Indonesian legal reform: Are we on the right track?

Begging to be different: A woman perfoms Minahasa’s popular Tuma Tanden dance at judicial review of the controversial Pornography law at the Constitutional Court. JP/Wendra Adistyatama

The Constitutional Court has been widely praised for its visionary bravery and often phenomenal rulings. The Jakarta Post’s researchs Frans Surdiasis and Rais Hidayat spoke with Constitutional Court chief Mahfud M.D. about the issue in a recent interview. The following are the excerpts:

Question: What is the Constitutional Court’s role in promoting legal reform?

Answer: We certainly cannot intervene in other state units or agencies. Apart from it being unethical, we have no time for it. But two aspects, the paradigm and management, are involved in the internal Constitutional Court organization. In terms of the paradigm, we at the court have declared that we will initiate the development of law oriented substantially toward justice.

So as a law enforcement institution, we uphold substantive justice instead of procedural justice. Consequently, the court has made various decisions without following the relevant laws to the letter, but has enjoyed satisfactory public reception.

For instance, in the dispute over regional elections, the law forbade us from ordering a vote recount, allowing us only to evaluate whether the General Elections Commission’s (KPU) decision was right, and promptly correct it if it was mistaken. But we believed the procedure was unfair, so we issued rulings that diverged from the stipulations in the law, such as ordering a recount, which were accepted by the public.

The 2009 legislative elections also recorded similar cases, with the Constitutional Court ordering recounts, for the sake of building justice, instead of merely following the legal provisions. In this way, we have gone beyond the letter of the law, but with a clear legal construction so the public can accept our decisions.

The other example is the identity card case, in which, based on the elections law, eligible voters are only those listed on the electoral role; but in my view, even if that’s the procedure, the real substance is violated. We made another breakthrough to free people from the electoral roll restriction by enabling ID cardholders to vote. Again, this received wide public acceptance, which means substantive justice.

So we’re building substantive justice in the Constitutional Court. Judges should have the courage to make rulings by overreaching the existing laws if they are unfair. That’s not to say the whole legal system in unjust, but some laws indeed contain unjust stipulations, which we should overcome.

There isn’t much on the managerial side. I only guarantee the independence of Constitutional Court judges. There are nine of them and they do not fall under my command. As judges, their decisions are different and separate. Don’t imagine it’s like other courts, where decisions are discussed with the presiding judge. It’s not the case at the Constitutional Court — it’s not even allowed. I bet the judges wouldn’t be influenced by even the court chairman, let alone other judges. Thus I forbid the judges from coming to me for consultation about the contents of dossiers, and we debate all cases in the session room.

That’s what I’ve maintained. That’s what makes us safe. If the command system is applied, if the presiding chairman is approached, the others will follow. At the Constitutional Court, the judges’ decisions are truly independent. So we never fear that the rulings are not individually made but jointly adopted.

Will 2010 be the right time to talk about the Constitution’s fifth amendment?

Yes, I think so. The year 2010 is the time to start discussing academic subjects on the fifth amendment of the Constitution, because we have a secure and peaceful atmosphere next year.

Because in the run-up to general elections, there’s no more tranquility, and the topics become political bargaining chips for further transaction or perhaps mutual threats through an article that will be amended. It’s like the House of Regional Representatives (DPD), which proposed an amendment as the 2009 general elections approached, under an unfavorable political atmosphere. If the amendment discourse begins in 2010, people will see the issue more clearly.

How would you evaluate and assess the process of legal reform in Indonesia?

Legal reform covers three aspects. First, it is the reform of material or substance; second, the reform of institutions; and third, the reform of culture.

I see the reform of the material aspect as quite sufficient because we have made whatever laws we need, such as the law on human rights, which is very comprehensive. We have also have included human rights in the amended Constitution. We have ratified nearly all important international conventions related to human rights. Therefore, in terms of substance, the reform has actually been quite satisfactory.

A problem arises from the aspect of structure or personnel. Structure in the sense of operational setup is fairly good. We have an independent institution of justice devoid of government intervention: the Constitutional Court and the Judicial Commission.

The National Police has been separated from the Indonesian Military (TNI), enabling the police to focus on security, protection and law enforcement. So the structural reform in the sense of operational setup is good enough.

How much longer do we need to conduct legal reform?

I believe in people power. The people’s voice is the voice of God. It means their voice is always backed by God. God is on the side of the oppressed all the time. In this context, I believe if the people are determined and bold enough to express their aspirations openly, firmly and insistently, God will defend them. We did it once against president Soeharto. We had no fear. I think we can bring about clean leadership through people power or what I prefer to call the people’s aspirations.