Suhanderi, Taufikurrohman Syahuri, Ardilafiza Bengkoelen Justice, Vol.7 No. 2 November 2017

Transcription

1 THE INCONSISTENCY OF CONSTITUTIONAL COURT DECISION TOWARD THE LEGAL STATUS OF FORMER CRIMINAL IN LOCAL LEADER CANDIDACY Written by: Suhanderi, Taufikurrohman Syahuri, Ardilafiza ABSTRACT The aim of this research was to investigate, understand and analyze in depth the comparison of the legal consideration of Constitutional Court Decision Number 4/PUU-VII/2009 and Number 42/PUU- XIII/2015. The method used in this research was normative juridical focusing on reviewing the principles or norms in positive law by using statute approach, case approach, and conceptual approach. The result analysis indicated that there was an inconsistency on the Constitutional Court decision in deciding the requirement clause of local leader candidacy in the decision Number 4/PUU-VII/2009 and Number 42/PUU-XIII/2015. The decision Number 4/PUU-VII/2009 gave a chance for a former convicted person to join the local leader election 5 years after being released from prison, meanwhile for the decision Number 42/PUU-XIII/2015 states that a former convicted person can also join the local leader election without waiting for 5 years after completing the incarceration. Keywords: Constitutional Court, Former Convicted Person, Inconsistence, Local Leader. A. INTRODUCTION 1. BACKGROUND Constitutions are the product of politic. This is referred to Moh. Mahfud MD because constitutions are crystallisations, formalisations, or legislation of political wills that are competing one to another, through political compromise or the biggest political domination. 1 As the consequence, some constitution products are contradicted with Constitution of 1 Bachtiar, 2015, Problematika Implementasi Putusan Mahkamah Konstitusi pada Pengujian UU terhadap UUD, Raih Asa Sukses (PenebarSwadaya Grup), Jakarta, Page. 11. See also Moh.Mahfud, MD, 2010, Membangung Politik Hukum, Menegakkan Konstitusi, PT. RajaGrafindo Persada, Jakarta, Page 64 Republic of Indonesia Therefore, this constitution containing political message, the substance can be tested by law institutions to comply the common will and not harm society. In Indonesia administrative system, the institution authorising to annul that contradicting constitution is Constitutional Court. 2 Constitutional Court is formed to guarantee the law constitution enforcement. Hence, the Constitutional Court is usually called as guardian of constitution. 3 2 Jimly Asshiddiqie, 2006, Setengah Abad Jimly Asshiddiqie, Konstitusi dan Semangat Kebangsaan, Sumber Agung, Jakarta, Page 7 3 Jimly Asshiddiqie, 2006, Setengah Abad Jimly Asshiddiqie, Konstitusi dan Semangat Kebangsaan, Sumber Agung, Jakarta, Page

