'€œHow to win a case in court: If the law is on your side, pound on the law; if the facts are on your side, pound on the facts; if neither is on your side, pound on the table.'€ (Anonymous proverb).

The proverb is relevant today, thanks to the graft case involving the former chief justice of the Constitutional Court, Akil Mochtar, as well as a member of the House of Representatives and local government officers.

The court was established in the wake of reforms to strengthen supremacy and the rule of law. Since its inception, the court has issued many progressive decisions, although some of them were controversial. Overall, the court has gradually restored people'€™s trust in the legal and judiciary system.

The bribery case is therefore tangible proof that judicial corruption does still manifest and that the court is not a '€œsterile'€ institution anymore.

Many have insisted that the court and its justices should be free from political influences and biases; as we know Akil was a politician before he was elected chief justice. There are reasons why law and the judicial system should be separated from political aspirations and influences.

Indonesia has long adopted a division of powers (trias politica), dividing the government into executive, legislative and judiciary branches. This formal separation, however, has not been followed by substantive division as evinced in the Constitutional Court Law, which gives the legislative and the executive branches the right to choose the court justices. This contradicts the Constitution, which only mandates the House to nominate justices.

Through either of these mechanisms, political aspirations may jeopardize the supremacy and impartiality of law. A justice who is elected by politicians may have '€œpolitical debt'€ and is vulnerable to being held hostage by them in the future. To prevent this from occurring, separation of powers should be exercised in both formal and substantive terms by lessening political intervention in the recruitment of justices.

The graft case has also unveiled problems in upholding legal morality within the court. A justice is a jurist whose thoughts are constructed by legal reasoning and interpretational processes, while external values should be reduced. From a moderate perspective (standing between Naturalists and Positivists), justices are not merely deciding cases based on legal proposition and doctrine, but also morally best values, because he or she is the guardian of the law and morality.

Politics and law are different both in their nature and goals. Politics, according to Machiavelli, aims to reach goals disregarding whether the mechanism is morally accepted or not. Politics, with its pragmatic values, is inclined to deconstruct the law based on its need. On the other hand, law, as Naturalists state, is filled with normative and moral values that prevent the judiciary from defending or supporting evil and the unjust.

Despite their inherent differences, it is universally recognized that both politics and law can be used to achieve the common good if they are domesticated by moral values. The idea of judicial activism has arisen with regard to facilitating judges to broaden their '€œjurisdiction'€ to the non-legal sphere, because the main purpose of the judiciary is to accommodate access to justice and to promote legal reform.

The court has experienced both '€œstrict'€ and '€œfluid'€ legal styles as practiced under former chief justice Jimly Asshiddiqie, who strongly upheld the legal supremacy and the integrity of the court and judiciary, as evident in its verdicts that were mostly based on legalism and positivism principles.

By contrast, during Mahfud MD'€™s term, the court practiced judicial activism by involving and broadening its scope to the non-legal sphere, which aimed to strengthen the idea of legal reform. Judicial activism is acceptable as long as there is no political aspiration behind it.

Politics and law are indivisible and unavoidable, but must be exercised harmoniously yet separately. It is not politics that should oversee the law, but law that should domesticate politics. To realize that, the law must first of all stay away from politics so the rule of law prevails.

Lastly, whoever wants to pursue a career as a justice or judge has to accept the destiny of self isolation from '€œexternal groups'€ to faithfully embracing the spirit of the law.

In the wake of the graft case, it seems that the court and its justices need a remedy before they can heal others.

The author, a lecturer at Lambung Mangkurat University, Banjarmasin, South Kalimantan, is currently studying at TC Beirne, School of Law, University of Queensland, Australia.

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