Ex aequo et bono: how does it work?
As far as the writer remember, the first philosopher who expose the use of equity was Socrates himself.
Soecrates was also the only person in the world who agreed to be punished with death sanction istead of revoking his teaching.
According to Soecrates if the law is to harsh equity may be given.
This is Latin pharase mean “according to the right and good” or “from equity and conscience”) that is used as a legal term of art.
In the context of arbitration, it refers to the power of arbitrators to dispense with consideration of the law but consider solely what they consider to be fair and equitable in the case at hand. However, a decision ex aequo et bono is distinguished from a decision on the basis of equity (equity intra legem), “Whereas an authorisation to decide a question ex aequo et bono is an authorisation to decide without deference to the rules of law, an authorisation to decide on a basis of equity does not dispense the judge from giving a decision based upon law, even though the law be modified”.
In.the context of the hotly debated general election Anis ( 01) and Ganjar( 03) demanded, among other, to allow a revoting on condition that 02 candidate is to be disqualified and the non litigant person that is our President Jokowi be impeached.
Does Constituional Court have power to decide on the case based on unjstified exaequo etbono?
The writer is of the opinion that the said Court shall also respect the law and may not issue an ultravires judgment, that is a judgement beyond the MK Court’s power.
MK is ofcourse not a robot, but it can not issue a judgment without legal basis.
Therefore, even if based on et bono demand the claimen have demanded to disqualify 02 , the inclusion of President Jokowi in.the petitum is totally legally basedless and absurd not to.mention a shame petition based on myopia of the claimen and their passion for power.
Beside the demand, revoting is also not stipulated in.the election law. MK can not rule as if the Court is not bound by law.
The court also is bound by law.
Jakarta, 2 April 2024.
H S
Practicing lawyer in Jakarta.