2 Constitutional Court is formed to guarantee the law constitution enforcement, so that, it is usually called as the guardian of constitution. 4 The formation of Constitutional Court was proposed in the reformation era 5 marked by the third amendment of Constitution 1945 Article 24 paragraph (2) and Article 24C. 6 The Article 24 paragraph (2) Constitution 1945 of Republic of Indonesia sate: The judicial power shall be implemented by a Supreme Court 4 Jimly Asshiddiqie, 2006, Setengah Abad Jimly Asshiddiqie, Konstitusi dan Semangat Kebangsaan, Sumber Agung, Jakarta, Page In fact, the idea of forming a Constitutional Court has been proposed for quite long. Muhammad Yamin, in the BPUPKI 1945 assembly, once proposed this idea to be adopted in the formulation of Constitution At first, the idea was based on a thought that it was necessary to test a constitution, Muhammad Yamin proposed that the Supreme Court shall be granted an authority to compare constitutions, by comparing each of them using norm system as (1) Constitutions 1945 (2) Islamic Sharia Law (3) Customary Law. According to Jimly Asshiddiqie The Yamin s idea is closely related to the George Jellineck s in the late 19 Century who proposed a similar idea in which Australian Supreme Court shall be given the authority to test constitutions. (See Bachtiar, 2015, Problematika Implementasi Putusan Mahkamah Konstitusi pada Pengujian UU terhadap UU, Jakarta, Raih Asa Suksees, Page 76-78). 6 Constitution 1945 of Republic of Indonesia has been amended from four times. The first amendment was legalised on 19 of October 1999, with 9 amended Articles. The second amendment was conducted on 18 of August 2000 and there were 25 articles were amended. The third amendment was established on 9 of November 2001 and successfully amended 23 articles. The fourth amendment was established on 10 August 2002 and successfully amended 13 articles 3 transitional regulation articles and 2 additional regulations (See, Taufiqurrohman Syahuri, 2011, Tafsir Konstitusi Berbagai Aspek Hukum, Kencana Prenada Media Group, Jakarta, Page. 37. and judicial bodies underneath it in the form of public courts, religious affairs courts, military tribunals, and state administrative court, and by a Constitutional Court. 7 In the Article 24C Constitution 1945 of Republic of Indonesia, stated that: (1) The Constitutional Court shall possess the authority to try a case at the first and final level and shall have the final power of decision in reviewing laws against the Constitution, determining disputes over the authorities of state institutions whose powers are given by this Constitution, deciding over the dissolution of a political party, and deciding disputes over the results of general elections. (2) The Constitutional Court shall possess the authority to issue a decision over an opinion of the DPR concerning alleged violations by the President and /or 7 The third amendment of Constitution 1945 of Republic of Indonesia. 236

3 Vice-President of this Constitution. (3) The Constitutional Court shall be composed of nine persons who shall be constitutional justices and who shall be confirmed in office by the President, of whom three shall be nominated by the Supreme Court, three nominated by the DPR, and three nominated by the President. (4) The Chair and Vice-Chair of the Constitutional Court are elected by and from the constitutional judge; (5) Constitutional judge must have integrity and a personality that is not dishonorable, snd shall be fair, shall be a states person who controlled the constitution and the public constitutions, and shall not hold any position as a as state official; (6) The appointment and dismissal of constitutional, procedural law and other provisions concerning the Constitutional Court shall be regulated by law. Authority to test laws toward Constitution of the Republic of Indonesia Year 1945 is the main task of the Constitutional Court as the guardian of the constitution. Decision of the Constitutional Court are final and binding which implies that no legal action can be taken toward the verdict. In deciding a case, the Constitutional Court must consider the various aspects of community life comprehensively, the values that live in the community. The problems, though the decision of the Constitutional Court are final and binding, but the decision is often not response positive, even less obtain a fierce challenge from state actors, non-judicial. This indicates that every decision of the Constitutional Court are final and binding although there will always be intercepted by the complexity of the problems, in reality tend not implementable, and the government seem to ignore what is specified in the decision. 8 It is seen in Constitutional Court Decision No. 42 / PUU-XIII / 2015 on Constitution Case Testing Act No. 8 of 2015 on the Amendment of Act No. 1 of 2015 on Enactment of Government Regulation in Lieu of Law No. 1 of Bachtiar, 2015, Decision Implementation Problems... Op Cit, P

