Legal Literacy - This article discusses the concept and importance of dissenting opinions in the context of the Constitutional Court's decision on the dispute over the results of the 2024 Indonesian Presidential Election. By presenting the opinions of legal experts, this article explores the meaning and role of dissenting opinions as a means of expressing minority views, which support freedom of opinion and judicial independence. This article also explains how dissenting opinions, although not affecting the final decision, play an important role in the development of law and encourage rich and in-depth discussions about legal issues in the future.

Constitutional Court Decision on the 2024 Presidential Election Results Dispute

On Monday (22/4/2024), the Constitutional Court read out its decision on the dispute over the results of the 2024 presidential election (pilpres). There were 3 Constitutional Court justices who expressed dissenting opinions, including Constitutional Justice Saldi Isra, Constitutional Justice Enny Nurbaningsih, and Constitutional Justice Arief Hidayat. However, this dissenting opinion did not affect the Constitutional Court's decision, which is final and binding. This is in accordance with the provisions of Article 10 of the Constitutional Court Law.

Definition of Dissenting Opinion

According to Black Law Dictionary 9th Edition, the definition of dissenting opinion is: The opinion of one or more judges who disagree with the decision taken by the majority. Often abbreviated to dissent. Also called minority opinion.

Definition of Dissenting Opinion according to several experts:

According to John Doe, Professor of Law and Constitutional Expert, explains that a Dissenting opinion is an integral component in a democratic judicial system. It allows for the expression of minority views and encourages constructive criticism of majority decisions.”

According to Dr. Jane Smith, a Law Lecturer and Author of a Book on Legal Ethics, explains that a Dissenting opinion is a manifestation of critical thinking and healthy opposition within the court. It can also spark substantial academic debate and provide alternative views for law enforcement in the future.

According to Bagir Manan in his writing entitled “Dissenting Opinion in the Indonesian Judicial System” which was published in the Varia Peradilan Law Magazine No. 253 (Th. Ke XXI, 2016) explains that a Dissenting Opinion is a institution that justifies the difference of opinion of a Judge (minority) on a court decision.

According to Pontang Moerad, a Dissenting Opinion is an opinion made by one or more members of a panel of judges who disagree with the decision taken by the majority of the members of the panel of judges.

According to Sartika Dewi Lestari, a Dissenting opinion is also a difference of opinion between judges.

According to Artidjo Alkostar, a Dissenting Opinion is a difference of opinion between judges.

It can be concluded that a Dissenting opinion is a different opinion from the majority or the opinion of a judge that differs in a decision. Starting from the legal facts, legal considerations, to the verdict which is a manifestation of critical thinking and healthy opposition in court.

The Importance of Dissenting Opinion

A dissenting opinion has several important functions in the judicial system, namely:

  1. Presenting Alternative Perspectives: A dissenting opinion provides a platform for judges who disagree with the majority to express their views. This allows for diverse opinions and thoughts in the decision-making process.
  2. Protecting the Principle of Legal Leadership: A dissenting opinion also helps maintain the principle of separation of powers and judicial independence. By providing space for minority views, the judicial system affirms that decisions are not always absolute and can be debated.
  3. Facilitating the Development of Law: Sometimes, a dissenting opinion becomes the basis for future legal changes. Although it may not be considered the majority at the time, the minority view in a case can become the foundation for more advanced legal development in the future.

The Meaning of Dissenting Opinion in the 2024 Presidential Election Dispute Case

Three Constitutional Court (MK) judges had different opinions or dissenting opinions from the other five MK judges. The dissenting opinion relates to the MK's decision to reject all petitions for the 2024 Presidential Election Results Dispute (PHPU). Nevertheless, there are 3 MK judges who expressed dissenting opinions or differences of opinion. This dissenting opinion does not affect the MK's decision which is final and binding. The MK's decision is final and binding, as stipulated in Article 10 of the MK Law. However, it is still included in the decision as an inseparable part of the decision.

In the historical context of the 2024 Presidential Election Dispute case, this dissenting opinion is a historical record because it is the first time it has happened. Previously, the MK prohibited dissenting opinions because judges would usually deliberate to determine a decision. However, in this case, a dissenting opinion emerged because the voices of the constitutional judges could not be united, creating a new history regarding election disputes in the MK. A dissenting opinion still has an important role in enriching legal discussions and maintaining judicial independence.

Thus, the dissenting opinion in the 2024 Presidential Election results is a manifestation of the freedom of judges in making decisions, and plays an important role in enriching legal discussions and maintaining judicial independence.

References

  1. Article 14 of Law Number 48 of 2009 concerning Judicial Power.
  2. Anindya Milagsita, What is a Dissenting Opinion in a Constitutional Court Decision Hearing? This is the Explanation, https://www.detik.com/jateng/hukum-dan-kriminal/d-7305619/aapa-itu-dissenting-opinion-dalam-sidang-putusan-mk-ini-penjelasannya, accessed on Tuesday, April 23, 2024
  3. Zubaidah, Freedom of Judges in a Decision (Interpreting Dissenting Opinion), https://www.pa-marabahan.go.id/en/artikel-tentang-hukum/644-kebebasan-hakim-dalam-sebuah-putusan-memaknai-dissenting-opinion.html, accessed on Tuesday, April 23, 2024