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Pakar: Jika Berbasis Moral, Putusan MK Bisa Batal

KMCNews – Guru besar hukum tata negara Universitas Jenderal Soedirman (Unsoed) Muhammad Fauzan menilai putusan Mahkamah Kontitusi (MK) Nomor 90/PUU-XXI/2023 bisa dibatalkan. Namun, pembatalan putusan itu hanya mungkin jika Mahkamah Kehormatan (MK) menemukan pelanggaran kode etik pada hakim-hakim yang mengeluarkan putusan tersebut.

“Jika putusan MKMK ternyata para hakim terbukti dengan sah dan meyakinkan telah melakukan pelanggaran kode etik, maka dalam perspektif moral, putusan yang telah diambil tidak memiliki legitimasi secara moral karena diputus oleh hakim yang telah terbukti melanggar kode etik,” ucap Fauzan kepada wartawan, Jumat (3/11/2023).

Putusan nomor 90 dikeluarkan merespons permohonan gugatan terhadap Pasal 169 huruf q Undang-Undang (UU) Nomor 7 Tahun 2017 tentang Pemilu yang mengatur batas usia minimal capres dan cawapres. Dalam putusan itu, MK menetapkan syarat pendaftaran capres-cawapres harus berusia minimal 40 tahun atau berpengalaman sebagai kepala daerah baik di tingkat provinsi maupun kabupaten dan kota.

Putusan itu membuka jalan bagi putra tertua Jokowi, Gibran Rakabuming Raka untuk melenggang menjadi pendamping Prabowo Subianto di Pilpres 2024. Saat putusan itu diketok Ketua MK Anwar Usman, Gibran masih berusia 36 tahun. Anwar saat ini berstatus sebagai besan Jokowi atau paman Gibran.

Keputusan itu berbuntut panjang. Sejumlah pihak melaporkan dugaan pelanggaran etik dalam putusan tersebut. MKMK pun dibentuk. Ketuanya, eks Ketua MK Jimly Asshiddiqie. Saat ini, perkara dugaan pelanggaran etik hakim MK itu tengah diselidiki. Sidang pendahuluan telah digelar.

Bila merujuk pada hukum tata negara positif atau sesuai dengan ketentuan Pasal 24 C Undang- Undang Dasar 1945, menurut Fauzan, keputusan MK lazimnya mesti diterima publik dan langsung berlaku tanpa upaya hukum.

Namun, proses hukum di MKMK membuka jalan untuk pembatalan putusan nomor 90. Jika mengutapakan aspek moralitas, Fauzan berkata, bisa saja MKMK mengesampingkan hukum tata negara yang selama ini berlaku di Indonesia.

“MKMK bisa menyatakan bahwa putusan yang diputus oleh hakim yang telah terbukti melanggar kode etik, putusannya tidak mengikat. Jika ini yang terjadi, maka akan ada dinamika hukum ketatanegaraan kita, dan pasti ini menimbulkan diskursus juga,” kata Fauzan.

Fauzan mengatakan, MKMK bisa juga tidak membatalkan putusan nomor 90 meskipun hakim MK terbukti melanggar etika. Namun, ia berharap MKMK membuat terobosan dengan menetapkan putusan hakim yang terbukti melanggar kode etik bisa dibatalkan.

“Pembatalannya ada dua cara. Pertama, pembatalan oleh MK sendiri atas perintah MKMK. Kedua, oleh MKMK yang memeriksa dan memutus laporan adanya pelanggaran kode etik,” kata Fauzan.

Aspirasi agar putusan MK dibatalkan juga disuarakan hukum tata negara Denny Indrayana. Dalam sebuah rilis pers, Denny berharap MKMK berani membatalkan putusan nomor 90 jika menemukan pelanggaran etika hakim dalam proses pengambilan putusan.

Ia juga meminta agar putusan terhadap dugaan pelanggaran etika para hakim MK dikeluarkan sebelum 8 November 2023 atau batas akhir pendaftaran capres-cawapres. Dengan begitu, pihak terkait, baik itu KPU, koalisi parpol, maupun pasangan Prabowo-Gibran, bisa menyiapkan diri merespons putusan.(*)

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