4 concerning the election of Governor, Regents and Mayors as Law of the Constitution of the Republic of Indonesia Year This decision allows former convicts to run for being the head of the region with no limit or time periods (automatically be nominated as the head of the region after finishing jail sentence or otherwise free). Whereas clause which governing the head of the region nomination requirements is formed never been sentenced to imprisonment by a court decision that has had permanent legal force for committing a criminal offense punishable by imprisonment of five (5) years or more, which terminated in Case No. 42/PUU-XIII/2015 had already been decided by the Constitutional Court in the provision No. 4/PUU-VII/2009 on Case Type Testing Act No. 10 of 2008 on General Election of Members of the House of Representatives, Regional Representatives Board, and Regional House of Representatives, and Act No. 12 of 2008 regarding the Second Amendment to Law Number 32 of 2004 on regional Government with the provision that the former convict should run for the head of the region with a term of 5 (five) years since declared free from punishment. 2. Identification of problems Based on the description on the background above, the writer can formulate some issues regarding the title as follows: 1. How did the comparative legal considerations of the Constitutional Court No. 4/PUU-VII/2009 and No. 42/PUU-XIII/ 015 cause inconsistencies to the legal position of former convicts in the the head of the region nomination? B. RESEARCH METHODOLOGY The type of this research was legal research which was normative yuridical. A normative yuridical research is research that is focused on reviewing the application of the rules or norms in the positive law.the discussion based on the rules and books and other references regarding the Constitutional Court Decision Number 4/PUU-VII/2009 and No. 42/PUU-XIII/2015. Approach to the problem in this research is conducted through three approaches namely approach to law (statute approach), the approach of the case (case approach), and the conceptual approach (conceptual approach). 9 C. RESULTS AND DISCUSSION 9 Peter Mahmud Marzuki, 2012, PenelitianHukumEdisiRevisi, KencanaPrenadamedia Group, Jakarta, P

5 Constitutional Court Decision No. 4 / PUU-VII / 2009 and No. 42 / PUU-XIII / 2015 have risen to the contradictions and differences of opinion in the community, including government and legal experts in Indonesia. Anyone are considers that Constitutional Court inconsistency in its decision. It is quite reasonable, because the petition clause of both decision are exactly the same while the Constitutional Court, has a different view in its legal considerations that led to differences verdict. Petition clause is related to requirements for becoming a regional head (Governor, Regents and Mayors), whichnever been sentenced to imprisonment by a court decision that has had permanent legal force for committing a criminal offense punishable by imprisonment of five (5) years or more. Constitutional Court Decision No. 4/PUU-VII/2009 requires the period for an ex-convict who wants to run for the head of the region that is for five (5) years after being cleared. Constitutional Court Decision No. 4/PUU-VII/2009 requires the period for an ex-convict who wants to run for local office that is for five (5) years after being cleared.. In this decision the Constitutional Court agreed for one voice or no different opinion (dissenting opinion).while the Constitutional Court Decision No. 42/PUUXIII/2015 deleted the provision of five (5) years as stipulated in the Constitutional Court Decision No. 4/PUUVII/2009. An exconvict since being free, can participate directly or automated to run for local office without waiting period of 5 (five) years. Toward the verdict, the three Constitutional Judges expressed different opinion (dissenting),they are MariaFarida Indrati, I Dewa Gede Palguna, and Suhartoyo. No doubt, there is a difference in the community in addressing the second view of this decision, no one agrees with the decision of Constitutional Court No. 4/PUU-VII/2009, but not least also agree with the Constitutional Court Decision No. 42/PUU-XIII/2015. There is a problem between the decision of the Constitutional Court No. 4/PUU- VII/2009 and No. 42/PUU-XIII/2015 both in terms of studies and legal considerations in the implementation phase in the life of society. One of the fundamental considerations which led to the decision of the Constitutional Court No. 4/PUU- VII/2009 and No. 42/PUU-XIII/2015 different is the status of ex-convicts who have undergone punishment inpenitentiary. In Decision No. 4/PUU- VII/2009 states that the provision has limited apply for period of five (5) years 239

