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Jakarta Post

Explainer: The problem with the 'cosmetic' Constitutional Court law revision

  • Ghina Ghaliya
    Ghina Ghaliya

    The Jakarta Post

Jakarta   /   Wed, September 9, 2020   /   04:16 pm
Explainer: The problem with the 'cosmetic' Constitutional Court law revision The justices of the Constitutional Court preside at a hearing in this undated file photo. The court of first and final instance has a nine-justice bench. (JP/Seto Wardhana)

The House of Representatives (DPR) has adopted a Constitutional Court (MK) law revision that increases the maximum term for its justices, a sticky issue since it first proposed revising the law.

The newly revised law, which the House passed on Sept. 1, 2020, increases the judicial term to 15 years and justices may not stand for reelection, whereas the original law limited a single judicial term to just five years, after which justices could be reelected for a second five-year term.

The law revision also allows Constitutional Court justices to hold office until the age of 70, a decade longer than under the previous law.

The revision technically extends the terms of the nine incumbent justices: For instance, Constitutional Court chief justice Anwar Usman may now remain in his role until 2026 instead of leaving the bench next year.

Potential interference & power abuse

A longer judicial term without better supervision could make justices susceptible to political interference that could eventually undermine the impartiality of the Constitutional Court as a court of first and final instance over the constitutional validity of how laws are interpreted and disputes on election results, say legal experts and activists.

The court is currently reviewing a number of petitions that challenge contentious laws, including the Mining Law and the Corruption Eradication Commission (KPK) law revision of September 2019.

Activists also accused the revised law of being a “trade-off” so politicians could potentially influence the court’s future decisions on public challenges to the numerous controversial bills the House is deliberating now, like the omnibus bill on job creation and the draft revision to the Criminal Code (KUHP).

They also expressed concern about the longer-term impacts of the revised law on potential for abuse of power and corruption at the court, one of the country's most powerful institutions.

Read also: Historic sentence for Akil

Lack of public scrutiny & vetting

The revisions focused largely on extending the judicial term, which the House claimed was intended to strengthen the court.

Lawmakers also raised the minimum age for justices from 47 to 55 to ensure that only “excellent” candidates would be eligible to be elected to the bench and improve its “quality”, according to Herman Hery, who chairs House Commission III on legal affairs that finalized the bill.

But the law revision does not correct the underlying problems in the judicial selection process, most notably the absence of transparency standards that regulate the process.

Nor does it make any significant changes to judicial supervision, experts say.

The revised law essentially reinforces the principle mandates of the previous law: a transparent, publicly open electoral process for selecting the court’s justices.

The law revision merely stipulates that the judicial selection process, under which the House, the President and the Supreme Court each nominate three justices, must be transparent and open to the public, as in the previous law. The only “tweak” that has been made is that the process to be “objective and accountable”, but it doesn’t address accountability to whom.

The three branches of government have employed different mechanisms in the past. For example, President Joko "Jokowi" Widodo involved a panel of independent experts to screen candidates, which marked a significant departure from his predecessor Susilo Bambang Yudhoyono.

Read also: Govt assures transparency in MK justice selection

Meanwhile, the House held candidate interviews that were open to the public, though experts say this was a mere formality. The Supreme Court, on the other hand, vetted its candidates mostly behind closed doors.

In terms of judicial supervision, the House lawmakers increased the membership of the court’s ethics council from five to six, with the new seat to be filled by a legal scholar.

But constitutional law expert Feri Amsari of Andalas University in Padang, West Sumatra, said that the “revision” did not make any far-reaching changes, suggesting judicial impeachment as a new provision that lawmakers should have incorporated in the revised law, particularly in light of their insistence on a longer judicial term.

Feri also believed that conflicts of interest had marred the deliberation process. 

“The extension to the judicial tenure seems like a ‘bribe’ to me,” he told The Jakarta Post on Wednesday.

Read also: MK rejects proposed reforms

He also expressed disappointment that the court itself had never objected to revising the law from the very beginning.

Constitutional Court justice Enny Nurbaningsih dismissed any suggestions that the court had any interest in revising the law. 

“Rest assured that justices will carry out our tasks independently,”she said, stressing that the independence of the judiciary was “a nonnegotiable principle”.

Titi Anggraini of Society for Elections and Democracy (Perludem) said the court must now prove that they were truly independent and free from all external interests, particularly any political influence when hearing cases, even when their decisions may not toe the populist line.

“After all, what are they worried about? They have safe jobs [until they turn 70]. They don’t even need to think about a second term. So it’s time for them to demonstrate their commitment to democracy and justice," she quipped.

Nontransparent deliberation

Not much is known about why the law was revised and who was really behind the proposal to do so. Activists have called into question the lawmakers’insistence on going ahead with deliberating the law revision when it was not an urgent need – and amid the multifaceted fallout from the ongoing health crisis, no less.

Read also: House in spotlight over plan to revise Constitutional Court Law

The House mostly kept its doors closed ever since the proposal to revise the law was first raised in April by House Legislation Body (Baleg) chairman and Gerindra Party politician Supratman Andi Agtas, and despite public calls for transparency.

The House made several changes to the draft bill before Aug. 24, when the government submitted its input and supporting arguments on the revised provisions to mark the start of deliberations. The legislature and the government then held three closed-door meetings on Aug. 26-28, with the two sides agreeing to the final version of the bill on Aug. 31. A day later on Sept. 1, 2020 the House passed the bill at a plenary meeting.

It took the legislature just eight days to deliberate the bill on the Constitutional Court law revision, among the fastest in the House’s history, including the mere 12 days it took to deliberate the highly contentious revisions to the KPK law in September 2019.

Violla Reininda of judicial watchdog KoDe Inisiatif criticized the deliberation process as problematic because it lacked transparency and denied public involvement. "They didn't even invite the court or the public. They rushed [the process]," she said.

Lawmaker Herman of the ruling Indonesian Democratic Party of Struggle (PDI-P) rebuffed the allegation, saying that all legislative hearings were open to the public.

"There was no such thing as a ‘trade-off’. We were professional,”he said. “We worked fast because we changed only a few substantive provisions.”