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Changes to tenure system underscore need for further Constitution Court reform
At present, there is a concern that justices bend to the institution that nominates them, calling into question their impartiality.
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The nine justices of the Constitutional Court preside over a hearing. (JP/Seto Wardhana)
T
he Constitutional Court is an essential part of Indonesia's justice system, established to strengthen the rule of law guaranteed by the Constitution. Since its inception, the court has been considered the guardian of the law, defender of democracy and protector of human rights. However, recent changes to the tenure of court justices and a lack of further reform threaten that reputation.
The court is charged with five main functions, the most important of which is reviewing national laws against the Constitution, a practice referred to as judicial review. To perform judicial review, the court interprets the Constitution to determine if a statute violates any constitutional provisions or principles.
In other words, the nine justices of the court can reject a law passed by nearly 600 legislators and the president, and there is no way to appeal the court’s decision. As the Constitution cannot speak for itself, this is a crucial function for checking governmental power and upholding the rule of law.
In giving the court the power of judicial review, Indonesian leaders drew on the example of the United States Supreme Court. But while both courts share a nine-member body with the ability to invalidate laws, the selection and tenure of justices differ dramatically.
In theory, Constitutional Court justices should be independent of political interests and devote themselves fully to the Constitution. The framers of the US Constitution attempted to ensure this by offering justices life tenure and requiring that they be appointed by the president and confirmed by a majority of the Senate. The hope was that subjecting justices to both elected branches of government, a justice would be properly vetted and enjoy legitimacy with the public.
And to protect the justice from making deals to secure confirmation, they would serve for life, negating the need for later reappointments and insulating them from popular criticism.
The process for becoming a justice on the Indonesian Constitutional Court is quite different. The President, House of Representatives and the Supreme Court each send three justices based on their own selection procedures, but they have no legal obligation to make this transparent or fair. The only constitutional requirement for justices is that they must have qualities of a “statesman”, but in the absence of oversight this is totally unenforceable. Functionally, if a justice can obtain the support of one of these institutions, they are assured a place on the Constitutional Court.