6 after the convict finished undergoing imprisonment under a court decision which already has permanent legal force. The argument is due to the elections of local headis not left entirely to the people without any requirement and solely on the grounds that it is the people who will bear all the risks of his choice. Therefore, to make people can critically assess candidates to be chosen, it should stipulate that the candidate who had been convicted for a criminal offense with imprisonment of five years or more should be explained openly to the public about his true identity so and do not cover up or conceal his background. In addition, the term of (5) five years is for the purpose of the adaptation process back into society. The five-years period is corresponding to the mechanism of adaptation of five years in the Public Election (Election) in Indonesia, whether it is Legislative Elections, Presidential Elections, and Election of Regional Head and Deputy Regional Head. Meanwhile, in decision No. 42/PUU-XIII/2015, the Constitutional Court ruled that the ex-convict who has been serving his sentence at the Correctional Institution is allowed directly to participate for local office (governor, regent or mayor), without having to wait for five (5) years. The argument is in accordance with the philosophy and objectives of Correctional states that a person who has run and out of Jail or Penitentiary is basically a person who has regretted his actions, repented and promised not repeat the actions. Thus, one exconvictwho already run a sentence at the Correctional Institution is considered clean and could blend into life as general public. So that if the person wants to nominate as Regional Head, he does not need to wait for five years, but can be directly run. There are weaknesses and strengths of each consideration in the Constitutional Court Decision No. 4/PUU-VII/2009 and Decision No. 42/PUU-XIII/2015. The Constitutional Court Decision No. 42/PUU-XIII/2015 is considered more appropriate than the Constitutional Court Decision No. 4/PUU-VII/2009, ifconstitutional Judge is guided on the perspectives of legal theories, approach of theory of punishmentand philosophical of Correctional alone. Meanwhile Constitutional Court Decision No. 4/PUU-VII/2009 is considered more appropriate than the Constitutional Court Decision No. 42/PUU-XIII/2015, if the Constitutional Judge considers the needs and social conditions of communities in the implementation phase. 240

7 One of prevailing theory criminal is a theory of objectives (relative theory). This theory states that the criminalization imposed on an offender is a form of guidance in order to become good human being. A criminal is inflicted on a person, not as concerned with a criminal offense, but in order to him not committing a crime and can be integrated into public life. That is, someone who has undergone sentencing in prison, should be regarded as a person who is considered not to have any more mistakes, because mistakes in question have already redeemed during the running of sentencing at the Correctional Institution, and the coaching process to be a good person has also been implemented. So the stigma of exconvicts as evil must be discarded. Exconvict has to be embraced back into society and given the opportunity to participate in the development process such as providing space for a post as local head. Meanwhile, if it is viewed from the perspective of the philosophy of the purpose of correctional, it states that the purpose of correctional is not only as revenge for those who committe the crime, but the most important is to develop the guilty to be responsible again and can live a normal life in society, as well as participate in the development process in society. This is in line with the objectives of the government as a model of restorative justice (restorative justice) and in line with Law No. 12 of 1995 concerning on Correctional. In addition, Correctional has not been fully successful and still been said to fail in the coaching process. This is among others due to: First, over capacity of inmates at the Correctional Institution. This is because the growth level or rate of Penitentiary occupants who are not directly proportional to the construction of infrastructure and facilities of Correctional Institution itself. Second, the problem of human resources and the integrity of the officer Penitentiary. Some of the results of such research, Marlina (1995) who studied the Coaching of Women Prisoners in Penitentiary Class II of Tanjung Gusta Medan, and Situmeang R (2008), about the function and role of the Correctional in Coaching Women Prisoners in Class II Tanjung GustaMedan, showed some resistances in the coaching process of prisoners. One of them is the coaching officers problems in Penitentiary. In this regard, the issue of training officer at the Penitentiary, in this case both Correctional Institutions as the object of both studies, could be said to not fully support the achievement of the objectives of development itself, given 241

