman assessed the MKMK decision as strange and far from public expectations. MKMK is considered to have failed to maintain the spirit of the MK. The verdict is difficult to accept by those with a healthy reason because the consequences of changes in the word in the decision were large.
"The recognition of a knightly attitude as a rationale for forgiveness is a paradox at the MK institution level. MKMK seems to be no longer sensitive to a sense of public justice, but is more based on the performers," he said.
A lecturer in the Islamic University of Indonesia, Allan FG Wardhana, was also surprised by the MKMK decision. "Obviously it is called violating the principle of integrity. In actual fact, integrity is the absolute requirement to become a justice of the Constitutional Court. GH [Guntur Hamzah] does not meet the requirement, right?" he said.
He quoted Article 24 C of the 1945 Constitution that states constitutional justices must have integrity and a personality that is beyond reproach, fair to be a statesman who controls the Constitution and state administration.
Meanwhile, Guntur Hamzah, when confirmed, claimed to be respectful of the MKMK decision. There are several points in the MKMK decision he noted, namely the suspected justices who were authorized to submit proposals for improvement, in the sense they were still within the limits of authority, duties and functions of implementing judicial power, did not have a motive and there were no regulations related to the procedures for submitting proposals before the reading of the verdict was finished.
In its consideration, the MKMK considered Guntur, as a constitutional justice, even though he has just been appointed, had the right to propose a change in phrase in the decision number 103/2022. "That means, legally, if the act was approved by other justices, at least the justice of the decision drafter, the decision was valid. Even though he did not become a hearing officer of the 103/2022 case, he was authorized," said Palguna. In addition, changes in the word (phrase) "thus" to "onward" have an impact on decision number 103/2022.
The decision to be read out is, "Thus, the dismissal of the constitutional justice before the end of his term of office can only be done for the [following] reasons: resigning for his own request submitted to the chairperson of the Constitutional Court, physically and spiritually sick continuously for three months so he does not carry out his duties as proven by a doctor's permit and being dismissed without honor for reasons as stipulated in Article 23 paragraph  of the Constitutional Court Law..." However, in a copy of the verdict and treatise of the trial, the word (phrase) "thus" changes to "onward".
According to MKMK, with the replacement of the word (phrase) "onward", the coherence in the verdict vanished, or was even conflicting. It also created an impression in the community the dismissal of constitutional justice Aswanto was legitimate; yet in the future, the action should not be repeated. In fact, what is meant is the dismissal in such a way, whenever done, is invalid.
Even though the change in the word (phrase) in the decision number 103/2022 was proven, MKMK did not find enough evidence related to the motive of the deletion of the word (phrase) "thus".
MKMK also provided a number of recommendations, namely it is important for the Constitutional Court to make Standard Operating Procedures (SOP) in cases when constitutional justices want to propose changes to the verdict being pronounced. The Constitutional Court was also advised to compile an SOP for the drafting of the minutes of the session, both for the minutes of ordinary trials and the trial of the pronunciation of the decision that has different characters.
No less important is the need for the MK to immediately form a permanent MKMK, by paying attention and considering the credibility and integrity of the figures that will be promoted in order to build public trust.
MKMK also recommended the MK regulations regarding MKMK be refined, especially the substance and procedures related to findings. No less important is the need for the MK to immediately form a permanent MKMK, by paying attention and considering the credibility and integrity of the figures that will be promoted in order to build public trust.
The MK was also asked to immediately make the MK Decision Renvoi number 103/PUU-XX/2022 dated 23 November 2022, namely by returning the word (phrase) "thus" into the legal considerations of the decision.
Yesterday, Anwar Usman took the oath of office as chairman of the MK for the 2023-2028 period together with Saldi Isra as deputy chairperson of the MK at the MK Building, Central Jakarta. President Joko “Jokowi” Widodo and a number of ministers were present. Anwar was again elected to become the chairperson of the MK after going through a series of elections last week. Meanwhile, Saldi was elected to occupy the position of Aswanto, who was dismissed by the House of Representatives and then replaced by Guntur Hamzah, who was previously secretary-general of the MK. (Z14)