Constitutional Court: Independence of the last resort
The Jakarta Post
The Jakarta Post
With the establishment of the Constitutional Court in 2003, citizens were entitled to request changes or annulments to laws and election results without fear of intimidation ' a dramatic leap from the authoritarian era. With the third batch of Justices recently sworn in, a big question is: How far will they be able to maintain their independence, particularly amid the heightening political situation ahead of the 2014 general elections. The Jakarta Post's Prodita Sabarini and Ina Parlina filed the following reports.
The courtroom at the Constitutional Court exuded an amiable atmosphere when Akil Mochtar won the Chief Justice seat on April 3. His colleagues shook his hand and planted kisses on his left and right cheeks. Akil immediately pledged independence as Justice of the Court (MK).
Judicial independence is one of the main principles of the Constitutional Court, a result of constitutional amendments in the reformasi era. The Court, the final adjudicator of disputes on the interpretation of national laws and election results, gives strong authority to the nine Justices on the bench to guard democracy.
With the general elections a year away, the question has been raised about how impartial the court can remain.
According to Refly Harun, a former staff member of the Court under first Chief Justice Jimly Asshidiqqie, the court was not immune to political influences, especially in rulings on election disputes.
'In general elections and regional elections, certain 'viruses' emerged within the Court ' for example, then Justice Arsyad resigned because his family was implicated in a bribery case regarding an election dispute in the South Bengkulu regental elections,' said Refly, who had testified on the case.
Arsyad Sanusi then requested for early retirement in 2010 following investigations by the Court's Honorary Council.
Akil, a former Golkar politician, was also accused of ethics violation following allegations that he had received US bank notes equal to Rp 1 billion (US$ 111,000) from Jopinus R. Saragih, a regent from Simalungun, North Sumatra, to ensure the latter's victory in the 2010 local election. But the Honorary Council cleared Akil of the allegations.
Refly said there were always people who wanted to influence the Justices, including political parties.
A researcher focusing on the Constitutional Court's judicial behavior, Fritz Edward Siregar, said that there were generally two types of Justices: The doctrinist who follows a strict legalistic approach in interpreting the law and the realist who considers the political reality surrounding a law.
'The current Court Justices, starting with Mahfud MD, made the court a 'realist' one,' said Fritz in an email. He cited the Court ruling that led to the dissolution of oil and gas regulator BP Migas.
In 2012 the Court, led by Mahfud MD, stated that the articles concerning the regulator in the Energy Law were unconstitutional.
Fritz views that the Court's decision overlooked a thorough examination into the legal standing of the plaintiffs comprising 42 organizations, including Indonesia's second largest Islamic organization, Muhammadiyah.
Expert witnesses from the plaintiffs said BP Migas had favored foreign interests over national interests. Political observers say that the plaintiffs' move may have been an attempt to gain popularity by inflaming nationalistic sentiment ahead of the 2014 presidential election.
Justice Harjono dissented, saying that the Court had failed to thoroughly review the plaintiffs' legal standing and that BPMigas was a representative of the state, thereby its existence was consitutional.
Mahfud, meanwhile, a former defense minister and a member of the National Awakening Party (PKB), is known for his close relations with Islamic organizations Nahdlatul Ulama (NU) and Muhammdiyah.
His biographer, Rita Triana Budi, has said that Mahfud was born into NU culture and grew up with Muhammadiyah culture. The former Chief Justice has announced his interest in running for president.
Another controversial Court ruling was the annulment of the government's purchase of 7 percent divestment shares of PT Newmont Nusa Tenggara.
The Court said the purchase by the State Investment Agency under the Finance Ministry should have acquired parliamentary approval. Akil was accused of being influenced by Golkar.
The House of Representatives recommended that the stake should have been acquired by the West Nusa Tenggara local administration, which was backed by a joint venture with Multicapital,a business unit of mining giant Bumi Resources controlled by head of the Golkar party, Aburizal Bakrie.
Akil joined the Golkar Party just as the New Order regime fell in 1998 and became one of its legislators in 1999. 'People often think that because I was with Golkar, I sided with them, but they don't know the reality,' he said.
Akil said that his relationship with Golkar has been strained since 2004. Akil won more than 100,000 votes in his electoral district and returned to the House. He then decided to run as governor of West Kalimantan as an independent candidate. He lost and so did Golkar's candidate, incumbent Usman Djafar. Akil said that it cost him the party's support when he applied for Constitutional Court Justice.
When he was appointed Justice, many Golkar members sought assistance for various cases, but he said that he would help 'if they can get the other eight Justices to agree...' It's impossible to get through all eight Justices, he added.
Three institutions ' the House of Representatives, the President and the Supreme Court ' are each entitled to appoint three justices for a five-year tenure.
Maria Farida Indrati, the only female Justice whose dissenting opinions on the Anti-Pornography Law and Blasphemy Law were widely seen to favor a pluralistic view of Indonesia, was appointed by the president along with Achmad Sodiki, an agrarian law expert and Hamdan Zoelfa, a former Crescent Star Party (PBB) politician and lawyer.
'As long as I've served here, I haven't seen connections between the Justices with political backgrounds and political parties,' Maria said. She added that all final decisions lied with the nine Justices.
Yet, one can still sense the ideological and political leanings of Justices from their dissenting opinions. Hamdan Zoelfa, a PBB co-founder, was the only Justice that raised a dissenting opinion in the Court ruling on the law on witness and victim protection, requested by then graft suspect and former chief detective Corm. Gen. Susno Duadji.
Susno, who was recently convicted of graft but has yet to be incarcerated due to a vague legal ruling by the Supreme Court, joined the Crescent Star Party.
Jimly Asshidiqqie, the former and first Chief Justice, said the Justices' own ideologies, the influence of the institutions that selected them, along with other political interests, could shape their decisions.
Back then, Jimly said that all justices were able to abnegate the influence of their original institutions and maintain their independence. 'During the first period, we all tried to be role models to lay down the benchmark for the Court', focusing 'only on the interests of the state', Jimly said.
According to Firmansyah Arifin of a judiciary watchdog the Indonesian Legal Roundtable, the institutions that appointed the Justices would inevitably influence their decisions. His concern was that the recruitment process of the nine justices was not transparent enough, particularly those from the Supreme Court.
'Many of us don't know why they were chosen by the Supreme Court,' he said. 'We don't want a repeat case of a disgraced justice,' Firmansyah said, referring to Arsyad's resignation .
Firmansyah acknowledged that some former Supreme Court Justices during Jimly's leadership, such as Maruarar Siahaan and Laica Marzuki, had set a positive benchmark for the justices coming from the Supreme Court. Maruarar and Laica, were among four justices who dissented and ruled against the death penalty in 2007.
Refly said that generally, MK was still a trusted state institution, along with the Corruption Eradication Commission (KPK) and the Anti-Corruption Court (Tipikor).
But one way to ensure Justices' independence was to make the position the end of the line of a political or judicial career. 'Many people instead have used the Court as a stepping stone for a political career,' he said.
Both Jimly and Mahfud have shown interest in running for president. When asked his opinion regarding whether the MK Justice position should be the ultimate position for judges, Akil said he agreed. 'I will return home and be a farmer after this,' he said.
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