8 that most of them relatively are not supported by the provision of skills to provide guidance with humanist touching the feeling of inmates, and capable inventive in fostering, either based on experience in performing tasks or based on knowledge acquired from school (eg Academy of Correctional Sciences, Psychological Sciences and others). The same thing also delivered by Deliani (2009), she argued that the fundamental problems occured at the Correctional Institution were on some meanssupportingthe development of inmates, they are limited professional personnel who are able to do fostering effectively. Administrative and financial means in this case are needed to manage a Penitentiary. 10 Another thing that is quite prominent in earlier cases is a matter of officers integrity in Penitentiary. Regardless of what factors cause it, this time it is not uncommon to hear that Penitentiary is being fertile ground for drug trafficking or the like. Pathetically, Correctional Institution officers who should protect, maintain and foster inmates even join in the illicit business. 11 This is one reason for 10 Rakei Yunardhani, Efektifitas Lembaga Pemasyarakatan di Indonesia, Jurnal Sosiologi, Vol. 15, No. 2: Hukum dan HAM Yasonna Laoly mengungkapkan data tahun 2015 menunjukkan terdapat sekitar 67 petugas terlibat narkoba dan tahun 2016 sekitar 54 petugas terlibat narkoba. unsuccessful Penitentiary in Indonesia in developing its established citizens to become better and can live to blend together the general public. Meanwhile,looking at the data of crime (crime) happens in Indonesia, it is still relatively very high. The high crime rate closely possibility is caused for Penitentiary due to lack of success in generating better inmates. Not a bit of convicts who were just out of Penitentiary are captured for re-commit crimes. Note in the Police Headquarters Operations Control Bureau shows the number of incidents of crime (crime total) in 2011 as many as cases, down to as much as cases in 2012, and increased again in 2013 to cases. 12 Indicatorof inmaximumof the Correctional process in producing clean inmates and can adapt well in society, is recognized by the government. Minister of Coordinating for Political, Legal and Security of Republic of Indonesia, Luhut Binsar Panjaitan in the news media as kompas.com disagree to a former of convict registering as a candidate of local head without prior adaptation process in public life (five years ( 12 Badan Pusat Statistik, 2014, Statistik Kriminal 2014, BPS RI, Jakarta, Page

9 according to the time of the election mechanism in Indonesia). According to Luhut, a former of convict who just runs sentence at the Correctional Institution could not be declared to be clean. There should be provision for ex-convicts requirements before joining the local head first which is adaptation process in society. Based on the social reality that illustrates the failure of the Correctional Institution in fostering the inmates, the Constitutional Court Decision on the Case No. 4/PUU-VII/2009 which requires a period of 5 (five) years for exconvicts to run for the local head as a process of adaptation in public is more appropriate than the consideration and Decision No. 42/PUU-XIII/2015 that allows former convicts to run for local head without any period of time. Consideration of Constitutional Court in Decision No. 42/PUU-XII/2015 connecting the Penitentiary in sociological and philosophical perspective of Correctional is based only on theory, not necessarily be used as the main guideline without looking at the social needs in the implementation phase. In connection with this, the Constitutional Court is expected to examine the state or social condition, so that in deciding a case, it is not only relies on legal theories alone, but must be sensitive to aspects of social life. Therefore, the Constitutional Court musta statesman. 13 The attitude of statesman is needed to see the problem comprehensively, not partially, and to interpret the constitution that could 13 Denny Indrajaya, in his work responding to OTT KPK upon Constitutional Judge Patrialis Akbar with the title of Patrialis Akbar dan Urgensi Perpu Anti-Mafia Peradilan, states that the requirement to become Constitutional Judge is the person should be a statesman due to the position is tempted for power and money. Even Presidential Position does not explicitly mention this requirement. A part of his work as the following:...it is truly not easy to write Constitutional regulation related to Constitutional Court (MK). One thing certain there are no other purposes but to find the best formula to keep MK from power abuse, including corruption. In composing the law regulations, I intentionally invited some law experts such as Prof. Saldi Isra, Prof. Zudan Arif Fakrulloh, Prof. Enny Nurbaningsih, Dr. Maruar Siahaan, Dr. Refly Harun, and Arsil from LeIP. By considering certain aspects, our argument agreed on three things that should be improved namely: constitutional judge selection process, the requirements candidates of constitutional judges, and surveillance improvement on constitutional judges. As the only position stated in UUD 1945 required the holder stands as statesman, then position as constitutional judge shall be full with great temptation of power and money. Even Presidential Position, the First man of the state, does not explicitly mention this requirement. Considering the rarity of statesman condition, then we agree upon the tight selection for this position. We realize that it is not an easy task to design the selection process that is in line with constitutional norms. However we agreed that the process shall be transparant, participative, and accountable. Therefore, the involvement of national figures as the expert panel in constitutional judge selection is the design we proposed. Under all circumstances, the proper selection process will result the professional and integrated constitutional judges and vice versa. Thus, the selection team consists of three constitutional judges from President, three from DPR, and three from MA, is the main key of the emerge of Majestic constitutional judge and Constitutional Court. (Full article of Denny Indrayana could be retrieved in: 243

10 answer the social problem in the society in line with the living constitution. Based on the analysis above, in a Constitution Judge in consideration making only concerns on law theories only, fact of law based on Social Philosophy, Relativity Theory, and Act No. 12 of 1995 concerning on Social, Constitutional Judge Consideration in Verdict No 42/PUU-XIII/2015 then it is precisely correct. However, this is not the ideal condition theoretically. To see the level of success of this theory then it should be seen from the success of implementation stage of Prison in the society whether it has been in line with the theory and expectation or rather been out of the norms or values applied the society. Based on the social reality that draws the failure of Prisonin guiding its inhabitants, then the Verdict of Constitution Court on Lawsuit No. 4/PUU-VII/2009 that requires the period of 5 (five) years for exprisoners to nominate himself as the Local Leader in government as the process of adaptation in society is rather appropriate compared to Verdict of Lawsuit No. 42/PUU-XIII/2015 that allows ex prisoner to nominate himself as Local Leader in government without any epoch. The Constitution Court on Lawsuit No. 42/PUU- XIII/2015, relating the Prison process from sociology perspective and philosophy of lawsuit based on theory, cannot be the main guidance without considering the social needs in the society in implementation stage. D. CLOSING 1. CONCLUSION In law consideration on Verdict of Constitutional Court No 4/PUU- VII/2009 and Verdict No. 42/PUU- XIII/2015 concerning on requirement of nominating Governmental Local Leader shall never be imprisoned by court with all law binding on it for committing crime punished for 5 years in jail or more, Constitutional Court has different opinion. Constitutional Court seems inconsistent in sentence the verdict. In Verdict No 4/PUU-VII/2009, it is stated that ex prisoner who wants to nominate himself as Governmental Local Leader shall wait for at least 5 years while in Verdict No. 42/PUU-XIII/2015 this point is eliminated (resulting to the ex prisoner could nominate himself immediately after the imprisonment ends). Though based on substantial clausal the petition is precisely the same. 2. SUGGESTION As the guardian of constitution, Constitutional Court shall enforce the substantial justice rather than formal justice. Unlike the case of Verdict of Constitutional Court No. 42/PUU- XIII/2015 that does not consider the 244

11 social reality as the Verdict No 4/PUU- VII/2009. DAFTAR PUSTAKA A. Buku-Buku Atmasasmita, Romli, 1995, Kapita Selekta Hukum Pidana dan Kriminologi, Mandar Maju, Bandung Ashiddiqie,Jimly, 2002, Konstitusi dan Konstitusionalisme Indonesia di Masa Depan, Pusat Studi Hukum Tata Negara Fakultash Hukum Indonesia, Jakarta , 2006,Setengah Abad Jimly Ashiddiqie, Konstitusi dan Semangat Kebangsaan, Sumber Agung, Jakarta , 2006,Pengantar Ilmu Hukum Tata Negara Jilid I, Sekretariat Jendral dan Kepaniteraan Mahkamah Konstitusi Republik Indonesia (MKRI). Bachtiar,2015,Problematika Implementasi Putusan Mahkamah Konstitusi Pada Pengujian UU terhadap UUD, Raih Asa Sukses (Penebar Swadaya Grup), Jakarta. Mahmud Marzuki, Peter, 2012, Penelitian Hukum Edisi Revisi, Kencana Prenadamedia Group, Jakarta. B. Internet /04/ /Mendagri.343.Kepala. Daerah.Tersangkut. Kasus.Umumhttp:// onstitusi.go.id/ C. Makalah, Jurnal, Laporan Jurnal Konstitusi, Volume 6, Nomor 1, April 2009: Malik Usman, Telaah Makna Hukum Putusan Mahkamah Konstitusi yang Final dan Mengikat. Refleksi Kinerja MK 2009 Proyeksi 2010 Mengawal Demokrasi Menegakkan Keadilan Substantif, 2009, MKRI. 245

12 246